Texas enacts viewpoint discrimination ban for platforms

Last week, Texas Gov. Greg Abbott signed into law a new statute regulating social media content moderation, two months after a federal judge suspended a similar Florida de-platforming law on constitutional grounds.

The Texas statute regulates, among other things, social media platforms with more than 50 million users and purports to prohibit them from censoring content based on the viewpoint of the user. Before signing the law, Abbott expressly stated it was meant to target the “dangerous movement by some social media companies to silence conservative ideas and values.”

The Texas law is drawing obvious parallels to that Florida de-platforming statute suspended in July for violating the First Amendment. State legislators in both Texas and Florida have said they are motivated by the same thing: perceived dissatisfaction with the way social media platforms are choosing to moderate content and users on their respective platforms.

However, in Miami Herald Publishing Co. v. Tornillo, the U.S. Supreme Court affirmed that, with respect to newspapers, the discretion to publish or not publish content is virtually absolute, and cannot be subject to regulation by the government. As the Reporters Committee and others argued in a challenge to the Florida law, permitting a “must-carry” mandate for online platforms would erode essential Tornillo protections for everyone.

In July, the judge who suspended portions of the Florida law substantially agreed with that argument.

Notably, Texas Attorney General Ken Paxton, who has himself blocked critics on Twitter for expressing their viewpoint, would be authorized under the Texas law to enforce viewpoint neutrality as he sees it by bringing action to enforce a violation of the law against social media platforms. The Reporters Committee is supporting Twitter in its challenge in California to Paxton’s attempts to compel platforms to disclose internal moderation policies in a deceptive practices investigation.

We will continue to follow this evolving story.

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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Gillian Vernick.