The big-name social media companies have all done a rather atrocious job of moderating user speech on their platforms. However, much like Florida's similarly unconstitutional attempt to address the issue (S.B. 7072), Texas' recently enacted H.B. 20 would make the matter worse for Texans and everyone else.
Signed into law by Governor Abbott last week, the Texas law prohibits platforms with more than 50 million users nationwide from moderating user posts based on viewpoint or geographic location. However, as we stated in our friend-of-the-court brief in support of NetChoice and the Computer & Communications Industry Associations lawsuit challenging Florida's law (NetChoice v. Moody), "Every court that has considered the issue, dating back to at least 2007, has rightfully found that private entities that operate online platforms for speech and that open those platforms for others to speak enjoy a First Amendment right to edit and curate that speech."
Inconsistent and opaque content moderation by online media services is a legitimate problem. It continues to result in the censorship of a range of important speech, often disproportionately impacting people who aren’t elected officials. That's why EFF joined with a cohort of allies in 2018 to draft the Santa Clara Principles on Transparency and Accountability in Content Moderation, offering one model for how platforms can begin voluntarily implementing content moderation practices grounded in a human rights framework. Under the proposed principles, platforms would:
- Publish the numbers of posts removed and accounts permanently or temporarily suspended due to violations of their content guidelines.
- Provide notice to each user whose content is taken down or account is suspended about the reason for the removal or suspension.
- Provide a meaningful opportunity for timely appeal of any content removal or account suspension.
H.B. 20 does attempt to mandate some of the transparency measures called for in the Santa Clara Principles. Although these legal mandates might be appropriate as part of a carefully crafted legislative scheme, H.B. 20 is not the result of a reasonable policy debate. Rather it is a retaliatory law aimed at violating the First Amendment rights of online services in a way that will ultimately harm all internet users.
We fully expect that once H.B. 20 is challenged, courts will draw from the wealth of legal precedent and find the law unconstitutional. Perhaps recognizing that H.B. 20 is imperiled for the same reasons as Florida’s law, the Lonestar State this week filed a friend-of-the-court brief in the appeal of a federal court’s ruling that Florida’s law is unconstitutional.
Despite Texas and Florida’s laws being unconstitutional, the concerns regarding social media platforms' control on our public discourse is a critical policy issue. It is vitally important that platforms take action to provide transparency, accountability, and meaningful due process to all impacted speakers and ensure that the enforcement of their content guidelines is fair, unbiased, proportional, and respectful of human rights.
