Texas’s new social media law is likely to face an uphill battle in federal court

Texas Governor Greg Abbott makes a speech.

In early September, Texas Governor Greg Abbott signed into law House Bill 20, a new social media law targeting what Gov. Abbott called “a dangerous movement by social media companies to silence conservative viewpoints and ideas.” In late September, NetChoice and the Computer and Communications Industry Association (CCIA) sued Texas in federal court, arguing that HB 20 “violates the First Amendment of the Constitution.”

Under HB 20, which applies only to the largest U.S. social media companies, “a social media platform may not censor a user, a user’s expression, or a user’s ability to receive the expression of another person based on . . . the viewpoint of the user or another person.” This prohibition applies only if the “user” is a person who resides in, does business in, or “shares or receives expression” in Texas. The law is set to take effect on December 2, 2021.

There are strong arguments against the law’s constitutionality. Social media companies are private entities, and as such there is extensive First Amendment jurisprudence (and a statute: Section 230) supporting their right to make content decisions as they see fit. That right includes the flexibility to make content decisions that reflect, or are perceived to reflect, political bias. As NetChoice wrote in an announcement explaining the First Amendment problems posed by the law, “not only does [HB 20] compel private online businesses to host content they would otherwise remove or restrict, it applies ‘viewpoint-based restrictions’ to all users and specifically prevents websites from deciding based on the ‘viewpoint’ expressed in the post.”

To take a particularly stark example of the First Amendment problems posed by HB 20, consider the issue of racist speech. A social media company clearly should have the right to block or remove racist and other hateful posts. That right shouldn’t be undermined by handing the authors of those posts legal support allowing them to claim that their posts merely express a “viewpoint” and thus must under Texas law be allowed on the platform.

“It strains credulity to suggest that using the full power of the state to compel a private entity to host that speech poses no First Amendment concern.”

Defenders of HB 20 might respond by pointing out that the law contains a provision permitting social media companies to remove posts containing “specific threats of violence targeted against a person or group” because of race, religion, and other attributes. Yet there is plenty of speech that stops short of including “specific threats of violence” but is nonetheless hateful and abhorrent. It strains credulity to suggest that using the full power of the state to compel a private entity to host that speech poses no First Amendment concern.

In responding to the lawsuit, what arguments might Texas make to support the assertion that the First Amendment permits the sort of government control over content decisions that HB 20 seeks to impose? Texas will likely cite several Supreme Court rulings that have compelled private parties to host content that they might oppose or simply not want to carry. As UCLA Law professor Eugene Volokh explains in a new paper in the Journal of Free Speech Law, “the clearest First Amendment analogs would be cable must-carry rules (which are sometimes labeled ‘quasi-common-carrier’ rules) and rights of access to the real estate of shopping malls and universities.”

In Turner Broadcasting v. FCC in 1994, and again in 1997, the Supreme Court considered the “must-carry” provisions of the Cable Television Consumer Protection and Competition Act of 1992 (the 1992 Cable Act). As the Court explained in its 1994 opinion, the 1992 Cable Act requires “cable operators to carry the signals of a specified number of local broadcast television stations.” The Court found that these requirements were content-neutral, and that their constitutionality should therefore be evaluated under a legal standard known as “intermediate scrutiny” rather than the more exacting “strict scrutiny.” When the case returned to the Supreme Court in 1997, the Court concluded that “the must-carry provisions are consistent with the First Amendment.”

In 1980 in Pruneyard Shopping Center v. Robins, the Supreme Court weighed a challenge to a California constitutional provision allowing members of the public to gather petition signatures and hand out pamphlets on the property of privately owned shopping centers. The Court concluded that the provision did not violate the shopping center owners’ First Amendment (or property) rights.

In 2006 in Rumsfeld v. FAIR, the Supreme Court considered whether the federal government could require universities, including private institutions, to host military recruiters on campus if they were also hosting non-military recruiters. FAIR, a coalition of law schools, argued that this violated the schools’ First Amendment rights. The Court disagreed, finding no First Amendment violation.

In the aggregate, the three rulings above show that the government can sometimes compel private parties to host speakers that they would prefer to exclude. Thus, an important legal question is not whether the government can sometimes compel a private entity to host speech without violating the First Amendment—the answer is clearly yes—but rather how expansive that governmental authority is. Fully defining the exact limits of that authority is extremely difficult, and has yet to be fully resolved.

Fortunately, the question before the federal district court in the Texas case, NetChoice v. Paxton, is much simpler: however broad governmental authority to compel hosted speech might be, does HB 20 clearly exceed it? The answer is yes; i.e., HB 20 is unconstitutional, as it grants the government overly expansive power over speech in a manner that conflicts with the First Amendment rights of social media companies.

Texas isn’t the only state where such concerns have arisen. The plaintiffs in the Texas case, NetChoice and CCIA, are also the plaintiffs in a suit challenging Florida’s recently-enacted social media law, SB 7072, which was enjoined on First Amendment grounds just before it was set to take effect in summer 2021.

There are indeed pressing policy concerns raised by the actions of social media companies. But the response to those concerns shouldn’t be state laws that infringe constitutional rights.

Amazon, Apple, Dish, Facebook, Google, and Intel are members of the Computer and Communications Industry Association and general, unrestricted donors to the Brookings Institution. Amazon, Facebook, Google, and Verizon are members of NetChoice and general, unrestricted donors to the Brookings Institution. The findings, interpretations, and conclusions posted in this piece are solely those of the author and not influenced by any donation.