Facebook, YouTube, Twitter and other large platforms are now “common carriers” in Texas and no longer have the right to “discriminate against different views.”
That's according to Texas Attorney General Ken Paxton, who is urging a federal judge to allow enforcement of a new state law that prohibits large platforms from suppressing posts based on the viewpoint expressed.
That law (HB 20), which is slated to take effect next month, lets companies remove illegal content, but requires them to host a large variety of objectionable speech. A proposed amendment that would have explicitly allowed the companies to remove vaccine misinformation failed, as did a proposed amendment that would have explicitly allowed companies to take down posts denying the Holocaust.
The industry groups NetChoice and the Computer & Communications Industry Association recently sued to block the law, arguing it violates the First Amendment by “striking at the heart of protected expression and editorial judgment.”
Paxton counters in his new papers that “common carriers” -- a description he insists applies to Facebook, YouTube and Twitter -- don't have the same kinds of First Amendment rights as other companies.
“The Texas Legislature has specifically designated the platforms as common carriers,” Paxton argues in papers filed this week with U.S. District Court Judge Robert Pitman in Austin. “They have no First Amendment injury due to H.B. 20’s requirement that they treat their users’ viewpoints indiscriminately.”
A host of outside organizations, including the digital rights group Electronic Frontier Foundation and the Reporters Committee for Freedom of the Press, are siding with the tech industry in the battle.
The Reporters Committee said in a friend-of-the-court brief filed with Pitman in October that the law “poses an acute threat” to the media's First Amendment protections.
“Any law that authorizes the government to police the content of lawful speech on a private communications platform could permit government officials to force platforms to host speech perceived as favorable to the government or to pressure platforms to remove speech perceived as unfavorable,” the Reporters Committee, along with the American Civil Liberties Union, Center for Democracy & Technology and The Media Law Resource Center, wrote.
“State-mandated viewpoint neutrality cannot be neutral; it will necessarily reflect the exercise of 'editorial control and judgment' by the state,” they added.
On Tuesday some conservative news organizations, including The Babylon Bee, filed a friend-of-the-court brief in support of the Texas restrictions on social media platforms.
“H.B. 20 ensures that these massive companies will not mess with Texas or Texans,” they write.
Their brief also reiterates conservatives' oft-repeated claim that Silicon Valley companies discriminate against right-wing views -- despite the complete lack of evidence that tech companies disproportionately suppress conservative viewpoints.
Florida also recently took aim at social media companies. That state passed a law subjecting social media companies to fines of $250,000 per day for “deplatforming” candidates for statewide office, and $25,000 per day for other offices. (The bill defines deplatforming as banning a user for more than 14 days, or permanently deleting the users' account.)
U.S. District Court Judge Robert Hinkle in Tallahassee blocked the bulk of the law earlier this year, ruling it probably violated the 1st Amendment.
Florida officials recently urged the 11th Circuit Court of Appeals to reverse Hinkle's ruling and allow the law to take effect.