Senate Bill (SB) 12, filed by Sen. Bryan Hughes (R-Mineola), aims to open the door for censored or deplatformed users to sue social media platforms to be allowed to express their viewpoints.
Hughes says that the legislation “threads a needle” to work around Section 230 of the Communication Decency Act of 1996, which shields online platforms from liability for censoring user content, especially of an obscene nature.
“These sites need to moderate content like violent or overtly sexual posts. However, they cannot deny you participation based on your viewpoint, including your political preferences or religion,” said Hughes in the bill’s analysis.
Instead of broadly banning all censorship, SB 12 specifically prohibits the censorship of “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.”
The prohibition also applies to censorship based on the viewpoint of a post or on “a user’s geographic location” in any part of Texas.
Though a user can sue to be allowed back on the platform and cover the cost of attorney’s fees, the bill stops short of allowing courts to fine companies for the censorship because of the liability shield in Section 230.
The bill was heard in the Senate State Affairs Committee, chaired by Hughes, on Monday.
At that time, a committee substitute was accepted that defines “social media platform,” and creates a new section that would require platforms to have a clearly established process of investigating complaints of censorship violations within 24 hours of a user’s complaint.
“Remarkably, these tech giants will reflexively bend the knee to woke-ism and even the Chinese Communist Party, yet they cannot muster the courage to tolerate online speech that questions their narrow and misguided world view,” said Hughes in a press release. “Big Tech is about to learn that Texans are a free and independent people, and we are not accustomed to yielding to bullies.”
Texas is not the first state with lawmakers aiming to push back against social media companies for censorship that culminated in January with the mass deplatforming of then-President Donald Trump near the end of his term.
At the beginning of February, Florida Governor Ron DeSantis alongside his state’s top lawmakers announced support for similar legislation that aims to stop censorship.
At a press conference in Tyler last week, Abbott touted the legislation.
“With SB 12, Senator Hughes is taking a stand against Big Tech’s political censorship and protecting Texans’ right to freedom of expression. I look forward to working with Senator Hughes to sign this bill into law and protect free speech in Texas,” said the governor.
Both Abbott and Hughes have likened social media platforms to a modern “public square,” different from other private businesses.
But opponents of the legislation contend that it is precisely because social media platforms are private businesses that Hughes’ legislation is doomed to failure in the courts.
Steve DelBianco, the president and CEO of tech lobbying firm NetChoice, appeared at the hearing on Monday to testify against the legislation.
NetChoice members include a wide range of big-name tech companies, such as Facebook, Google, Twitter, and TikTok.
DelBianco disputed the “town square” argument and contended that tech companies’ greater defense against increased regulatory checks on censorship was not with Section 230, but with the First Amendment.
He pointed to a recent Ninth Circuit Court of Appeals ruling in a lawsuit from the conservative non-profit media organization Prager University against YouTube, which concluded that “despite YouTube’s ubiquity and its role as a public facing platform, it remains a private forum, not a public forum subject to judicial scrutiny under the First Amendment.”
“[W]hile almost all speech is protected from governmental censorship, private digital spaces that host public speech present a novel challenge,” said Hughes in the bill’s analysis. “Although these sites are privately owned, the nearly universal adoption of a few sites has created a need for protection from speech selection by social media companies.”
In addition to Hughes, the bill has seven other joint authors: Sens. Paul Bettencourt (R-Houston), Donna Campbell (R-New Braunfels), Lois Kolkhorst (R-Brenham), Jane Nelson (R-Flower Mound), Charles Perry (R-Lubbock), Charles Schwertner (R-Georgetown), and Drew Springer (R-Muenster).
A companion bill has not yet been filed in the Texas House of Representatives.