March 21, Jared Schroeder, associate professor of Journalism specializing in Free Press/Free Speech at SMU Dallas, for a piece critical of the proposed Texas Senate Bill 12, an effort he argues is unconstitutional and a lawsuit lighting rod. Published in the Dallas Morning News: http://bit.ly/3saL0Bt
Texas lawmakers’ plan for stopping social media firms from blocking or banning certain ideas or speakers has just one itty, bitty problem — it’s flagrantly unconstitutional.
Senate Bill 12, which Sen. Bryan Hughes, R-Mineola, filed earlier this month, would empower the state to legally compel social media firms to leave up, or republish, content they would take down — and reinstate speakers they would remove from their spaces.
Gov. Greg Abbott threw his support behind the bill earlier this month. He described social media spaces as “modern-day public squares” and congratulated Hughes for “taking a stand against Big Tech’s political censorship and protecting Texans’ right to freedom of expression.”
By Jared Schroeder
Texas lawmakers’ plan for stopping social media firms from blocking or banning certain ideas or speakers has just one itty, bitty problem — it’s flagrantly unconstitutional.
Senate Bill 12, which Sen. Bryan Hughes, R-Mineola, filed earlier this month, would empower the state to legally compel social media firms to leave up, or republish, content they would take down — and reinstate speakers they would remove from their spaces.
Gov. Greg Abbott threw his support behind the bill earlier this month. He described social media spaces as “modern-day public squares” and congratulated Hughes for “taking a stand against Big Tech’s political censorship and protecting Texans’ right to freedom of expression.”
The problem is, social media sites are not public spaces. They are private. When these firms remove content or speakers, they are not violating the First Amendment. They are managing their property. Texans know all about property rights. Can you imagine a law that forced someone who plants a yard sign supporting a Republican candidate to also place one for the Democratic opponent beside it? That’s what we’re talking about. The law would force a private entity to share ideas that go against its beliefs.
I get it. It’s concerning that social media firms have so much control over our expression. These platforms wield increasing power regarding who can and cannot use their spaces and whose messages are most prominent.
We can work toward solutions, but the First Amendment will not allow the proposal that Hughes and Abbott support to stand. The bill is a dog that won’t hunt. Perhaps more accurately, the only thing it’s going to find is lawyers and court dates.
The bill’s authors appear to anticipate court challenges. The language stipulates that if one section of the law is struck down, others will remain active until they are struck down. The bill, if made into law, might be more difficult to kill than a fire ant colony, but that doesn’t make it any less unconstitutional.
Why? The Supreme Court has made it clear in The New York Times vs. United States in 1971, also known as the Pentagon Papers case, that the First Amendment protects us from government censorship. The government also cannot halt expression simply because it’s offensive or disagreeable, which was established in Texas vs. Johnson in 1989, a case that has its roots in downtown Dallas.
We often forget the other side of the coin. The First Amendment also protects us from compelled speech. The government cannot make us speak or publish ideas. The government cannot force me to put a sign in my yard supporting a candidate I do not support.
You might say that social media firms aren’t people. True. The Supreme Court, however, extended most First Amendment protections to corporations in First National Bank vs. Bellotti in 1978. So, when Texas lawmakers want to force social media firms to publish against their better judgment or to allow unwanted speakers to continue to roost on their property, they violate the firms’ rights.
It might be tough to muster sympathy for Facebook and other social media giants. Their behavior demonstrates that they privilege profit over ensuring their products do not damage democracy. We should be thinking about ways to rescue democratic discourse from the ills these firms’ services cause, but the proposed law would only create new and bigger problems. A nuanced, surgical solution, rather than a sledgehammer, is needed.
Importantly, the First Amendment doesn’t care how we feel from one day or year to the next. It doesn’t care if those who benefit from it are good guys or bad guys. It provides barriers to keep our lawmakers from taking away our rights. In this case, the First Amendment ends up supporting companies that deserve some serious scrutiny from each of us. Sometimes the First Amendment supports the bad guys. What is important is that it endures.
Chief Justice John Roberts explained in McCullen vs. Coakley seven years ago that “mere convenience” is not reason enough to limit the First Amendment.
Perhaps there is no viable legislative tool for addressing the often-unpredictable decisions social media firms make regarding content and access to their spaces. The best solution might reside in the free market. If people do not like a service because it appears to be blocking ideas or people, they can leave.
While flawed in its own way, a free-market solution is preferable to undermining a foundational part of democracy. The best outcome is to scrap the bill. The worst outcome will be spending millions of dollars of Texas taxpayers’ money to fight for a flawed and unconstitutional law.
Jared Schroeder is an associate professor of journalism at Southern Methodist University, where he specializes in First Amendment law. He is the author of “The Press Clause and Digital Technology’s Fourth Wave.”