The Washington PostDemocracy Dies in Darkness

Opinion A new Texas law fights Big Tech censorship. Last week showed why we need it.

(Washington Post illustration; iStock images)
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Greg Abbott, a Republican, is the governor of Texas.

Big Tech has a big problem when it comes to censorship and double standards. Now, Texas is fighting back.

This month, I signed a law that prohibits large social media companies with more than 50 million active users in the United States from banning or censoring a Texan, or the content he or she shares or receives, based on that person’s political or religious viewpoints. The need for this law has been apparent for years, as our country’s public square has become increasingly controlled by a few powerful companies that have proved to be flawed arbiters of constructive dialogue. But two events reported last week revealed why the law is urgently needed now — and why state governments such as ours have no choice but to act.

The first was the Federal Election Commission’s ruling that Twitter did not violate campaign finance laws when it erroneously restricted the New York Post’s reporting on Hunter Biden’s laptop ahead of the 2020 election. This essentially gives social media giants the green light to tilt public debate away from political opinions they disagree with.

The second was the Wall Street Journal’s bombshell report about Facebook. The social media platform, it turns out, has set an alarming double standard — exempting “whitelisted” users who are influential or famous from the company’s rules of conduct, allowing them to publish content that the average user cannot.

Both stories show how Big Tech companies can unilaterally decide which information enters the public discourse. They also show how a handful of individuals, operating without transparency or public accountability, can sway sentiment based on their preferred viewpoints. This should terrify anyone who values free speech in the United States.

If a social media company can apply double standards based on someone’s position of power or influence, as in the case of Facebook, what is to stop it from censoring a mother from Beaumont for sharing her religious beliefs or a rancher from Amarillo supporting the Second Amendment? The answer is nothing — unless we fight back against Big Tech censorship and hold these companies accountable.

That is exactly what Texas has achieved with this new law.

Under the law, Texans who are wrongfully de-platformed or censored can file a lawsuit against the social media site to get back online and make the site pay their legal fees. The Texas attorney general can likewise file a lawsuit on behalf of any Texan who is wrongfully de-platformed.

The law also requires social media companies to share their policies for content management and moderation and to implement an appeals process for content they remove. The Texas attorney general can enforce these requirements through a civil action to enjoin a violation.

Opponents of the law argue that, because these platforms are private companies, any government action forcing them to convey messaging against their will is compelled speech, and thus a violation of the First Amendment. Moreover, opponents add, these social media platforms should be able to discriminate in which customers they allow onto their platforms, as any private firm has the right to do.

But Twitter, Facebook and other massive platforms aren’t just any private companies. They are our modern-day public square, and effectively control the channels we use for discourse. As the Texas law stipulates, they function as common carriers — which means they can’t restrict access to users based on political or religious viewpoints, or other arbitrary standards.

Nor should these platforms enjoy the First Amendment protections that newspapers and other news outlets enjoy — because they don’t shoulder the accompanying responsibilities. Newspapers cannot be censored, but they can be sued for libel. The social media platforms, by contrast, have received special legal status from the federal government in Section 230 of the Communications Decency Act, which protects them from liability for the content they publish by declaring that they are not publishers or speakers. Having won market dominance thanks to Section 230’s immunity handout, these social media giants cannot claim to be speakers again now that it’s convenient.

Because the federal government has thus far shown itself unwilling to protect citizens’ rights on these platforms, states have an obligation to act. And in Texas, we’re showing how states can safeguard free-speech rights while still prioritizing the safety of social media users. Our law does not prevent platforms from moderating content altogether. It doesn’t interfere with their ability to block criminal activity on their sites, or to remove content that incites violence or is illegal or obscene.

And while many are concerned about the spread of misinformation, this law is the best solution to it. A robust marketplace of ideas ensures that truth rises to the top, and misinformation falls to the wayside, far better than censorship ever can.

Our country was built on strong public discourse, which has helped make the United States the greatest nation in the history of the world. When large social media companies are allowed to silence viewpoints they simply don’t agree with, they put that foundation at risk. This is why protecting everyone against censorship — whether they are staunchly conservative or far-left socialist — is essential. And it is why Texas has made it illegal for Big Tech companies to infringe on citizens’ fundamental right to free speech.