Upholding Texas’ Social Media Law Will Make Users Worse Off

A federal appeals court ruled on May 11, 2022, that Texas can enforce its recently enacted social media law, which prohibits social media platforms with over 50 million monthly active users in the United States from “censoring” users.

The Texas law, H.B. 20, defines censorship as “to block, ban, remove, de-platform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression” and allows users to sue platforms for violations of the law. This law contradicts Section 230 of the Communications Decency Act, a federal law that states that online services cannot be held liable for removing or failing to remove third-party content and that explicitly preempts state and local laws that would impose liability on online services.

Section 230 has drawn criticism from both sides of the aisle in recent years. But Texas legislators designed H.B. 20 to respond to conservatives’ claims that large social media companies are biased against conservative opinions and unfairly censor and de-platform conservative users. Members of Congress have introduced similar legislation at the federal level, though Congress has not passed any of these bills.

Section 230’s primary benefit is that the law makes it possible to create and operate many innovative online services because the law insulates them from legal liability and costs associated with third-party content. Social media platforms’ content moderation decisions are already protected by the First Amendment. In a world without Section 230, if users sued social media companies for removing or failing to remove content, these companies would rely on the First Amendment to protect them and would likely still win most cases against them.

But this litigation process is expensive. Even companies that could afford these legal costs would have fewer resources to dedicate to innovation and user safety. Section 230 allows online services to dismiss cases against them and avoid the most expensive parts of the litigation process. An efficient legal process benefits consumers who use social media and other online services for entertainment, education, communication, and work, often at no cost to them. This also benefits the American economy.

H.B. 20 would significantly increase social media platforms’ legal costs by allowing users (or politically motivated groups acting on behalf of users) to sue over a variety of often difficult-to-prove violations and explicitly preventing platforms from citing a previous successful defense in subsequent court cases. To avoid some of these costs, platforms may significantly alter how they moderate content by removing less content. While some may see this as a desirable outcome, there is plenty of content that is objectionable but not illegal that social media platforms regularly remove and that many users would not want to see on their feeds, including spam, hoaxes, pornography, violence, and disinformation. Allowing more of this content would make most users’ experiences with social media worse, not better.

Platforms may also choose to stop using algorithms to sort and personalize content, which some would also view as a good thing. But many social media users benefit from algorithms that sort content according to their previous activity and what they are most likely to find entertaining, enjoyable, or useful.

Moreover, it is wrong for Texas legislators to unilaterally impose its standard for social media content moderation on the rest of the country. If Texas succeeds in stripping Section 230 protections from social media companies that take down content they believe should remain online, little would stop California or New York from passing a retaliatory law stripping Section 230 protections from social media companies that do not take down content they object to. The result would be a patchwork of contradictory laws that would make content moderation virtually impossible and make social media and its users the casualty of a partisan battle over free speech online.

The plaintiffs in the case against H.B. 20 will either ask for a Supreme Court appeal or a rehearing. In the meantime, social media platforms with over 50 million monthly users must adhere to H.B. 20 and will be vulnerable to lawsuits from disgruntled users that will drive up costs, take resources away from innovation, and potentially restructure the way major social media platforms operate, to the detriment of most users.