Texas bill would allow state to sue social media companies like Facebook and Twitter over free speech

^{*Editor's note: This story has been updated to include additional comments from Facebook and reflect that the Texas Senate approved the bill.}

A bill before the Texas Senate seeks to prevent social media platforms like Facebook and Twitter from censoring users based on their viewpoints. Supporters say it would protect the free exchange of ideas, but critics say the bill contradicts a federal law that allows social media platforms to regulate their own content.

The measure — Senate Bill 2373 by state Sen. Bryan Hughes, R-Mineola — would hold social media platforms accountable for restricting users’ speech based on personal opinions. Hughes said the bill applies to social media platforms that advertise themselves as unbiased but still censor users. The Senate State Affairs Committee unanimously approved the bill last week. (Update: The Texas Senate approved the bill on April 25 in an 18-12 vote. It now heads to the House.)

“Senate Bill 2373 tries to prevent those companies that control these new public spaces, this new public square, from picking winners and losers based on content,” Hughes said in the committee hearing. “Basically if the company represents, ‘We’re an open forum and we don’t discriminate based on content,’ then they shouldn’t be able to discriminate based on content.”

During the hearing, Hughes pointed to a recent ad on Facebook by the Texas Senate Republican Caucus in support of an anti-abortion bill that the platform flagged because it could be a “negative experience.” Facebook objected to the ad because it asked users to share it, Hughes said Facebook told him. However, the Republican Caucus posted an ad about the Senate’s property tax bill that also asked users to share, and it was promoted with no issue, Hughes said.

Facebook spokeswoman Monique Hall told The Texas Tribune that the platform is trying to reduce clickbait and that the company considers a post that asks users to like or share it if they agree with it as meeting its definition of that term.

"The first ad was not penalized because of the views it expresses but because we have increased our efforts to reduce language in ads asking people to 'share' or 'like if you agree,'" said Ana Martinez, a public policy manager for Facebook. "The ad was edited and was then able to run without issue. The second ad, however, should have also been flagged but enforcement is not always perfect. ”

Opponents to the bill raised concerns about the conflict with a federal law that protects social media platforms. In the federal law, social media platforms are protected under a “good Samaritan” policy that allows them to moderate content on the platform however they want, or on a subjective basis. Kendra Albert, a lecturer at Harvard Law School, said the federal law would likely preempt SB 2373 because the bill is more restrictive.

“The federal law contains what we would call a ‘subjective standard,’” said Albert, who specializes in technology law. “It's based on whether the provider thinks that this causes problems, whereas the Texas bill attempts to move it to an objective standard.”

Albert said it would be difficult to determine what is “objectively” offensive, which is why the federal law leaves it up to social media platforms and their users to determine what is offensive. Users can block what content they see on their own feed in addition to monitoring by the platforms. Sometimes there’s not a particular reason why content is removed; it’s flagged by an algorithm, Albert said.

States are allowed to create their own laws about social media platforms removing content if it fits within the federal law. Hughes, a lawyer, told The Texas Tribune that he and several other lawyers looked over the bill and agreed that the bill wouldn’t contradict the federal law.

The bill would apply the Texas Deceptive Trade Practices Consumer Protection Act, which protects consumers from bad or misleading actions in the trade industry. Users on social media platforms who feel like they are censored for their views would be able to file a consumer complaint with the Texas attorney general. The attorney general could then decide whether to bring a public case against the platform.

Some raised concerns that the bill’s language could leave room for private cases against social media companies under the state’s trade act. Hughes told The Tribune that he’s willing to amend the bill on the Senate floor to make sure it is “abundantly clear” that the bill will only allow lawsuits from the attorney general.

Another concern from opponents is that the measure could change how social media platforms determine harmful content. David Edmonson, Texas director for TechNet, a coalition of tech companies committed to inclusivity, said the bill could unintentionally lead to social media platforms removing content policies altogether, leaving them open to increased liability. TechNet's members include Facebook and Google, which owns the video-sharing platform YouTube. A spokeswoman for Twitter said the company had no comment on the bill.

Many social media platforms have their own guidelines for regulating content. Facebook released its community standards policy to the public in 2018, defining the platform’s voice as “embracing diverse views.” It also outlined the types of content Facebook doesn’t allow, such as posts that are considered to be bullying, harassment or hate speech.

CJ Grisham, the founder of Open Carry Texas, spoke at the hearing in support of the bill. He said Facebook has shut down 16 of the organization’s local groups and did not explain why. Grisham said the group is a conservative gun rights platform and is "routinely targeted" for pushing gun rights on Facebook.

U.S. Sen. Ted Cruz raised similar concerns about social media censorship at a Senate Judiciary committee hearing April 10. Cruz, a Republican, threatened federal regulation of social media sites in response to allegations that they censor conservative content and users. Representatives from both Facebook and Twitter testified at the hearing. Google was invited to testify, but Cruz rejected the company's witness.

Other states have also filled legislation seeking to curb social media censorship. Lawmakers in California filed a bill that would prohibit anyone who operates a social media site in the state from removing content from the site based on the political affiliation or viewpoint.

Disclosure: Facebook and Google have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.