Texas’ social media law is ill-conceived


Texas recently joined the legislative fray against social media ‘censorship’, following similar but unfortunate initiatives such as a Florida law blocked by a judge and an eerily similar policy by Brazilian Jair Bolsonaro overturned by the Senate Brazilian.

Under Texas law, social media platforms cannot restrict or moderate content based on expressed political views, nor can they ban users for those same reasons. The law also requires companies to publish reports that disclose the number of complaints filed and how often they remove content.

The Texas law is primarily a response to allegations of corporate censorship, often defended by conservatives. But regardless of the factual support for these concerns, the claims are based on a mistaken understanding of censorship. Additionally, government interference in social media moderation will degrade the quality of social media services and set an awkward precedent for politicians who wish to impose their views (and those of their constituents) on private media companies.

Freedom of expression is not a right to be heard. Rather, it is an unrestricted right to express oneself on the part of the government. Likewise, editorial discretion is distinct from censorship; the former is a private choice made millions of times every day, while the latter is a government-imposed speech limit. Censorship is worrisome because governments can coerce individuals or organizations in ways that, say, Facebook cannot. Governments can and do arrest people for spreading certain ideas.

Recent debate has blurred this distinction. Texas Governor Greg Abbott argues that social media platforms should not benefit from First Amendment protections because these companies are common carriers, effectively controlling the channels of public discourse. Media is protected by the First Amendment, he says, but is different because they are responsible publishers for the content they broadcast, unlike online social media which is exempt from user content liability under the section 230 of the Federal Communications Decency Act. Thus, platforms should not be able to remove or restrict content if they want to keep their disclaimers; otherwise, they should be held responsible like any other publisher.

But this analogy is wrong. Newspapers are not responsible for the content they choose not to publish, as the governor wants us to believe. Additionally, while the law protects platforms from liability, it does not prevent users who post content from being held accountable. Finally, government intervention is no less harmful to enforce “neutrality”.

Neutrality regulations can degrade the user experience by reducing the ability of platforms to filter out offensive or uninteresting material. And some users may still object to the presence of certain content, even if they do not see it. More importantly, once such a policy exists, tighter regulation usually sets in. Germany’s hate speech law has largely failed to curb “toxic” content, even after an amendment to force social media platforms to report illegal content to authorities. And now there are more calls to close the “loopholes” for other online services and further strengthen the provisions.

Social media content policies, while imperfect, are controlled by the competition; government mandates are not. If consumers don’t like the guidelines for a given platform, they can opt out and migrate elsewhere. This is already the case for platforms that target disgruntled conservatives, like Gab, Parler and Gettr. Additionally, marketplaces allow for the coexistence of different content guidelines, so consumers can choose the platforms whose content policies work best for them. Rather, government rules do away with experimentation and competition.

The Conservatives could learn this the hard way. If Democrats start crafting bills to regulate hate speech or disinformation, it could initially put conservative-leaning social media platforms at risk. And it could generate bipartisan support to repeal the oft-criticized section 230, which shields social media companies from liability for user-generated content.

Repealing section 230 would then trigger a wave of lawsuits against platforms that host content deemed offensive or misleading, which could be used as a weapon against right-wing discourse. Politicians can also seize the end of liability protection to impose more direct responsibilities on social media companies, for example asking them to remove false or misleading content. In sum, Republican legislative efforts could backfire and hamper the emergence of conservative alternatives to social media platforms.

Lawmakers, in Texas or elsewhere, should also consider that the new policies and responsibilities add to the oversight and legal costs of operating social media services, discouraging new entrants and further empowering incumbents such as Facebook and Twitter.

Government interference in social media content policies has set awkward precedents for politicians who wish to impose their views – and those of their constituents – on private companies. This political interference is likely to worsen media service for users, reduce the quality of information and make social media less responsive to users. The way to preserve freedom of expression is to leave media companies free to define their own content policies.

Jeffrey Miron is Director of Economic Studies at the Cato Institute and Director of Undergraduate Studies in the Department of Economics at Harvard University. Pedro Braga Soares is a graduate student in economics at the Pontifical Catholic University in Rio de Janeiro, Brazil.


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