EFF to Federal Court: Block Unconstitutional Texas Social Media Law

Users are understandably frustrated and perplexed by many big tech companies’ content moderation practices. Facebook, Twitter, and other social media platforms make many questionable, confounding, and often downright incorrect decisions affecting speakers of all political stripes. 

A new Texas law, which Texas Governor Greg Abbott said would stop social media companies that “silence conservative viewpoints and ideas,” restricts large platforms from removing or moderating content based on the viewpoint of the user. The measure, HB 20, is unconstitutional and should not be enforced, we told a federal court in Texas in an amicus brief filed Oct. 15. 

In NetChoice v. Paxton, two technology trade associations sued Texas to prevent the law from going into effect. Our brief, siding with the plaintiffs, explains that the law forces popular online platforms to publish speech they don’t agree with or don’t want to share with their users. Its broad restrictions would destroy many online communities that rely on moderation and curation. Platforms and users may not want to see certain kinds of content and speech that is legal but still offensive or irrelevant to them. They have the right under the First Amendment to curate, edit, and block everything from harassment to opposing political viewpoints.

Contrary to HB 20’s focus, questionable content moderation decisions are in no way limited to conservative American speakers. In 2017, for example, Twitter disabled the verified account of Egyptian human rights activist Wael Abbas. That same year, users discovered that Twitter had marked tweets containing the word “queer” as offensive. Recent reporting has highlighted how Facebook failed to enforce its policies against hate speech and promotion of violence, or even publish those policies, in places like Ethiopia.

However, EFF’s brief explains that users also rely on the First Amendment to create communities online, whether they are niche or completely unmoderated. Undermining speech protections would ultimately hurt users by limiting their options online. 

HB 20 also requires large online platforms to follow transparency and complaint procedures, such as publishing an acceptable use policy and biannual statistics on content moderation. While EFF urges social media companies to be transparent with users about their moderation practices, when governments mandate transparency, they must accommodate constitutional and practical concerns. Voluntary measures such as implementing the Santa Clara Principles, guidelines for a human rights framework for content moderation, best serve a dynamic internet ecosystem.

HB 20’s requirements, however, are broad and discriminatory. Moreover, HB 20 would likely further entrench the market dominance of the very social media companies the law targets because compliance will require a significant amount of time and money.

EFF has filed several amicus briefs opposing government control over content moderation, including in a recent successful challenge to a similar Florida law. We urge the federal court in Texas to rule that HB 20 restricts and burdens speech in violation of the Constitution.