The Texas Senate has voted to pass Sen. Bryan Hughes’ (R- District 1) Senate Bill 5, which stipulates complaint procedures and disclosure requirements related to social media censorship. This legislation would effectively classify social media platforms as common carriers, contending that these platforms are public forums for open debate. SB 5 would prohibit censorship of individual users, while also providing said users a mechanism to notify Texas’s Attorney General of any legal violation of their rights.
Upon inception, social media was promoted as a new medium by which its users could freely communicate and exercise their rights to free speech via public discourse.
However, this mass communication network is managed by a handful of powerful tech titans, who are protected from liability and operate as monopolies. This hierarchal structure has resulted in a flawed system that gives users newfound voices to express themselves on one hand, but empowers those who seek to divide, misinform, and manipulate the public on the other.
According to Statista, the number of social network users worldwide reached 3.6 billion in 2020 and is projected to increase to 4.4 billion by 2025. According to Datareportal, the average time a person spends on social media per day is two hours and 24 minutes. To illustrate the degree to which social media has embedded itself in the average user’s life, a new 16-year-old user would spend 5.7 years on social media by the time of their 70th birthday.
Further, 70 percent of the U.S. population is active on social media, which translates to nearly 232 million Americans who now use platforms such as Facebook and Twitter as their primary mediums of communication. Just as television replaced radio, social media has replaced television.
This phenomenon has been recently exacerbated by the coronavirus pandemic. A Harris Poll conducted in early 2020 found 46 to 51 percent of U.S. adults were using social media at higher rates than they were pre-pandemic. What’s more, 2021 will see a projected 21 percent rise of social media advertisement spending from $40 billion to $49 billion, according to eMarketer.
All of these data points provide ample evidence that social networks have become much more than hosts for expression, memes, and life updates among friends and family. The aforementioned statistics effectively show that social media has become a major sector of the U.S. economy, with tremendous influence on corporate success or failure.
Additionally, these platforms have shown themselves to be powerful tools for guiding social discourse, which has become problematic in recent years due to aggressive censorship.
According to the Pew Research Center, roughly three-quarters of U.S. adults believe it is likely social media sites intentionally censor opinions and viewpoints that do not fall in line with Big Tech’s preferred ideology and political positions.
Following the unparalleled censorship of the former president of the United States (and others) in January by Facebook and Twitter, many Americans worry they could be next. Big Tech’s arbitrary clampdown on those they unilaterally deem guilty of spreading “misinformation” or “disinformation” has also Inspired many federal and state lawmakers to act.
The policy solution in Texas Senate Bill 5 takes similar form to proposed legislation in other states, overall protecting constituents who feel they have been de-platformed without due process. Up to 30 states have proposed such legislation, including Florida’s Senate bill 7072, which has gained national attention.
SB 5 is just one example of many pieces of legislation, including another Hughes-sponsored bill, which have worked their way through the Texas Legislature this year, during the regular legislative session. However, this progress was halted by the mass exodus of Texas Democrats from the House floor, depriving the chamber of a quorum on May 30, the last day of the regular session.
This provoked Texas Gov. Greg Abbott to convene a rare special legislative session, which included social media censorship as one of his 11 special session agenda items. Senate Bill 5 successfully moved through the Senate with Heartland state government relations manager Samantha Fillmore testifying on the bill in early July. Yet, on July 12, House Democrats once more broke quorum to fly to Washington, DC in protest of Abbott’s proclamation.
The saga has continued with Abbott calling a second special session, in which SB 5 will be on the docket.
Senate Bill 5 defines a social media platform as an internet website or application that is open to the public, allows a user to create an account, and enables users to communicate with other users for the primary purpose of posting information, comments, messages, or images. The bill specifies that this does not include internet service providers, or electronic mail services.
The bill also only applies to a social media platform that functionally has more than 50 million active users in the United States.
In addition, Senate Bill 5 requires a social media platform to publicly disclose accurate information regarding content management, data management, and business practices. This includes the manner in which the platform curates and targets content to users, places, promotes, and moderates content, and uses search, ranking, or other algorithms. The bill holds that these published disclosures must be easily accessible to the public.
The bill also states that a social media platform is required to provide a mechanism in which there is an easily accessible complaint system for users to submit a complaint if they have been censored. The platforms would also be required to create this mechanism in a way that permits users to track the progress of their appeal as it moves through the proper channels.
Finally, under this bill, the Texas Attorney General could bring an action against a social media platform should they be in violation of Senate Bill 5, and could recover the cost of bringing the action if an injunction is granted.
For too long, these entities have been insulated from liability because they claim to be mere platforms, with no editorial component. However, these platforms clearly do operate in an editorial capacity. SB 5 would rightfully challenge their liability shield, granted under Section 230 of the 1996 Communications Decency Act, on behalf of all Texans.
Section 230, specifically section (e), subsection (3), allows state legislatures to enforce respective state laws so long as they are consistent with Section 230. Opponents of this legislation claim that state-based legislation is unconstitutional, which is simply counterfactual. State-based exemptions exist for legislation such as SB 5. This legislation outright states on the first page of the bill that, “This act is intended to comply with the state law exemption under 47 U.S.C. § 230 (e) (3).”
Senate Bill 5 should also spur an overarching debate on the role of Big Tech in our civic discourse. Recategorizing these platforms as common carriers in Texas is perhaps the tool policymakers need to give Texans the message that robust public debate is sacrosanct and any action or failure to act to maintain a robust debate will be met with hard questions, and if necessary, legal repercussions.
As this bill heads to the Texas House of Representatives, legislators should consider solutions that would protect all Americans from undue censorship by a cabal of Big Tech ideologues who wield near-total power over the dissemination of information in today’s social media-dominated environment. More speech, not less speech, is always better in a free society.
