The proposal aims to protect users on social media platforms from censorship if a site advertises itself as impartial. Critics say the bill is too restrictive.
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.