Posted on 09/29/2021 5:33:28 AM PDT by Kaslin
Texas Gov. Greg Abbott, who this month signed a bill that aims to restrict the editorial discretion of social media platforms, says the new law "protects Texans from wrongful censorship" and thereby upholds their First Amendment rights. The law, H.B. 20, is scheduled to take effect on Dec. 2, but that probably will not happen because it is blatantly unconstitutional and inconsistent with federal law.
Abbott, a former Texas Supreme Court justice who served as his state's attorney general from 2002 to 2015, presumably knows that. But whether he is sincerely mistaken or cynically catering to his party's base, H.B. 20 reflects widespread confusion among conservatives about what the First Amendment requires and allows.
"Too many social media sites silence conservative speech and ideas and trample free speech," Abbott complained in March. A like-minded state senator declared that "Texans must be able to speak without being censored by West Coast oligarchs."
Although the evidence supporting such complaints is disputed, let's assume they are justified. Or let's imagine a social media platform that explicitly caters to the left and bans dissenting posts.
Would that constitute a violation of conservatives' First Amendment rights, as Abbott claims? No, since the First Amendment applies to the government and imposes no constraints on private parties.
To the contrary, the First Amendment guarantees a private publisher's right to exercise editorial discretion. The Supreme Court emphasized that point in a 1974 case involving a political candidate's demand that the Miami Herald publish his responses to editorials that criticized him.
The constitutional protection against compelled publication does not disappear when we move from print to the internet, or from a news outlet to a website that invites users to post their own opinions. As Justice Brett Kavanaugh noted when he was a judge on the U.S. Court of Appeals for the D.C. Circuit, "the Government may not... tell Twitter or YouTube what videos to post" or "tell Facebook or Google what content to favor."
Yet that is what H.B. 20 purports to do. The law says "social media platforms" with more than 50 million active monthly users in the U.S. may not "censor" content based on the "viewpoint" it expresses. That edict covers any effort to "block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression."
H.B. 20 makes a few exceptions, including "expression that directly incites criminal activity" and "specific threats of violence" that target people based on their membership in certain protected categories. But otherwise, the rule's reach is vast: As two trade organizations note in a federal lawsuit they filed last week, H.B. 20 "would unconstitutionally require platforms like YouTube and Facebook to disseminate, for example, pro-Nazi speech, terrorist propaganda, foreign government disinformation, and medical misinformation."
Every social media service -- including alternative platforms such as Parler and Rumble, which are not covered by the law because they fall below its user threshold -- moderates content to some extent. And while there will always be disagreement about the formulation and enforcement of those rules, H.B. 20 replaces private discretion with government dictates.
n addition to the First Amendment, H.B. 20 flouts 47 U.S. Code 230, which bars states from imposing civil liability on a website for "any action voluntarily taken in good faith to restrict access to or availability of material" it deems "objectionable, whether or not such material is constitutionally protected." H.B. 20 implicitly acknowledges that barrier, saying it does not authorize "damages or other legal remedies to the extent the social media platform is protected from those remedies under federal law" -- a proviso that effectively nullifies its ban on "censorship."
In June, a federal judge issued a preliminary injunction against a similar Florida law after concluding that it probably violated the First Amendment and Section 230. The fact that supporters of H.B. 20 were unfazed by that ruling shows how readily Republicans sacrifice constitutional principles in their culture war against "West Coast oligarchs."
The do not care about constitutional rights, what’s in the infrastructure bill is the ground work for eliminating the constitution
Social Media sites are not subject to the same libel/slander laws as Journalists. Their argument is they are just a posting website therefor do not edit for content. Now that they do edit for content those attempts to dodge legal culpability need to be closed.
To argue that they are immunize from being legally culpable at the same time they are supposedly protected by the 1st Amendment is ridiculous. They cannot have it both ways.
This statement needs unpacking.
The First Amendment provides several rights, one being the right of the people to a free press.
This means that we are all "private publishers," as everyone has the right to publish. A "free press" does not mean journalists or reporters, it literally meant the printing press -- that is, the right of the people to publish their thoughts and ideas, including (but not limited to) journalists and reporters.
The First Amendment right to peaceably assemble is the right of association. In that sense, a "private publisher" as the author phrased it, meaning for-profit publishing houses, can choose what to publish and reject via the right of free association (or right to peaceably assemble).
The problem that conservatives are raising is what to do when ALL publishing houses band together to deny a defined group of people access to their platforms? This moves the issue from a private business not being forced to bake a cake publish a book or essay, to an entire segment of commerce being denied to a minority population of the country.
The usual response is to form one's own publishing house that caters to like-minded authors. This brings up the issue of long-standing long-built businesses that got to where they are through decades or centuries of providing a service, to now using that legacy as a weapon against its former customers who got them to where they are today.
Facebook and Twitter and YouTube and the like didn't mind the conservatives on their sites when they were first forming, but now that they dominate the public square and don't need them anymore, they are no longer dancing with those who brung them.
-PJ
When private companies collude with governments to censor private individuals, they are no longer acting as private parties.
It is much better to be direct, that unless they stop with the political censorship, they cannot operate in that state.
fortunately Democrats never pass legislation that is blatantly unconstitutional {sarc}
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