BAD IDEA TEXAS VERSION
The Texas legislature, following Florida’s lead, enacted a bill that limits the ability of private social media providers to moderate, edit or remove third party content from their sites. Here is a rather scathing review courtesy of techdirt.com. And while I apologize to my readers for the sailor talk in the techdirt headline, I don’t apologize for the sentiment. The bill is a Texas sized mess. For starters, it’s typically unconstitutional to compel a private speaker to speak. The First Amendment free speech guarantee works both ways – the government can’t tell a citizen what it can’t say, but it also can’t tell a citizen what it must say. It’s also suspiciously selective about what platforms are subject to regulation. The threshold for the regulation is 50 million monthly average users. That number means that Facebook, Twitter, Instagram and YouTube are subject to the regulations. But sites that favor conservative viewpoints such as Truth Social, Parlor, Gettr, Gab and Rumble don’t meet the criteria. Interesting coincidence, huh?
The procedural posture of the case is also, uh, interesting. A federal District Court struck down the law based on its obvious defects in a 30 page opinion and preliminarily enjoined the Texas Attorney General from enforcing it. But last week, the Fifth Circuit Court of Appeals, in a one sentence order stayed the District Court order, meaning as of now, the Texas Attorney General can enforce this dumpster fire. I remember a time when conservatives opposed excessive governmental regulation.
Two industry groups whose members include some of the larger platforms have filed an emergency petition to vacate the Fifth Circuit Order. If that petition is granted, it will give the District Court a chance to consider all of the arguments – pro and con – before deciding whether the law violates the constitution. And if the Supreme Court reinstates the preliminary injunction, this dumb law won’t go into effect until the court issues a final ruling. Of course, if the final ruling goes the way it should, the law will never see the light of day. Which would be a very good thing.