Houston-based attorney Joseph R. Larsen specializes in open government and press freedom issues and is among the critics of Texas’ so-called “censorship” law: a ban on the rights of social media networks like Twitter and Facebook to police users’ submissions. Texas authorities’ ability to enforce that new law was blocked by U.S. District Judge Robert Pitman in December, who decreed that “social media platforms have a First Amendment right to moderate content disseminated on their platforms.” But last week, the law was reinstated by the conservative U.S. Court of Appeals for the Fifth Circuit. The matter remains under review now by the Supreme Court.
The Texas Observer asked Larsen what could happen if the “censorship” law takes effect.
This interview has been edited for clarity and length.
Why would this law be bad for free speech?
There are a lot of reasons why it’s bad. The government can’t tell a private actor—an individual, or in this case a private company like Facebook or Twitter, what to say, what to include, or what to leave out. That’s editorial discretion. There’s also another federal law—the Communications Decency Act—that explicitly allows internet service providers, which Facebook and Twitter also are, to moderate their content. That’s why they call it the Communications Decency Act—so they don’t get indecent content.
The Texas act could possibly be called the communications indecency act.
If this law is enforced, could it impact other media companies’ publishing decisions? Should we be worried about press freedom?
I think so. Part of what is at issue is what constitutes the media. And social media—the word’s right in there: “MEDIA”. They tried to define it so as to exclude “other media” or “legacy media.” But definition-wise, there’s a lot of gray area as to whether the Texas Observer or the Houston Chronicle or The Huffington Post or any other site that aggregates information could constitute a social media platform. So I think it potentially begins to affect the media.
It’s also interesting to look at which social media platform is targeted here. It’s only social media with 50 million users or more—so it doesn’t reach conservative social media platforms like Parler.
And the fact that they feel like they can do this—who’s next? It’s a threat to free press throughout the United States.
How much does this Texas law have to do with Twitter’s ban on former President Donald Trump?
It’s a big part of it. It has a lot to do with Twitter banning President Trump and Trump’s lies.
But that’s hardly the only thing. Yes, Trump’s been banned, but so have Roger Stone and Steve Bannon … the list goes on and on and there are content-related reasons. Facebook and Twitter don’t like some of the falsified theories about the presidential election and about COVID-19, which are socially irresponsible. It’s a backlash against perceived liberal bias on Twitter and Facebook against conservatives. But words like “conservative” don’t really work for me. I’m a conservative, but some of this is so outlandish.
All these social media platforms have terms of service you have to abide by. If they are so concerned, Texas could start its own platform and run it however they want. What they can’t do is tell a social media platform what they want to carry and what they want to exclude. That’s a fundamental violation of the First Amendment.
What happens if the Texas law is enforced?
Let’s just agree it’s going to be nightmarish—there are all kinds of things they’d have to set up to allow complaints and to allow people to sue. It would be an absolutely enormous burden. There are so many unanswered questions about how this law would work. The user would have a right to sue and the attorney general has the right to sue Twitter if he doesn’t think they’re complying with this law. When you’re afraid of being sued by an attorney general or by any user, that’s chilling speech.
Should we be worried about more people using Facebook or Twitter to push propaganda, improperly influence elections or recruit for terrorism if this law goes into effect?
There’s a lot of history here with social media platforms previously being accused of being too wide open. Facebook was accused of passing along Russian propaganda. We just had this horrific terrorist activity in Buffalo—the suspect put out his manifesto and he took a video of this terrible deed that he did. The video wound up on the web in real time. It keeps popping up.
But his video goes to the heart of this argument about social media being allowed to regulate users.
Under the Texas law, at least arguably, this guy could sue if they declined to post his video.
What about the argument that gigantic social media companies like Facebook, Twitter, and others are acting as censors and abusing their power by banning users for spouting off or getting angry or by using a word targeted through a computer algorithm?
I can understand why some people legitimately feel that way. There are problems with Facebook and with Twitter—there was an earlier law that came out of Florida and it was struck down as unconstitutional. In that case, the judge said that what you’re basically doing here is burning down a house to roast a pig. And okay, there is a pig to be roasted—but the way to do that is not to burn down a house.
What we’re doing there is actually tying the hands of private actors to freely express themselves in some pursuit of a neutral viewpoint. There are other avenues to approach these problems, but they have to be constitutional—and in alignment with our American values.
What do you expect Associate Justice Samuel Alito and the rest of the Supreme Court to do?
My bet is it won’t be long before Alito stays the 5th Circuit’s decision. This is not going to pass muster with the Supreme Court. This is a very pro-First Amendment court. For example, they’re consistently chipping away at campaign finance regulation in the name of free speech. They’re pro-First Amendment conservative.
But this is just a decision on whether to uphold the injunction issued by Judge Pitman. The underlying lawsuit is ongoing, so this isn’t the final decision on the merits, this is whether the law will be allowed to be enforced while it works its way through the appeal process.
