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Senate State Affairs met on July 12 to consider SB 5 (Hughes) and SB 24 (Kolkhorst) both relating to social media censorship.

 

This report is intended to give you an overview and highlight of the discussions on the various topics taken up. It is not a verbatim transcript of the discussions but is based upon what was audible or understandable to the observer and the desire to get details out as quickly as possible with few errors or omissions.

 

SB 5 (Hughes) (CS) Relating to complaint procedures and disclosure requirements for, and to the censorship of users’ expressions by, social media platforms

  • Hughes – In 2017, a justice discussed social media as the modern public square
  • A small handful of sites drive the national narrative; does not just effect conservatives
  • Platform must disclose what content they allow and must have an easily navigable contested system
  • Biggest social media sites are acting as common carriers of public speech; as such, cannot deny service
  • Bill draws a distinction between censoring content and censoring viewpoint
  • Allows those who have been censored to get back online; site must not censor based on viewpoint, if occurs user/the attorney general can bring suit
  • Applies to sites with 65 million users and above
  • Federal law protects social media sites from
  • Enforces prohibition of viewpoint based censorship; court can bring suit and hold sites in contempt if user is re-given access
  • CS is similar to the filed bill, bill is almost identical to SB 12 from the 87th
  • Adds to the legislative findings that social media sites are common carriers
  • Changes applicability to sites with 50 million domestic active users
  • Users cannot waive protections under this bill; cannot be used in contracts
  • Expands severability clause
  • Florida bill is not dead; this bill is not concerned with the Florida opinion
  • Campbell – Those who cannot file themselves, will have the AG file? What would compel the AG?
    • Bill requires social media sites to pay for attorney’s fees if the individual wins
  • Campbell – AG has joined with other states to take on Google and others; does that interact with this bill?
    • Texas is in litigation with other states for an anti-trust suit with Google
  • Zaffirini – Differences between this and SB 12?
    • Are very similar, difference is number of users
    • SB 12 applies to sites with 100 million global users, this bill focuses on domestic users
  • Zaffirini – What companies apply then?
    • Main ones are Facebook, Twitter, and Google (YouTube)
  • Zaffirini – Are defining restrictions for businesses, is this anti this kind of business?
    • Companies are common carriers, is appropriate to require this of them\
  • Birdwell – With portion of the Florida law was enjoined? Is that part in this bill?
    • No, there is a witness (McCollough) will speak on this
    • Florida bill exempted Disney World, we do not include them

 

Invited Testimony

Joshua S. Treviño, Texas Public Policy Foundation – For

  • These carriers can stile opinions of the public and have exemptions from liability from the federal government
  • Citizens with unorthodox opinions are stifled and deplatformed
  • SB 5 compels social media forms to report on administration of their terms and to clearly post them
  • Holds them accountable to the Texas attorney general
  • Zaffirini – written testimony reads Texas should remove all tax breaks and subsidies of these businesses; why single out these companies?
    • Need to strike a balance between liberty against the need for a vibrant economy
  • Zaffirini – Removal of Section 230 would require federal, not state, action?
    • Correct
  • Hughes and Trevino discuss the potential harm if this is not done
  • Hughes – Is not just about bias, what about liming free speech?
    • VP Kamala Harris has talked about how this is a free speech issue
  • Lucio – Bill does not mention political/religious speech?
    • As long as there is a standard set by the site, hope that is met
    • Hughes – Bill speaks to viewpoint discrimination; covers both of those
    • Hughes – Have decades of jurisprudence on first amendment and free speech
  • Birdwell – Being reinstated after being deplatformed is difficult; what is the mechanism to get a response from the media site before going to court?
    • Remedy is in state oversight and grounds for litigation
    • In some cases there is not accountability for the companies to disclose why they deplatformed an individual
    • Bill enforces transparency and requires them to have their own complaint process

 

Public Testimony

Steve DelBianco, NetChoice – Against

  • Testified SB 12 was a bad move for conservatives and
  • SB 5 will be similar enjoined like in Florida
  • Notes Trump filed suit saying it is states responsibility and to say Section 230 is unlawful
  • Should see Florida’s go through the process and Trump’s
  • Zaffirini – If this were to go through, could social
    • The first amendment allows for all of those; suits could already be taken up
  • Zaffirini – Is there a way to make this bill more agreeable?
    • SB 5 has every ten of the fatal flaws of Florida’s ruling
    • You cannot tell anyone what kind of speech they can carry
  • Zaffirini – Anything you did not get to in your testimony?
    • Social media platforms are not common carriers
    • Florida federal judge said social media is somewhere between a newspaper and a common carrier like a telephone company
    • Will be discussed at the 11th circuit through Florida and Trump’s suit
  • Zaffirini – In your written testimony you said this bill would prevent anti-Semitic or pornographic content from being censored?
    • Correct, those are under protection from the first amendment
    • Social media platforms who have said they will not moderate, have struggled to get ads on their site
  • Zaffirini – What about blocking of spam?
    • Companies continue to block commercial spam, these companies under the bill could sue
  • Zaffirini – You said SB 5 goes against conservative values?
    • Government cannot force provide TV stations, social media from having the content they want to have

 

Scott McCollough, Giganews Inc and Golden Frog – For

  • What bill the previous witness was talking about must not have been this one
  • Does not prohibit any platform from taking a position on anything
  • They can still flag information wrong or inappropriate
  • Cannot sensor viewpoint based speech; important distinguishment from the Florida bill
  • Florida opinion, court was more concerned about things that were not in this bill
  • Hughes – What was in the Florida bill that was different?
    • Do not exempt amusement parks
    • Court was concerned about special treatment of political speech and journalistic enterprises
    • Florida bill required platforms engage in certain types of speech themselves when dealing with a complaint
    • Social media sites meet criteria for common carriers under the law
  • Hughes – Florida bill said if you censored a politician the penalty would be greater?
    • Correct
  • Hughes – Do you read anything in SB 5 that would do that?
    • No
  • Hughes – These social media companies transport communication, so they are common carriers?
    • Yes, and provide special processing services via telecommunication
    • They also store information
  • Hughes – Justice Thomas’ concurring opinion is that you cannot just go somewhere else; alternatives are not comparable
    • They do have significant market power, whether they are monopolies is another question
    • These companies have a competitive advantage
    • Florida court had a problem with the $100 million threshold, but this bill gets to those who are at the center of the problem
  • Hughes – Concerns about violent/hateful content being removed? Bill does not prohibit to censor what is unlawful by federal law
    • Correct
  • Hughes – How would Section 230 effect SB 5?
    • Is not a complete immunity statute
    • Media sites’ actions need to be taken in “good faith” and “voluntary”
    • Could make a case that taking down actions are not in good faith and are not voluntary
  • Hughes – Anything else to say about the Florida ruling
    • This bill protects others’ speech and will be given intermediate scrutiny; will likely go to 5th circuit, not to the 11th like Florida
  • Birdwell – Were the tenants of the Florida case that had an injunction against them in SB 5?
    • Some provisions that were enjoined are similar in SB 5:
    • Like the censorship section
    • The total injunction is not against any section in SB 5
  • Campbell – Asks about how this bill applies to common carriers
    • Texas has long recognized common-law common carriers
    • Bill does not deem platforms as common carriers, recognizes they already are
    • Bill specifies the types of discrimination that cannot take place

 

Tom Glass, Self – For

  • Speech has been suppressed by Facebook
  • They denied due process and did not list a reason for punishment
  • Their reason for suppressing speech is they are a global company
  • Trump says they are a state actors, but they are an actor for the communist Chinese government
  • Facebook is not the official fact finder

 

Kathy Turner, Self – For

  • Provides an anecdote how their speech was suppressed on Facebook when they were talking about HB 783 from the 87th session

 

Servando Esparza, TechNet – Against

  • Creates an incentive for companies to remove harmful content in order for the companies to avoid being sued
  • With the Florida bill, judge took issue they were singling out large social media providers
  • From the Florida decision: reigning in the ideology is the state action that is unconstitutional in this, and other cases as well
  • Lucio – Are protecting viewpoint speech, does that include protecting hate speech?
    • Yes, includes racist content; allows individuals to sue if that content was removed
  • Lucio – Is federal law enough to protect against hate speech? States can build off these laws?
    • Section 230 is specific on what the state can do, are limitations there

 

Don Verner, Texas Faith and Freedom Coalition – For

  • Gravely concerned about freedom of speech in the past recent months
  • Agree these companies are common carriers
  • Support there should be no censorship based upon viewpoint
  • Hughes – Is your group limited to one religion?
    • No, a broad number of political beliefs too
  • Lucio – Should we craft legislation to ensure we uphold free speech and ensure we do not protect hate speech?
    • Cannot give a blanket agreement to that
    • Culture seems to define hate speech that would include themes preached by our religion
  • Lucio – You would not support any bill that would protect hate speech?
    • No

 

James Hines, Internet Association – Against

  • Represents 41 leading internet companies
  • Just because social media sites are popular does not mean constitution
  • Three fatal flaws with the bill
  • Tries to balance interests between liberal and conservative viewpoints; is not a compelling state interest in balancing those
  • Arbitrary element of 50 million discriminates those with 49 million or less; will raise an equal protection analysis
  • Have AT&T, Version, Comcast exemptions in the bill; strict scrutiny will apply
  • No caps on monetary damages will cause hundreds of thousands of lawsuits in the courts
  • Zaffirini – CS says can bring action that occurred before the effective date of this act; what effect will that have?
    • Have 12 million social media users in Texas; have the potential for hundreds of thousands of lawsuits in our court system
  • Zaffirini – Would authorize retroactive lawsuits?
    • Yes, is my interpretation

 

Alex Mead, Self – Against

  • Listened to Turner’s testimony; there may be an algorithmic explanation to that
  • Do not see politically motivated censorship on social media
  • Seen misinformation that fueled the January 6 attack removed and hate speech
  • Concerned this would not allow social media from fostering a safe community

 

Samantha Fillmore, Hartland Institute – On

  • Have had 70 bills nationally to prevent social media from censoring users
  • Censorship is a product of a corrupt law, Section 230
    • Bill addresses this through a state-based exemption to Section 230
  • Private corporations and social media should both not be able to censor free speech
  • Hughes – Section 230 essentially says states should create their own laws?
    • Essentially begs states to create legislation such as this without fully repealing Section 230
  • Lucio – Interested in a specific testimony, what did they register as?
    • Registered for the bill
  • Lucio – Have an amendment for the bill, will bring that up when they come to the floor

CS SB 5 passed out of committee (6-2)

SB 24 (Kolkhorst) CS Relating to state investments in social media companies that censor political speech

  • Kolkhorst – Have a CS legislative draft changes Chapter 809 to Chapter 809(a)
  • Is the same as a bill from the 87th
  • List maintained by the AG, are given a timeline to cease censoring speech, and then state investments are withdrawn
  • Similar to how the state punishes companies against Israel
  • AG will prepare and maintain a list of companies who censor/demonetized a user’s free speech
  • Listed companies need to be informed they are listed and provided a warning the state will divest if censorship continues
  • If continued, investments will be divested; provisions include investments may not be sold at a loss
  • Other protection mechanisms for state funds are included in the bill
  • Birdwell – Bill says AG may bring any enforcement to enforce this chapter; do we need to clarify “any lawful action necessary”
    • Believe we already have that language
  • Birdwell – Are executive actions that are authorized, but using “any action necessary” makes me concerned; seems overly broad
    • Similar language to SB 13, but not the same language
    • In my mind, it is a civil remedy; agree there needs to be narrowing language
    • Birdwell – Adding “lawful” would be helpful
  • Hughes – Includes censorship of “political speech,” does not limit to one particular side
    • Facebook changed its algorithm to censor left-leaning speech; is an issue across the political spectrum
  • Kolkhorst discusses the importance of political free speech

 

Invited Testimony

Samantha Fillmore, Hartland Institute – On

  • Anticipated that social media usership will be 4.6 billion in 2025
  • Big tech has the power to influence corporate and free speech successes/failures
  • They have gained power due to a corrupt intervention by the federal government
  • If they wanted to have free market power, then they should reject these protections
  • Government should not be picking winners and losers with liabilities as it does with Section 230
  • Should use state investments to prevent this from happening
  • Hughes – Have other states taken this approach?
    • Alabama has, but does not necessarily have the same state investment power as Texas
    • Other states create a private cause of action
    • Worked on the Florida bill
  • Hughes – Have you seen states get ideas from other states?
    • Yes; is daunting for states to go toe-to-toe especially in litigation
    • Would be Texas or Florida who will be brave enough to follow through
    • State action is constitutional under Section 230

 

Servando Esparza, TechNet – Against

  • Could remove state investment for censoring rightly objectionable content
  • Hundreds of millions of posts a day; there are errors that occur
  • Similar legislative effort filed in Florida was not followed through because it had a fiscal note of $3.1 billion
  • Fiscal note in this bill notes it could limit ERS potential
  • Hall – If the companies would stop doing what they are doing, you would not have those concerns?
    • Concerns that some of the content that is removed

 

Kathy Turner, Self – Against

  • Against any censorship by social media companies, but need to stay at the table
  • Birdwell – Registered for or against this bill? Registered against
    • Cannot decide; do not if this is something that we should spend our time on this
  • Hughes – Is similar to state divestment to those who boycott Israel or certain energy companies
    • When we do this, is this just political grandstanding
    • Asks them to consider that

 

Alex Mead, Self – Against

  • Do not see the political discrimination happening except for egregious cases
  • The social media companies are not doing the bidding of China; these websites are banned in China
  • Zaffrini – Who do you represent?
    • I am for myself
  • Zaffirini – Are you a member of a group against the bill?
    • A part of a political group, have not taken a stance against the bill
  • Hughes – Political speech has been taken down; are changes we need to look at
    • Worried even if that is happening, the broad action being contemplated here could put barriers on a platform to ensure they are fostering a community
  • Hughes – When the bill gets to the floor, will have those similar examples
  • Hall – Companies have decided to be the political monitor; provides anecdote of their content getting flagged
  • Hall – They should revert back to providing the service, not being the moderator

 

Tom Glass, Self – For

  • Would like to add an amendment; state or subdivisions cannot subsidize bringing any of these offices to Texas
  • Suppression is real, a liberal saying they have not seen discrimination is like a white person saying they have not seen racism against a person of color

 

Closing

  • Lucio – Did not vote for this bill the first time, but will if my amendment is considered on the floor; concerned about hate speech

SB 24 left pending