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A Letter from Austin #11: Oppressed Conservatives of Texas Demand Right to Post Memes

The Texas Legislature’s Attempt to Tear Down All Standards of Decency Hits a Predictable Early Hurdle: A Federal Judge

Remember House Bill 20?

One of the worst pieces of legislation enacted by the Texas Leg this year is HB 20. It’s what I call the “Hurt Feelings Bill,” and it aims to keep big social media platforms like Facebook and Instagram from removing nasty, dishonest, or downright seditious content from their electronic platforms. Governor Abbott signed the bill into law on September 9th, with the statute scheduled to go into effect on December 2nd — yesterday, in other words.

The Governor and his GOP allies claim the bill is all about protecting Texans’ right to free speech. Facebook, they say, is censoring racists! It’s outrageous! It’s unconstitutional!

But let’s start with a basic proposition. A private company doesn’t violate your constitutional rights by telling you to watch your language when you’re using its website, or shopping in its store, or watching a movie on its IMAX screen. It’s the government that can’t prohibit you from expressing your opinions, regardless of how stupid they are. The First Amendment is about protection from the state, not protection from Mark Zuckerberg.

The Texas Republican Party loudly claims to be against government regulation and bureaucratic interference in business. It also claims to despise “frivolous lawsuits,” though Texas’s own Attorney General, Ken Paxton, is often the person who files them. How weird is it, then, that the GOP-dominated Texas Legislature has created a statute that forbids social media companies from de-platforming individuals who spout lies and nonsense — and creates a new cause of action specifically designed for aggrieved wackos to file lawsuits against the companies that have denied them the oxygen of attention? Under HB 20, aggrieved individuals are empowered to sue large social media companies for reinstatement if they feel like their claims and/or images, no matter how nasty, pornographic, or just plain offensive, have caused them to be unfairly removed from a site.

Well wait, you say. What’s good for the goose is good for the gander. Surely left-wingers are okay with the law, because they have a similar set of “protections” under HB 20. But consider this: the law only applies to “big” social media companies, which are widely considered to be liberal-leaning in their ownership, management, staffing, and policies. It specifically doesn’t apply to smaller social media companies like the right-leaning Parler and Gab. In other words, a conservative can sue Facebook for censorship, but a liberal can’t sue Parler for the same thing. And if you can’t figure out why that exception exists in a law passed in Texas in 2021, you haven’t been paying attention.

A truckload of new lawsuits isn’t the only plague HB 20 promises to unleash. Under the law, big social media companies like Facebook and Twitter, which employ lots of Texans, right here in Texas, would be required to: keep records of removed content; institute a complaint process for cranky malcontents; disclose their content regulation procedures; and create something called biannual “transparency reports” for our state’s bloated bureaucrats to pore over.

Furthermore, the Attorney General of Texas, the aforementioned Ken Paxton, currently under indictment, a lawyer whose taxpayer-funded Big Lie litigation was slapped down by the United States Supreme Court as a bad joke, and who claims Texas’s whistleblower lawsuit doesn’t apply to him because he’s an elected official — THAT Ken Paxton — is also authorized to sue the social media companies for being mean to QAnoners, Taliban enthusiasts, Nazis, etc.

Does this mean there would be lots of cumbersome and expensive regulation the big social media companies would have to deal with? Why yes, it does. Isn’t cumbersome regulation something our legislators say they oppose? Yep. Does this mean the courts will have to deal with unworkable definitions of what the state considers allowable or unallowable social media content? Of course. Is this the dumbest law to come out of Austin in the past 50 years? Probably not — but hey, it’s a contender.

There’s only one bright spot to be found in this story so far. As I said in my very first Letter from Austin:

There’s no way any federal judge worth his or her salt will let this ridiculously restrictive, wrongheaded law stand. The State of Florida tried a similar tactic and was slapped down by the first court that reviewed Tallahassee’s effort. I suspect Abbott and his cronies in the Legislature know their work won’t pass constitutional muster, and don’t particularly care. As with other legislation enacted this year, the point isn’t to pass wise laws, but to own the libs and posture for the right-wing voters who dominate Republican primaries.

Sure enough, federal district judge Robert Pittman yesterday signed an injunction preventing enforcement of the new law. In explaining his decision, he cited the right-wing bias of the bill, deplored the myriad of new lawsuits it would invite, and stated that it would basically prevent privately-owned businesses from exercising control over their own property — i.e., their social media platforms.

Governor Abbott will appeal Judge Pittman’s order, of course. “Big Tech” is a popular bogey man for conservatives these days, who remain incensed — they’re always incensed about something — that Twitter kicked Donald Trump off its platform for spreading dangerous lies about the 2020 election. Abbott, who has been on the public payroll for almost all of his professional life, has nothing to lose. He’s playing with taxpayer money, after all, and playing to a voting base he’s going to need in the next election. And this, folks, is how politics works.

Onward.

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Bruce McCandless III

Bruce McCandless III

I'm an Austin-based writer trying to figure out space, science, and Texas politics. For more, see: www.brucemccandless.com