A Letter from Austin #1: Texas Grapples With GIFS

Healing Hurt Feelings on the Right

The Texas Legislature has a long and ignominious history of bad lawmaking, but several recent bills — now signed by the Governor and either in force or scheduled to take effect soon — make past legislative sessions look like proceedings of the Continental Congress by comparison.

One of the worst of these new laws is HB 20, what I call the “Hurt Feelings Bill,” which would prevent big social media platforms like Facebook and Instagram from removing nasty, dishonest, or downright seditious content — what the State of Texas calls “digital expression” —from their electronic platforms. Governor Abbott signed the bill into law on September 9th, with an effective date of December 2nd of this year.

Everyone knows a right-winger, and in some cases a left-winger, who claims to have been “censored” by Facebook and sent to Facebook jail simply for posting something perfectly reasonable, like Stupid Democrats Stole the 2020 Election, We Just Can’t Figure Out How; or Q Says Only Four Jews Died in the Holocaust and They Were All Killed by Dr. Fauci; or Hey, This Expletive-Laced Diatribe about Kamala Harris’s Sexual Practices is a Perfectly Legitimate Exercise in Political Discourse.

But let’s start with a basic proposition. A private company doesn’t violate your constitutional rights by telling you to shut up 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. That’s what the First Amendment is all about.

The Texas Republican Party loudly claims to be against government regulation and bureaucratic interference in commercial relations. 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?

These companies, which employ lots of Texans right here in Texas, are now going to 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. Aggrieved individuals are empowered to sue the 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 asite.

Furthermore, the Attorney General of Texas, the aforementioned Ken Paxton, currently under indictment, a man who sued the San Antonio Independent School District for requiring its employees — not its students, mind you, but its employees — to receive Covid vaccinations; 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 will be lots of cumbersome and expensive regulation these social media companies will 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? Quite possibly.

There’s only one saving grace.

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.

In the meantime, though, Texas taxpayers will be asked to fund the inevitable litigation to come — indeed, one lawsuit challenging the law has already been filed — in which we’ll defend Greg Abbott’s attempt to soothe the hurt feelings of his and Donald Trump’s right-wing voters. It’s nice work if you can get it — especially when somebody else is footing the bill.

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Bruce McCandless III

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