• Freedom
  • Innovation
  • Growth

Testimony on Texas House Bill HB 2587, "Relating to the Censorship of Users' Expressions By an Interactive Computer Service

Testimony of Tom Giovanetti
President, Institute for Policy Innovation (IPI)

Before the State Affairs Committee
Texas House of Representatives

April 8, 2021

HB 2587 / SB 12


Thank you Mr.\Madam Chairman for this opportunity to share our thoughts. My name is Tom Giovanetti, and I am the president of the Institute for Policy Innovation, a 34 year old conservative, free-market policy think tank in Dallas. We’ve worked over the years with several members of the committee on various issues, you know us, you know our commitment to principle, and I hope you’ll consider our thoughts.

We have been closely following Internet and communications policy at IPI for 25 years and have seen many Internet panics come and go. We’ve seen MySpace declared a dangerous monopoly, just before fading into irrelevance. We’ve seen Yahoo go from bring the most dominant Internet search engine and website to an embarrassing also-ran. We’ve seen the AOL/Time Warner merger go from being an existential threat to competition, to a business school case study in failure. In all of those cases the government did not step in, but rather let the market do the rewarding and the punishing. The latest furor is over social media.

Both conservatives and progressives are angry at social media, for different reasons. Each is convinced that the other side is being advantaged, and that they are being discriminated against. Because Texas is a red state, here it’s my fellow conservatives who are trying to use the power of government to try to direct marketplace outcomes in their preferred direction, something they strongly criticize when the other side does it.

I want to associate myself with the testimony of Mr. Steve Delbianco of NetChoice. His testimony demonstrates that it is clear that the legislation before you violates the First Amendment in not one but several ways. Each of you takes an oath to preserve, protect and defend the Constitution and the laws of the United States, and so if it can be demonstrated that a bill violates US law, your oath should inform your decision, regardless of your own personal preferences.

I keep using the word “preferences” because for those of us who believe in and defend free markets and limited government, we understand that markets don’t always go in the direction we might think they should, or that we would prefer. We might not always like the results a given industry or market gives us, but that doesn’t mean the market is wrong or needs guidance by the loving hands of government. It just means the market may not be delivering to us our preferred outcome.

We who claim to be free-market conservatives don’t claim that markets are perfect—they are not. Markets cannot be perfect because they are composed of imperfect human beings. So markets aren’t perfect—they’re just better than the alternative of government direction. If you claim to believe in free markets and limited government, if a given market isn’t giving you the result you prefer, at this moment in time, you don’t conscript the government to enforce your preferences.

We free marketers also don’t ever have to defend a market at a particular slice in time. You may not like the result a given market is delivering, but these things change over time as both consumers and providers learn. Markets are an ongoing conversation between customers and providers, and each must listen to each other, because there is no compulsion in free markets. Compulsion only comes from the hand of government.

Customers are not forced to patronize these platforms, and if the platforms do not please their customers, they will go the way of MySpace and Yahoo. You should let that conversation continue in the market, rather than using the power of government to try to force your favored outcome. Compulsion by government over private actors is a violation of liberty.

That’s why the First Amendment will not tolerate compelled speech, and this bill compels speech by platforms and providers. The First Amendment protects private actors from government compelling their speech. The First Amendment protects them from you, not you from them. The First Amendment is a limitation on government, not an obligation on private actors.

So those are constitutional and economic arguments against this legislation, and I would hope you would find them to be compelling, but if not, I have a more practical consideration for you. While you may not like the content moderation decisions social media platforms make, I assure you will like the alternatives a lot less.

If government makes content moderation more fraught with legal liability, platforms will be forced to move in one of two directions. Either they will moderate far less, in which cases these platforms will be flooded with pornography and violence, and you’ll like that a lot less. OR they will decide they have to moderate content much more tightly in order to avoid liability, in which political speech will be chilled, just as the Fairness Doctrine chilled political speech on the broadcast airwaves before the Reagan administration eliminated it.

This is why I’ve centered my comments around the idea that markets aren’t perfect—they’re just better than the alternative. We likely have the best possible social media world right now—far from perfect but engaged in an ongoing engagement with users and not yet distorted by government speech regulation.

The political joke of the week is the way Democrats in Washington are redefining the term “infrastructure” to mean whatever they want it to mean. It turns out infrastructure is just whatever Democrats want.

Well, they’re not the only ones redefining and misusing terms. No matter how many times proponents of this legislation claim that Internet platforms are the “new public square,” they are not. No matter how many times proponents of this bill claim that they are “common carriers,” they are not. No matter how many times these companies that actively compete with each other are called “monopolies,” they are not.

They also do not censor, because censorship by definition involved government action. When a government says that a particular movie cannot be shown, that’s censorship and a violation of the First Amendment, as courts found back in the 1970s. But the MPAA can tell a movie producer that his film will get an NC-17 rating unless he cuts a scene here or there. That’s content moderation, not censorship.

The only reason the movie and computer game ratings systems work is that they are voluntary and not compelled by government. If the government stepped in and tried to do it, that would be censorship and a violation of the First Amendment. We encourage private actors to moderate content for the good of society, but we don’t allow government to do it. So social media platforms do not censor—they moderate content, and we want them to.

The most shocking and counterproductive thing that could happen with this legislation is that by declaring private businesses to be part of the “public square” as a means of justifying speech regulation, or by redefining terms like “common carrier,” you will be unintentionally facilitating a dramatic increase in the government’s power to regulate private speech. What other private businesses can simply be deemed the “public square” by other political actors for other reasons? If you claim to believe in limited government and free markets, please don’t be the agents of dramatically expanding government’s power to regulate speech in the marketplace of ideas.