Testimony of Tom Giovanetti
President, Institute for Policy Innovation (IPI)
Before the Select Committee on
Constitutional Rights & Remedies
Texas House of Representatives
August 23, 2021
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 appreciate this opportunity to share our thoughts on HB 20.
Most people are familiar with the 1st Amendment’s protection against government censorship of private political speech. Simply put, the government cannot prevent Americans from exercising their political speech rights. Of course, there are limits on this protection, as there are limits on all of our rights, because none of our rights are absolute. But the courts have correctly taken a very broad view of this protection against government censorship.
But I’m surprised how many people are not aware of the flip side of this 1st Amendment protection, which is that the government also cannot COMPEL political speech from Americans. In the same way that the government cannot stop us from speaking, it also cannot FORCE us to speak, or to host speech we disagree with.
So government cannot force the Austin American Statesman to carry a particular op/ed, and it cannot force a radio station to carry a particular talk show. It cannot force a TV station to carry a particular program. Those are platforms, by the way.
I’m betting most of you are very sympathetic to the plight of the Christian baker in Colorado, Jack Phillips. The state of Colorado is trying to compel Mr. Phillips to host speech that he disagrees with on his platform. In Mr. Phillips’ case, his platform is his cake. Now, Mr. Phillips has to be willing to sell goods to any willing buyer because of equal access civil rights laws. But the 1st Amendment protects him from the government compelling him to speak or to host speech he disagrees with. This is why Mr. Phillips will ultimately prevail before the US Supreme Court—because the 1st Amendment protects Mr. Phillips against compelled speech.
(By the way—Mr. Phillips likely will NOT prevail before the Supreme Court on religious freedom arguments alone. The more solid legal argument is the 1st Amendment argument against compelled speech).
Now, if you agree that the 1st Amendment prevents the government from compelling Jack Phillips to host speech he doesn’t agree with on his platform—his cake—why would you think it’s okay for the government to compel Facebook or Twitter to host speech on their cake—their platform?
Mr. Phillips’ platform is his cake, and Facebook’s platform is their website. It’s EXACTLY the same issue. They are both private actors, and they are both entitled to exactly the same 1st Amendment protections against government compelled speech.
Now, you may not like some of the moderation decisions made by Facebook or Twitter. Just like the LGBT community doesn’t like the moderation decision made by Jack Phillips. But the 1st Amendment protects Jack Phillips and Facebook from you—from government.
Now, I think some of you already suspect that this bill can’t survive 1st Amendment scrutiny, but you want to move it anyway to score points with constituents. But, with respect, that is illegitimate exercise of the legislative function.
The legislative branch has the same privilege and responsibility to interpret and apply the constitution that the judicial branch has. The judicial branch is not solely tasked with determining constitutionality. You have the same duty that they have.
Too often, legislators pass laws that they don’t think are constitutional, like throwing mashed potatoes against the wall to see what the Judicial branch allows to stick. But that is not the proper exercise of your legislative duties. If you suspect that this piece of legislation will not pass 1st Amendment scrutiny, as I hope I have convinced you, then you should not move this legislation.
Finally, I want to point out that Texas already has an Attorney General, and Texas already have consumer protection laws. If the state of Texas thinks consumers are being harmed by a private sector company, it already has the tools to investigate and prosecute. There is no need for a new law or a new legal regime. The simple fact is that this bill is an unconstitutional political stunt designed to appease some political constituencies. But we should be better than that.