Most of us are familiar with the First Amendment of the U.S. Constitution, which not only protects the free speech rights of Americans, but which also protects us against government compelled speech. In other words, the government can’t force you to engage in political speech or to facilitate political speech with which you don’t agree.
But the Texas Constitution contains similar language, stating in Article 1 Section 8 that “no law shall ever be passed curtailing the liberty of speech or of the press.”
Texas is thus subject to BOTH hallowed free speech protections, but that didn’t stop the Texas Legislature 185 years later from passing a law that does violence to both.
During its last session, the Texas Legislature passed HB 20, which was designed to punish social media platforms for assumed offenses by creating new legal liabilities and regulations for such platforms based on how they choose to moderate content. Similar legislation was also passed in Florida.
Opponents of the new law, including us here at the Institute for Policy Innovation (IPI), argued that the law was blatantly unconstitutional because it has the effect of compelling private social media platforms to host speech that they don’t want to host. In other words, government compelled speech.
Proponents have argued that this was a principled stand for freedom of expression, but the intent of the law is clearly to punish those who do not comply with the wishes of one segment of the political class. As proof, the law does not apply to all online activity or platforms but only to particular social media platforms with a large U.S. user base.
As expected, HB 20 was quickly blocked by a temporary injunction, as was the Florida legislation. But then unexpectedly, the Fifth Circuit Court of Appeals lifted the temporary injunction, meaning Texas can now begin enforcing the law.
One disturbing detail of the Fifth Circuit’s curious decision: Judge Edith Jones, who is considered an exemplary judge by many conservatives, seemed utterly confused about basic internet distinctions, insisting that social media platforms like Twitter and Facebook “are not websites.” “Your clients are internet providers,” she declaimed, confusing them with ISPs like Comcast and AT&T. Trade industry groups representing tech companies have filed an emergency application with the Supreme Court to again block the law.
Private businesses are in the best position to understand what their customers want, and customers are free to interact with the products and services that best suit their needs. Government interference in that exchange is not harmful, it’s odious to anyone who prizes individual choice over government control.
Like the Texians before them, today’s Texans overwhelmingly believe in free markets, private property, individual liberty and lesser government. HB 20 violates not only these principles but also the free speech protections of both the U.S. and Texas Constitutions, and so we look forward to seeing it overturned soon.