Texas and Florida Push for Laws Against Tech Censorship

Tech Giants and States Battle Over Free Speech Rights

by Faruk Imamovic
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Texas and Florida Push for Laws Against Tech Censorship
© Getty Images/Drew Angerer

Texas, Florida, and other Republican-led states are passing laws aimed at prohibiting tech companies from "censoring" users. Republican leaders assert that these laws are intended to protect their constituents' rights to free speech. However, tech companies argue that it is these very laws that are infringing on their rights, casting the companies themselves as the true victims of censorship.

Tech-interest groups are fighting these regulations in court, contending that their content moderation decisions and ranking algorithms are forms of expression protected under the First Amendment. They claim that state laws aiming to control these aspects infringe upon their speech rights. This battle is unfolding in courts across the country, from state levels to the U.S. Supreme Court, raising profound questions about the nature of free speech and the extent of its protection.

The Legal Tangle Over Content Moderation

The roots of these legal battles lie in the growing role of social media in shaping political discourse. Platforms like Facebook, Twitter, YouTube, and TikTok have become influential arenas for politicians, activists, and the media. However, these platforms have faced significant criticism, primarily from the political left, for amplifying misinformation, bigotry, and division. In response, social media companies have developed sophisticated systems combining automation and human oversight to detect and remove posts that violate their rules. They have also adjusted their algorithms to avoid highlighting problematic content.

However, these efforts have not gone unchallenged. On May 11, a federal appeals court allowed Texas to proceed with a law that bans large internet sites from censoring users' posts based on viewpoint. This ruling appeared to support the argument that users' rights to be heard on social media could outweigh tech companies' rights to control what content appears on their platforms.

Tech companies quickly appealed to the Supreme Court, seeking to halt the Texas law while the lower court case proceeds. A ruling from Justice Samuel A. Alito Jr. is expected soon, which will offer an early indicator of how this broader debate might unfold nationwide.

Meanwhile, another federal appeals court took a different stance on May 23 regarding a similar Florida law. The 11th Circuit upheld a lower court's decision to suspend large portions of Florida's social media law, arguing that tech companies' content moderation and algorithm decisions constitute "constitutionally protected expressive activity." This decision aligns with long-standing legal precedents advocating for minimal government interference in free speech but also acknowledged that social media content curation is a form of protected speech.

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The Push and Pull of Free Speech

The differing rulings from the 5th and 11th circuits highlight the complexities and nuances of these legal challenges. For instance, while the 11th Circuit found many aspects of Florida's law unconstitutional, it reinstated provisions requiring tech companies to disclose information about their content moderation processes. These provisions include spelling out content moderation standards, showing users view counts on their posts, and providing suspended users access to their data. However, the court struck down a provision requiring platforms to explain their reasoning for suppressing posts and another mandating a chronological feed option.

Mary Anne Franks, a University of Miami law professor, and critic of "First Amendment absolutism" argues for reforms that hold tech companies accountable for harmful content. Nonetheless, she agrees with the 11th Circuit's decision, comparing the requirement for a chronological feed to forcing bookstores to arrange books chronologically — a violation of their right to curate content.

These rulings could significantly impact not only efforts by the right to restrict content moderation but also progressive proposals aiming for greater accountability from tech companies. Recent momentum has grown around bills spurred by whistleblower revelations, like those from Frances Haugen, highlighting how algorithms prioritize engagement over social responsibility. Some proposed bills suggest removing liability shields from platforms under Section 230 of the Communications Decency Act if their algorithms amplify harmful speech. Others push for transparency or external oversight of these algorithms.

Based on recent court opinions, such proposals are likely to face legal challenges from tech groups citing First Amendment violations. Emma Llanso, director of the Free Expression Project at the Center for Democracy and Technology, notes that regulating social media algorithms is not impossible but requires the government to demonstrate a compelling interest and avoid overly burdensome regulations. Transparency-focused regulations may have the best chance of surviving judicial scrutiny.

The Future of Free Speech Online

The recent court decisions underscore that the core legal questions remain unresolved, especially with the contrasting rulings from the 5th and 11th circuits. At the heart of the debate is whether regulating tech companies only concerns their speech rights or if these companies wield enough power over individual speech that users' rights should also be considered.

Historically, conservative thinkers have supported the idea that protecting platforms' speech rights is the best way to safeguard users' speech. However, a shift among Trump-aligned Republicans, including Texas Gov. Greg Abbott, Florida Gov. Ron DeSantis, and Supreme Court Justice Clarence Thomas, suggests a growing belief that individuals may need protection from corporate censorship.

Genevieve Lakier, a University of Chicago law professor, points out that while the Texas and Florida laws may go too far, there is merit in reconsidering users' speech rights. She advocates for a more balanced approach that considers the significant influence of social media platforms on public discourse.

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