That depends on whom you ask, but a lot of U.S. adults think so, according to a new poll by Pew Research. More than 90 percent of conservative Republicans believe social media companies are censoring political views they find objectionable. They point to Twitter’s ban of former President Donald Trump after the U.S. Capitol riot and the de-platforming of right-wing celebrities like Alex Jones. Those with more liberal leanings agree it’s likely but to a lesser extent.
Both groups support more regulation of these tech giants but for different reasons. Democrats want to hold them accountable for the misinformation and right-wing conspiracy theories flourishing on their platforms, while Republicans want to make it illegal to censor or ban people because of their political views.
Legislators in Texas and Florida see online censorship as the problem and passed new laws that make it illegal in their states. Both laws have been challenged in court on First Amendment grounds, and the Supreme Court will probably have the final say on this issue.
In Texas, it all started with a law known as HB 20 that forbids platforms with more than 50 million users from discriminating against people based on their viewpoints or political ideology. While this case, NetChoice v. Paxton, worked its way through state and federal courts, social media companies were granted an injunction to block the law because it effectively forced them to publish what they consider harmful content.
The US Court of Appeals for the 5th Circuit has now upheld the Texas law in what some legal experts call “an astonishing opinion… that effectively puts Texas Republicans in charge of major social media platforms such as Twitter, Facebook, and YouTube” and “legally bonkers.”
The 5th Circuit Court of Appeals rejects that interpretation and views these platforms more like telephone companies than newspapers because they provide essential services. In a 90-page opinion, Judge Andrew Stephen Oldham (left) said that HB 20 protects “the free exchange of ideas and information in the state.”
He also insists that social media companies do not have the right to censor what people say. “The Texas law does not chill speech; if anything, it chills censorship,” said Oldham, a Trump nominee and former law clerk to Justice Samuel Alito.
The social media companies are in a tough spot, but they have several options before the Texas law takes effect. They could decide to comply and stop moderating all content for Texas users, which would flood their platforms with even more misinformation, conspiracy theories, and hate speech. They could also stop doing business in Texas and “geoblock” everyone living there to avoid violating the statute.
As for legal remedies, they can request a rehearing by the full Circuit Court or appeal the 5th Circuit’s decision to the Supreme Court in what would be a blockbuster case, no matter what the justices decide.