An attempt by the Texas Legislature and Governor Greg Abbott to bring social media censorship out from the shadows received a blow on Thursday when U.S. District Judge Robert Pitman ordered a preliminary injunction preventing a new law from taking effect.
The law, House Bill 20, was supposed to take effect on Thursday and was intended to force social media companies to provide more transparency regarding content management, including what types of posts would violate their rules. The bill is purported to provide First Amendment protection to users by prohibiting “censor[ing] a user, a user’s expression, or a user’s ability to receive the expression of another person based on” the viewpoint expressed or the user’s location.
Social media, in general, has come under fire primarily from conservative users for seeming discrimination in how policies are applied to posts. The application of these policies even led to former President Donald J. Trump being banned from multiple platforms, including Facebook and Twitter. Those with right-of-center viewpoints complain that their views are being suppressed for various reasons, while liberal posts with similar violations are allowed to remain.
A debate has brewed about the status of social media platforms as a public forum in regard to the First Amendment. The companies operating the social media platforms claim exemption from public forum consideration based on the fact that they are private entities. Users counter this claim citing the Public Forum Doctrine.
According to the Public Forum Doctrine, there are three basic types: Traditional, Designated, and Nonpublic. A Traditional Public Forum consists of “quintessential public forums, (where) the government may not prohibit all communicative activity,” according to an opinion written by Justice Byron R. White of the U.S. Supreme Court in the case of Perry Education Association v. Perry Local Educators’ Association (1983). White went further stating that content-based restrictions are highly suspect. Examples of a Traditional Public Forum would be sidewalks, state parks, and other public facilities.
A Designated Public Forum, also known as a Limited Public Forum, is a place, as described by Wikipedia, “for use by the public as a place for expressive activity.” In describing a Designated Public Forum, White stated that time, place, and manner restrictions must be observed, but also that “a content-based prohibition must be narrowly drawn to effectuate a compelling state interest,” as reported by The First Amendment Encyclopedia hosted by Middle Tennessee State University. Social media has been described as being a Designated Public Forum as its stated purpose is to allow users to communicate their thoughts, emotions, and expressions publicly. Time and place restrictions are moot in regard to these platforms as they are online, and therefore available everywhere, and available at any time of day. Manner restrictions, which the platform operators use as a basis for removals and bans, according to White, would need to “effectuate a compelling state interest,” such as threats of violence or other illegal activity.
Even the Nonpublic Forums have limitations on the restrictions that can be placed on expressions there. “In addition to time, place, and manner regulations, the state may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression…”, White wrote.
As no Supreme Court case has been brought yet to determine the status of social media platforms in regard to being public forums, Texas took the step of making the determination themselves. On September 9, Gov. Abbott signed House Bill 20 into law. Described as “relating to censorship of or certain other interference with digital expression, including expression on social media platforms or through electronic mail messages,” the intent of the bill is to require social media and other platforms to make clear what material specifically would violate their policies. The indication was, as has been claimed by users, that the terms do not clearly state what expression is in violation, or that the policies are applied subjectively.
With an effective date of December 2, the new law sought to protect those who post against censorship on forums that present themselves as public forums.
While the entities providing the social media platforms have tailored their terms and conditions narrowly to claim to be providing forums for the free expression of thoughts and ideas, the terms have at the same time been drawn as vaguely as possible to allow for subjective imposition. This has allowed moderators for the social media pages to direct and restrict posts according to particular opinions, in seeming contrast to their claim to provide free public forums.
Despite Supreme Court rulings that expressions made on or in public forums be restricted only by objective criteria indicating that the expression being prohibited causes a danger to the public-at-large, Judge Pitman’s order of an injunction allows the social media operators to continue censorship subjectively and without explanation.