By Royce West
Texas Senate

The so-called election protection or election fraud bill is not the only example of Texas legislators toting the water of a deposed and disruptive former leader of the free world. A quick comparison of the Special Called Session agenda can be called the platform for the re-election campaign of the state's top elected official, which can be seen as parroting the marching orders or grievances of the 45th POTUS.

SB5, on the agenda and now approved by the Senate, was reintroduced during this Special Session. It was SB12 during the Regular Session. The bill would threaten the ability of social media platforms to reject or remove what they consider as objectionable or false information from their sites. SB5 and SB12 considers that such would be censorship. Sound familiar? Could be because of recent lawsuits filed in Florida by a disgruntled user whose accounts were closed and access banned by Twitter, Facebook, YouTube and a list of social media platforms following the events of January 6, 2021 when hundreds of "visitors" and "tourists" overran the nation's capital with malicious intent toward members of Congress and the former vice president.

The lawsuits claim that the social media mega platforms violated the plaintiff's First Amendment Constitutional rights by blocking, then closing his accounts; effectively censoring his right to free speech. But the courts have ruled consistently that the First Amendment provides free speech protections against government censorship, not private entities, while also protecting the editorial judgment of media entities.

Their basis is a unanimous, 1974 U.S. Supreme Court decision authored by none other than Chief Justice Warren Burger, which included that, "…the First Amendment does not permit the government to usurp the role of editors in deciding what ought to be published."

Earlier this month, a Tallahassee federal district court judge blocked implementation of a law passed by the Florida Legislature this year, where fines could be imposed on social media platforms for exercising editorial judgment in their decisions to restrict content from political figures that they felt violated company policies. Judge Robert Hinkle made further distinctions favoring social media entities by saying that they are less responsible for content carried on their platforms than newspapers. But the new law, he said, targeted "ideologically sensitive cases" where the social media companies should be allowed to exercise the same editorial judgement as news entities.

SB12 and SB5 took a different approach, designed to avoid First Amendment implications. Instead, the bills would create strict procedures that must be implemented by social media companies. Violations of the procedures would expose them to civil liability. SB5 allows a company to reject content that would violate its acceptable use and illegal content policies. It permits posts to be banned that contain violent content that would threaten protected groups as defined by federal law. It includes that a social media platform can censor "unlawful expression" or other expressions that are prohibited by federal law.

But the plain language of SB5 prohibits censorship of "the viewpoint of the user or another person" or "the viewpoint represented in the user's expression or another person's expression." In other words if the content does not promote violence or depict acts of sexual exploitation or abuse of children, a user can post whatever they wish; truth be damned!

SB5 would require social media companies to post their use and complaint policies and produce and post a quarterly transparency report on those policies. Companies would also have to notify a user when any content is removed and the reasons for its removal. The user would be allowed to appeal the company's decision.

That said, social media entities bear great responsibilities to prudently manage the hundreds of millions of posts daily; a world of their creation. Critics say they could have done more to prevent open discussion on their platforms leading up to January 6. The U.S. Surgeon General has now called on these global influencers to help silence rampant misinformation that impedes the ongoing fight against COVID. But a law that will chill efforts to make sure that dangerous lies don't continue to bombard undiscerning subscribers is in itself reckless. Whose fault is it when followers, without question, zealously attach to their leader?

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