Amicus Brief Hails Texas Social Media Law as Curbing Platforms’ ‘Unique Powers’

The Center for Renewing America views HB-20, the Texas social media law, “as an important step in preserving free speech in America,” aid the group's U.S. Supreme Court amicus brief Thursday (docket 22-555) in support of the statute and Texas Attorney General Ken Paxton (R). The center’s founder, Russ Vought, was OMB director under President Donald Trump.

In challenging the Texas social media law, NetChoice and its defenders “start from the assumption that long-established principles of First Amendment law protect in absolute fashion their editorial judgments that keep out not only pornography and obscenity but also various forms of disinformation that they deem harmful to the public at large,” said the brief. In their view, First Amendment principles “are constant” so that they don’t vary “with technological changes and social circumstances,” it said.

HB-20 challenges that view, looking to the “unique powers” that the social media platforms have over the market, “allowing them to favor or silence certain users and their viewpoints,” said the brief. The Texas statute “is a regulatory response to this problem,” it said.

The strongest defense for the Texas statute “rests on the massive technological changes that have transformed every aspect of how these platforms do business relative to earlier operations under simpler models,” said the brief. Those platforms operate as “huge communication hubs” whose basic operations are subject to “powerful network effects,” it said.

In that environment, those networks that maximize the useful interconnections for their subscriber base “will quickly emerge as dominant,” said the brief. The “marginal consumer” will tend to prefer “the greater accessibility of the large network to the fewer options available on fringe networks,” it said. Those dominant firms are then in a position “to engage in powerful forms of discrimination that can drive certain businesses from their sites,” it said.

The web services operations of those social media platforms “allow them to terminate any recalcitrant firm without notice and without a hearing,” said the brief. That expands their control over social media platform content that prevents certain firms, like Parler, from reaching their target audience, it said. The media company Starboard acquired the right-leaning Parler April 14 and shut it down the same day.

“Most ominously,” it’s “highly likely” that the social media platforms coordinate their activities “in ways that violate the antitrust laws,” said the brief. It’s now established “beyond any doubt” that various federal agencies have used “both carrots and sticks” to get the social media platforms to follow government policies without publicly acknowledging that those platforms “have lost their intellectual and political independence,” it said.

HB-20 rests on the "major premise" that viewpoint discrimination by the government is “a cardinal sin,” said the brief. Its viewpoint discrimination prohibition ensures that neither the platforms nor the government working through them “will slant and control the direction of public discussion by excluding unwelcome or unconventional views,” it said.

There’s nothing in the case law that blocks HB-20, said the brief. NetChoice relies on “overreading” cases in the pre-social media era, where SCOTUS held that states couldn’t force newspapers to publish replies to their editorials, it said. But those cases are irrelevant because the platforms “have all the indicia of illicit monopoly control of speech,” it said. That justifies the imposition of a “narrow remedy,” such as HB-20's viewpoint discrimination prohibition, it said.