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On Regulating Social-Media Platforms, Follow Texas, Not Florida

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(Pixabay) Texas’s efforts to rein in Big Tech avoid some of the defects of Florida’s attempt to do the same.

Last Thursday, Texas’s Governor Greg Abbott signed into law a social-media bill that aims to protect Texans from viewpoint-based censorship by social-media companies. Texas is now the second state this year — following Florida — to pass a law of this kind. Yet unlike Florida’s law — which was swiftly enjoined by a federal district court, over potential First Amendment violations — Texas’s is carefully constructed to avoid legal challenges. So while the Sunshine State’s efforts to take action against Big Tech are admirable, its approach should not be replicated. States should instead look to Texas.

There are several strong provisions in the Texas law that other states should especially seek to replicate. First, the type of censorship prohibited in the statute is based on viewpoint. It states that “a social media platform may not censor a user, a user’s expression, or a user’s ability to receive the expression of another person based on the viewpoint of the user or another person; [or] the viewpoint represented in the user’s expression or another person’s expression . . .” Thus, the statute is explicitly prohibiting viewpoint discrimination by social-media companies.

As Philip Hamburger and I recently wrote in the Wall Street Journal, there are several reasons why such a state antidiscrimination law will hold up in court. First and foremost, the statute avoids conflicting with Section 230 of the 1996 Communications Decency Act — the federal statute that many opponents will argue preempts Texas’s law. Section 230 protects the tech companies from liability for restrictions on enumerated types of content. Yet the Texas statute bars only viewpoint discrimination — not content discrimination — and so completely avoids any conflict with the federal statute.

Furthermore, as we explained, there is a clear distinction ingrained in Section 230 between a company’s own speech and the speech of others for which it provides a conduit. A statute limiting the ability of a Big Tech company to express its own views would

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