Is the new Texas law on social media invalid on first amendment grounds?

Question

I have just seen this video on Youtube:

"Republican Texas governor Greg Abbott has signed a law that forbids social media companies from banning people from their platforms based on their location and/or their politics. "

I presume this is intended to prevent things like Twitter banning Trump from posting.

Is this law unconstitutional, on the grounds that it violates freedom of the press? As I understand it, the First Amendment means the government can't tell any publisher what political opinions they must publish, or must not publish. If that is correct, does 'the press' include social media?

Answer 1

most likely

The government can't compel people to some sort of speech under the 1st amendment. Forcing a company to host people is compelled speech by the company.

It is well established that the government can't compel a newspaper to host its messages as it wants. The key case might be Miami Herald Publishing Co. v. Tornillo 418 US 241 (1974). In this case, it was deemed unconstitutional that a newspaper would need to host speech of a political candidate the newspaper didn't like in the same amount it had used to disparage that candidate.

While the Miami Herald brought the newspaper into the line by the action of the newspaper, Wooley v. Maynard 430 U.S. 705 (1977) held that the state could not force any citizen to host its motto. Or for the matter, any message.

The State may not constitutionally require an individual to participate in the dissemination of an ideological message by displaying it on his private property in a manner and for the express purpose that it be observed and read by the public. Pp. 71717.

Forcing a public web page to host advertisement or speech from any government - or under the threat of the government action - is compelled speech and violates the rulings of Miami Herald, Wooley and other cases.

However, there is a little light for the government under PruneYard, Turner Broadcasting and Rumsfeld. However, all of them don't cut here: Turner Broadcasting was about a service provider for radio that did not host its own speech. PruneYard is a shopping center that doesn't host its own speech and is only useful in California as there is a California constitution issue. And Rumsfeld dealt with military recruitment, which always is special.

A similar Florida law was deemed to be very likely unconstitutional by the (federal) Northern District of Florida (Injunction Text)

Addendum

A joint lawsuit by NetChoice & CCIA was filed against Texas on 22nd September 2021 (Complaint), asking for a preliminary injunction. NetChoice puts its filings on their website.

Further reading:

• Ken White - Make No Law podcast #11: Deplatformed
• Ken White - Section 230 Is The Subject of The Most Effective Legal Propaganda I've Ever Seen

01st December 2021 Update

Indeed, the relevant parts of HB20 were put out of enforcement via injunction on December 1st, 2021, reasoning that:

Social media platforms have a First Amendment right to moderate content disseminated on their platforms. See Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1932 (2019) (recognizing that “certain private entities[] have rights to exercise editorial control over speech and speakers on their properties or platforms”). Three Supreme Court cases provide guidance. First in Tornillo, the Court struck down a Florida statute that required newspapers to print a candidate’s reply if a 13 newspaper assailed her character or official record, a “right of reply” statute. 418 U.S. at 243.

[...]

In Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., the Supreme Court held that a private parade association had the right to exclude a gay rights group from having their own float in their planned parade without being compelled by a state statute to do otherwise. 515 U.S. 557, 572– 73 (1995).

[...]

Finally, the Supreme Court ruled that California could not require a private utility company to include a third party’s newsletters when it sent bills to customers in Pac. Gas & Elec. Co. v. Pub. Utilities Comm’n of California, 475 U.S. 1, 20–21 (1986).

HB 20 compels social media platforms to significantly alter and distort their products. Moreover, “the targets of the statutes at issue are the editorial judgments themselves” and the “announced purpose of balancing the discussion—reining in the ideology of the large social-media providers—is precisely the kind of state action held unconstitutional in Tornillo, Hurley, and PG&E.” Id. HB 20 also impermissibly burdens social media platforms’ own speech. Id. at *9 (“[T]he statutes compel the platforms to change their own speech in other respects, including, for example, by dictating how the platforms may arrange speech on their sites.”). For example, if a platform appends its own speech to label a post as misinformation, the platform may be discriminating against that user’s viewpoint by adding its own disclaimer. HB 20 restricts social media platforms’ First Amendment right to engage in expression when they disagree with or object to content.

For these reasons, IT IS ORDERED that the State’ s motion to dismiss, (Dkt. 23), is DENIED.

IT IS FURTHER ORDERED that Plaintiffs’ motion for preliminary injunction, (Dkt. 12), is GRANTED. Until the Court enters judgment in this case, the Texas Attorney General is ENJOINED from enforcing Section 2 and Section 7 of HB 20 against Plaintiffs and their members. Pursuant to Federal Rule of Civil Procedure 65(c), Plaintiffs are required to post a $1,000.00 bond.

IT IS FINALLY ORDERED that Plaintiffs’ motion to strike, (Dkt. 43), is DISMISSED WITHOUT PREJUDICE AS MOOT.

Answer 2

That will be determined later by the courts. You might think so, if Facebook etc. were strictly private platforms. Knight First Amdt. Inst. at Columbia Univ. v. Trump, 928 F. 3d 226 somewhat undermines that thinking. The court disallowed Trump from exercising ordinary First Amendment control over his account. In reviewing the lower court finding,

After concluding that the defendants had created a public forum in the interactive space of the Account, the court concluded that, by blocking the Individual Plaintiffs because of their expressed political views, the government had engaged in viewpoint discrimination.

The appeals court said that

we agree that in blocking the Individual Plaintiffs the President engaged in prohibited viewpoint discrimination

The court rejected the contention that

the Account is exclusively a vehicle for his own speech to which the Individual Plaintiffs have no right of access and to which the First Amendment does not apply.

An analogous law was passed in Florida. There was a lawsuit and enforcement was stayed, which means that the court found that the arguments against the law were likely to prevail. The answer w.r.t. the Texas law hinges on the difference between the Florida vs Texas laws, and the basis for the injunction against the Florida law.

Answer 3

No one knows how the courts will eventually rule on this law, or on the somewhat similar Florida law now being litigated.

It is true, as the answer by Trish says, that the government cannot compel a publisher to publish things against its wishes, and that an individual cannot generally be compelled to make statements of political views. In West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) the US Supreme Court wrote:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.

However Section 230(c)(1) of the Communications Decency Act says that:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

Thus requiring that a person be allowed to have an account is not requiring the owner of the service to publish anything, since the owner is not the publisher of any user's content, nor does it require the owner or anyone else to make any statement, and in particular not to make any statement specified by the government.

It is constitutional, in general, for a state to pass anti-discrimination laws, or laws requiring that a business give access to particular groups of people. If a social media platform is treated as a service allowing people to publish their own views, then the state may pass laws limiting the exclusion of people from that service on particular grounds.

That does not prove that the law is constitutional, but it shifts the ground of inquiry significantly. The exact provisions of the Texas and Florida laws may be significant in the eventual decision.

I doubt that Knight Institute. will be found relevant. That case was based on the very unusual situation that a public official, and in particular the president of the United States, was using social media as a means for distributing official policy statements, and as a public forum for comments on them, and it was held that Trump could not, in those circumstances, exclude specific individuals, as that would constitute government action against those people. That situation is quite different from the ones under the Texas and Florida social media laws.

Answer 4

The Knight ruling does not address the rights of the company owning the platform and their ability to set rules, regulations, and policies on their services. Each PERSON may have rights but they quickly diminish if he/she violates terms of service. The idea they are of a public forum will not stand up over long term scrutiny. No way. People think the idea of free speech is sacred, and it is, but free enterprise reigns supreme and nobody is going tell a private company how it should regular it's own IP. That's far more dangerous than any bogus free speech argument here, of which there is none.