Texas Social Media Bill is Expensive Mess for Taxpayers

Sometime in the next few days, perhaps even hours, the Texas House of Representatives is set for a final vote on S.B. 5, a bill that would essentially force social media companies and other online services to host all sorts of content, implementing a blanket ban on “censoring” based on the “viewpoint of the user[.]” The bill passed the Texas Senate about a week ago.

There are a number of problems with S.B. 5, not least of which, unbelievably, is one that was highlighted this week with the fall of Afghanistan to the Taliban. A Taliban spokesperson just recently criticized Facebook directly for their current policy of moderating out Taliban-affiliated content. Should the legislation pass in its current form, covered entities such as Facebook would be prevented from removing pro-Taliban content. It’s hard to imagine that’s an outcome anyone wants.

Another glaring issue is that a similar law recently enacted in Florida has already been shredded as unconstitutional by a federal judge.

Florida’s law is slightly more nuanced, applying the Texas standard of viewpoint neutrality solely to declared political candidates and journalists while forcing covered web services to jump through all sorts of hoops before removing content posted by anyone else. Regardless, the underlying principles are the same and aim to limit the ability of private web services to remove content at their discretion.

Judge Robert L. Hinkle of the United States District Court for the Northern District of Florida issued a preliminary injunction against the State of Florida on June 30th. His ruling offered no kind words for Florida’s statute: “[T]he State has asserted it is on the side of the First Amendment; the plaintiffs are not. It is perhaps a nice sound bite. But the assertion is wholly at odds with accepted constitutional principles.”

Judge Hinkle concluded, “The legislation now at issue was an effort to rein in social-media providers deemed too large and too liberal. Balancing the exchange of ideas among private speakers is not a legitimate governmental interest.” It’s hard to see how the Texas bill is any different in this respect. In short, should S.B. 5 pass, all that Texas taxpayers should expect is a swift legal defeat, amounting to a significant waste of taxpayer time and resources.

And the resources in question are indeed significant. Judge Hinkle’s ruling against Florida was only a preliminary injunction, despite the certitude of his language. The case will undoubtedly be argued and appealed many more times, all at taxpayer expense. To get a sense of how much this could cost, we can look to the budget request Texas Attorney General Ken Paxton made for his recent antitrust suit against Google: $43 million. 

It would be beyond foolish for Texans to have to shell out tens of millions more to defend S.B. 5 should it become law, especially with Florida’s case already going about as poorly as possible. With families and small businesses still picking up the pieces from the Covid-19 pandemic, Texans undoubtedly know better ways to spend taxpayer money than defending painfully unconstitutional statutes which would also inadvertently benefit the Taliban.

Patrick Hedger is the Vice President of Policy at Taxpayers Protection Alliance