First in a two-part series
Giving a speech at Georgetown University in 2019, Facebook’s Mark Zuckerberg said: “I don’t think it’s right for a private company to censor politicians or the news in a democracy. … I believe people should decide what is credible, not tech companies.”
I was struck at the time by his choice of words. Leaving aside the point that credibility is not the same thing as truthfulness, in ordinary usage only governments can censor. The word itself was originally the title of a Roman government official. Since the early 1800s, according to the Online Etymology Dictionary, it has meant a “state agent charged with suppression of speech or published matter deemed politically subversive.”
Publishers exercise editorial discretion, which isn’t the same thing. When an editor rejects a manuscript, or a radio station chooses not to play a song, they’re not censoring the spurned works.
Facebook routinely exercises editorial control over the material that appears on its website and app. It does so on an industrial scale. According to a company press release, in the first quarter of 2022 it “took action on: 1.8 billion pieces of spam content … [and] 21.7 million pieces of violence and incitement content.”
The site would hardly be worth visiting if the company didn’t perform these clean-up operations. Facebook controls the material seen by its users in more subtle ways, too, employing its notorious algorithm, which amplifies certain posts, seeking to keep users “engaged,” in the company’s terminology, meaning eyes glued to the screen.
Posts that evoke strong emotional reactions are favored. “Starting in 2017,” the Washington Post explained last October, “Facebook’s ranking algorithm treated emoji reactions as five times more valuable than ‘likes,’ internal documents reveal.”
Amping up some posts means amping down others, naturally. Regular Facebook users know how frustrating it can be to search for an older post, one you distinctly remember, but which the company’s largely automated editorial process has since relegated to a digital void.
There’s a good reason why Zuckerberg didn’t want to admit the obvious, that Facebook exercises editorial control over the material seen by its users. Avoiding the label of “publisher” is central to his company’s business model, thanks to Section 230, a federal law that says “no provider or user of an interactive computer service shall be treated as the publisher” of another person’s posts.
Section 230 allows the social media companies to distribute newspaper articles without sharing advertising revenue. When their platforms are misused for libels, deep fakes, doxing, shaming, frauds, drug deals or incitements to violence, they run no risk of legal consequences.
Section 230 gave Zuckerberg a powerful reason to avoid describing Facebook as a publisher. I think that explains why he instead reached for that inappropriate word “censor.”
But now the Texas Legislature has taken him at his word, a potentially calamitous development for his company. Texas’s HB20 (the act has a formal title, but it’s three lines long) explicitly forbids large social media platforms — including Facebook and its sister site Instagram, but also YouTube, Twitter, TikTok, Reddit and others — from engaging in “censorship,” which it defines broadly enough to cover most content moderation.
The law was passed last September for the transparent purpose of punishing Facebook and Twitter for de-platforming former President Donald Trump. But the Texas Legislature didn’t feel it could come right out and say what it meant. Instead it drafted the act in broad, neutral terms, making it applicable across the board.
By enacting such sweeping legislation, Texas has appointed itself internet regulator for all Americans, because, of course, there can’t be one internet for Texas and another for the rest of us.
If you’ve opened an account on Facebook, Twitter, YouTube or Reddit, you’ve agreed to their terms of service. Among many other things, you’ve agreed to have legal disputes decided under California law. HB20 says all such choice-of-law provisions are invalid and that Texas law governs instead.
The act imposes onerous reporting mandates on the platforms, requiring them to reveal detailed information about internal operations, and limits their power to remove posts, de-platform users or de-monetize videos.
The Texas Legislature, in short, wants to govern Americans who live outside of Texas. It wants to exercise some degree of control over what you see, read and hear on your favorite social media platforms.
A federal district judge in Texas issued an injunction temporarily halting enforcement of HB20. On May 31, the Supreme Court upheld the injunction, though only on a 5-4 vote. With the injunction in place for now, the parties have begun litigating in earnest.
There’s much more to be said about HB20 and internet regulation in America. Tune in next time.
Joel Jacobsen is an author who in 2015 retired from a 29-year legal career. If there are topics you would like to see covered in future columns, please write him at legal.column.tips@gmail.com.
