This week, the Texas Public Policy Foundation, on behalf of its client The Texan, filed an amicus brief with the Fifth Circuit Court urging it to uphold anti-censorship legislation passed in the previous legislative session.

The brief, filed in support of the state of Texas, focuses on the interplay between free-speech rights and a federal law referred to as Section 230, that shields the social media platforms from legal liability for what is published on their sites. The legislation involved, H.B. 20, requires large social media platforms to host speakers on equal terms, not discriminate based on viewpoint, and publish certain information about their moderation practices and other matters of transparency.

“[W]hile it is understandable that a company would seek maximum freedom and minimum responsibility, [the Court should] reject such an arrangement.  … [T]raditional publishers may be protected by the First Amendment, but they are also responsible for their words and actions,” the brief reads.

Like newspapers and other media, The Texan does not enjoy Section 230 protections. But, continues the brief, the social media companies “are not willing to accept such a trade-off.  They seek Section 230 protection and First Amendment protection and zero additional legislatively imposed burdens. The Court should decline to build them this legal Eden.”

“The social media platforms have tried to claim that Texas is censoring their speech by requiring them to treat all users equally,” said TPPF Senior Attorney Matt Miller. “But they are in this predicament because they want to enjoy the protections of the First Amendment without accepting any responsibility for what gets published on their sites.  As The Texan’s brief makes clear, these companies should make the same choice that The Texan made: Do they want Section 230 protection or full First Amendment protection? This is a classic case of trying to have their cake and eat it, too.”

“The Texan is dedicated to this effort to distinguish the difference between biased platforms, which are blatantly censoring viewpoints and news outlets who publish content through an extensive editorial process,” said Konni Burton, Founder & CEO of The Texan. “If Google, Facebook, and Twitter have decided to shape public discourse via what speech they will “allow” on their sites, then they need to quit hiding behind the 230 protections that Congress intended to provide unbiased platforms.”