Author Of Texas’ Social Media Law Admits That He Meant The Law To Exempt Any Moderation Decisions Protected By Section 230 (That’s Everything)

Well, this is awkward. Yesterday I wrote about how there was a strong argument that Twitch’s removal of the mass murderer in Buffalo’s livestream of his murder spree violated Texas’s ridiculous social media law. The main saving grace for Twitch would be that it was possible (though it’s unclear) its userbase was just under the 50 million US average monthly users required to trigger the law. However, even if the law didn’t reach Twitch, it definitely reaches Facebook and Twitter, two other platforms that have been trying (and not always succeeding) to remove the video.

That said, it was a bit surprising when the main author of the bill, Briscoe Cain, showed up in my Twitter mentions to insist that the bill does not prevent Twitch from removing the video. His answer was revealing, though not in the way he meant it to be.

If you can’t see the image, Cain says that “HB20 specifically authorizes social media platforms to censor that kind of content.” Then he posts a screenshot of two laws. First he posts the part of HB20 (Section 143A.006) that says:

This chapter does not prohibit a social media platform from censoring expression that:

(1) the social media platform is specifically authorized to censor by ;

And he highlights the “federal law” part. Then he, somewhat amazingly, posts a screen shot of the Good Samaritan section of Section 230, and specifically highlights the “excessively violent” part of 230(c)(2).

No provider or user of an interactive computer services shall be held liable on account of–

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, , harassing, or otherwise objectionable, whether or not such material is constitutionally protect.

So, there are many, many, many problems with this, but let’s get to the biggest one. Mainly: he is admitting that any moderation choices that are protected under Section 230 are exempt from his law, because he’s claiming that his law incorporates Section 230. Which is all moderation choices. Which means he is admitting that his law actually does nothing at all. Or, at best, that it’s a kind of “trigger law” that really only matters if Section 230 is repealed or massively reformed.

Considering that, in defending the law, the State of Texas explicitly claimed that HB20 is not preempted by Section 230, this is quite an admission. Here was the argument the state made, which the author of the bill now concedes as false:

Section 230 simply does not preempt H.B. 20. This is so for two reasons. Preemption is a specific concept: “Congress enacts a law that imposes restrictions or confers rights on private actors; a state law confers rights or imposes restrictions that conflict with the federal law; and therefore the federal law takes precedence and the state law is preempted.” The “restrictions” that H.B. 20 imposes on interactive computer services do not conflict with the “rights”—immunity from damages liability for third party content hosted— Section 230 confers on them.

So, HB20 is not preempted by 230, but since 230 protects the moderation choices and HB20 is preempted by federal law… it does?

Anyway, Cain’s argument is even dumber. Note what HB20 says: that it does not prohibit moderation choices (which he falsely calls censorship) if the website is “specifically authorized to censor by federal law.” The implication of his claim, then, is that he thinks (incorrectly) that moderation only exists on social media platforms because 230 “authorizes” them to moderate.

That is very, very wrong. The 1st Amendment is what allows websites to moderate. They have their own 1st Amendment rights that allow for editorial discretion and a right not to associate with anyone or any idea. Section 230 simply provides a procedural setup that allows bogus mistargeted lawsuits to get kicked out of court quickly.

But just the fact that Briscoe Cain thinks that social media websites need 230 to “authorize” them to moderate raises questions about his competence as an actual legislator to understand literally any of this.

Of course, when people started to confront him over this, he refused to give a direct answer, and started claiming that people had trouble reading his law. I don’t believe that’s true. The actual problem is that Cain apparently doesn’t even understand the law he has written, and how it intersects with both Section 230 and the 1st Amendment.

Yet another reminder: we should elect fewer stupid people.