Republican Attacks on Social Media Are Doomed to Fail. That Won't Stop Them | Opinion

Republicans have frequently claimed that social media censors them unfairly. However, a recent study on the subject indicated the reality is much more complicated. The study illustrated that Republicans are correct that they are censored substantially more on social media platforms. In fact, the study showed that Republicans get suspended from Twitter at almost four times the rate of Democrats. It is then easy to see why cries of social media bias ring so strongly in Republican circles.

Even so, that same study looked deeper into the issue and concluded that the reason for Republicans being suspended more often isn't a function of their ideology but is instead linked to their greater propensity to share misinformation. The GOP, the party of alternative facts, is steeped in lies and conspiracy theories. From Q-Anon, pizza-gate, ivermectin and hydroxychloroquine as COVID-19 treatment, microchips in COVID vaccines and dozens of more examples all make clear that the Republican Party is practically committed at a fundamental level to spreading outrageous falsehoods.

A smartphone screen
A smartphone screen is displayed. Matt Cardy/Getty Images

Social media companies targeting those who spread falsehoods with suspension is perfectly within their right as a private company, just as it is their right to suspend accounts sharing pornography, hate speech, or any other content they disagree with or believe will harm their brand by hosting it. The law on this is rather clear, making laws like HB 20 out of Texas doomed to fail absent a rather significant reworking of First Amendment precedent.

The Supreme Court in Citizens United, a case championed by Republicans who were looking to dramatically increase the level of corporate cash in elections, rested on the notion that private companies have a right to free speech. Relatedly, the Court has held since a landmark case in 1943 that the government cannot compel speech, that is to say it cannot force someone to say or sponsor a message they disagree with. One or both of these cases would have to be directly overruled for Republicans to have any hope of truly regulating who or what social media companies have to host on their platforms.

This is what makes it so curious that a Fifth Circuit Federal Court of Appeals panel has recently allowed HB 20 in Texas to go into effect. This law gives both the state of Texas and its citizens the right to sue social media companies that discriminate in any way based on "the viewpoint of the user or another person." This overly broad law seeks to fundamentally alter the way social media companies operate by turning them into an anarchic free for all where anything goes. HB 20 not only strips social media companies of their First Amendment rights, but it also prevents them from exercising their judgment in a host of ways that they believe would improve a user's experience.

Another issue this law is likely to run into is what lawyers term the "dormant commerce clause." The U.S. Constitution explicitly empowers Congress with regulating interstate commerce, which in effect means states cannot pass laws that interfere interstate commerce. Given that social media inherently operates across state borders, HB 20 would inevitably interfere with the user experience citizens of other states enjoy when using these services outside of Texas' borders. The state of Texas simply cannot control these commercial entities as they operate outside the state, Congress would need to do so using its power under the commerce clause.

When Republicans retake the House and Senate, whether it be after the 2022 midterms or any time thereafter, we can expect them to try for just that. The First Amendment considerations that so plainly give social media companies the right to be free of government regulation when it comes to hosting speech they do not want on their platforms will ultimately result in Republicans losing this battle and their leaders know it. Regardless, that will not stop them as their party's identity is built on victimhood and multi-billion dollar social media companies make for excellent fodder in their never ending culture wars.

Nicholas Creel is an assistant professor of business law at Georgia College and State University. His Twitter is @Prof_Peacock.

The views expressed in this article are the writer's own.