House Bill 20, which passed on Sept. 9, prohibits email service providers from "impeding the transmission of email messages based on content." Eric Goldman, a professor at Santa Clara University of Law whose research and teaching focuses on Internet, IP and advertising law topics, says this restricts efforts to control email spam.
"The bill says you cannot 'impede' email based on its content, which is what every spam filter does, unless the email service provides a process for the spammer to contest the blocking," Goldman explains. "The nuance is email services aren't in the business of hearing billions of complaints from spammers saying 'you didn't have the right to block me.' Email services can't do that. It's not a scalable option for them."
Goldman says he believes the goal of the bill was to make sure solicitation emails from former president Donald Trump's campaign did not end up in spam folders. The California law professor has been openly critical of the bill, sounding the alarm in his Technology and Marketing Law Blog, in which he calls the new law "purely performative."
"Politicians say X got treated more favorably than Y, so that must prove bias," Goldman says. "Many of us know better than that. The concerns under the law about this anti-conservative bias are not provable. They're not scientifically defensible. The entire bill is built on an artifice."
Since its passage, Facebook, YouTube and Twitter have sued Texas over the law, according to Jessica Guynn of USA Today. Gov. Greg Abbott recently released a Washington Post op-ed defending the law, saying its need "has been apparent for years."
"Our country's public square has become increasingly controlled by a few powerful companies that have proved to be flawed arbiters of constructive dialogue," Abbott wrote. "Twitter, Facebook and other massive platforms aren't just any private companies. They are our modern-day public square, and effectively control the channels we use for discourse."
Goldman argues the law is unconstitutional and says while it postures as a supposed fix to de-bias social media services, it is actually a form of censorship in and of itself.
"The principle justification for other parts of the law is that Internet services are allegedly biased against conservatives, which is the main reason why the bill is ultimately censorial," he says. "If an Internet service wants to be biased against conservatives, the Constitution allows them to do that."
A recent analysis, however, claims social media platforms aren't likely to show bias. Published in September by researchers Wen Chen, Diogo Pacheco, Kai-Cheng Yang and Filippo Menczer, a study titled "Neutral bots probe political bias on social media" found no evidence of bias by Twitter and instead found that political bias comes from individual users.
"Our main finding — that the information Twitter users see in their news feed depends strongly on the political leaning of their early connections — has important societal implications," the study team writes. "The absence of strong or consistent evidence of political bias in the Twitter news feed could help inform the public debate about social media platform regulation, and claims that platforms censor political speech."
A similar social media censorship law introduced by Florida Governor Ron DeSantis in January was quickly struck down in federal court, and Goldman anticipates the same fate for Texas' new legislation, adding the law was not designed to survive judiciary scrutiny.
"Bills like this are not designed to make good law," he said. "They are designed to send a message to those who want to tear down the fabric of our country that the legislature is working on it."
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