The chasm between the political discourse at yesterday’s House Committee on Energy and Commerce hearing on social media platforms and the legal decision granting preliminary injunction against Texas’ recent social media law, issued just hours later, could not be wider or deeper.
With a few bright and thoughtful exceptions, the hearing was more of an exercise in venting than anything else, full of misinformation and political grandstanding. Witnesses confused facts with opinions, natural rights with positive rights, and First Amendment protections with First Amendment violations. And the members were even worse: both Democrats’ impulse for more government control of speech and Republicans’ interest in forcing platforms to carry speech against their will should concern every lover of liberty.
Those interested in understanding the legal issues and technical realities of government regulation of online content moderation should skip the hearing and instead read the injunction against the Texas law. The Lone Star regulation met the same fate as a similarly misguided one in Florida; both failed on multiple fronts and have been halted from going into effect.
The Texas decision from U.S. District Judge Robert Pitman is a primer on the problems with efforts from the right, most recently common carrier-type approaches, to regulating platforms. I can only hope yesterday’s Committee members (or their staff) will take the time to read it and more seriously consider their remarks, legislation and votes on the issue going forward.
One could be forgiven for not knowing yesterday’s congressional hearing and yesterday’s court opinion were about the same topic. The disconnect between the political discourse and the constitutional and legal realties is a recipe for policy disaster—or at least for a lot of wasted time and money.