Elon Musk Should Be Shouting About The Florida And Texas Social Media Laws (But Are You Surprised That He’s Not?)
In May 2022 Thierry Breton, at the time a prominent European Commissioner, went to Texas and dropped in on Elon Musk, who was then on his way to buying Twitter. During his visit, Breton did something remarkable: he showed that Elon, whatever his other accomplishments, is a sucker’s sucker. In a video posted on social media, Breton got Musk to say that the European Union’s forthcoming Digital Services Act was “exactly aligned” with his “thinking.”
Once he took the helm at Twitter, Musk’s chaotic style of management was obviously going to clash with the EU’s meddlesome style of governance. And so it proved. After the DSA took effect, the social media platform now known as X was the first company charged with violating it. The European Commission is currently weighing whether to impose what amounts to personal liability on Musk. The fines could total six percent of the annual revenue of Musk’s closely held firms (SpaceX, Neuralink, xAI, and the Boring Company). In a separate spat over the law’s enforcement, Musk told Breton to “fuck your own face.”
All of this is to say that, when it comes to understanding and navigating social media regulations, Elon Musk needs all the help he can get.
If Elon cared to listen, I’d tell him this: He should start talking, loudly and often, about the threat that Florida’s and Texas’s social media laws, SB 7072 and HB 20, pose to X.
Florida’s SB 7072 Texas’s HB 20 were enacted in 2021, and they’ve already been the subject of extensive litigation. They’ve already been to the Supreme Court, in fact, where, last summer, the justices addressed lawsuits challenging the two laws in Moody v. NetChoice. That decision does some very good things. It confirms that the First Amendment protects curated collections of third-party speech. It finds that social media newsfeeds are exactly that sort of protected expressive compilation. And it concludes that “a state may not interfere” with such feeds “to advance its own vision of ideological balance.”
But Moody is not the final word. The justices were reviewing a pair of interlocutory appeals; they were explaining only what was “likely” to happen, in the two cases, on the merits. What’s more, the decision addresses only what social media platforms do “on their main feeds.” Texas and Florida are “not likely to succeed in enforcing” their laws, the Court declared, “against the platforms’ application of their content-moderation policies to the feeds that were the focus of the proceedings below” (emphasis mine). The Court offered no opinion on whether SB 7072 and HB 20 are constitutional as applied to user profiles, direct messaging, group chats, or event functions. Instead, it sent the cases back to their respective trial courts for further fact-finding through discovery.
In a nutshell, SB 7072 and HB 20 require large social media platforms (1) to carry and promote content against their will and (2) to fulfill onerous transparency requirements. Even if the conclusion that they do not govern content moderation on newsfeeds holds (no sure bet—a point to which I shall return), these two laws could cause huge headaches for Musk and X.
Musk styles himself a “free-speech absolutist,” and this might make it seem as though he has little to fear from SB 7072 and HB 20, which seek to expand the amount of content platforms must carry. But Musk treats X less as a free-speech platform than as a personal plaything. When journalists annoy him—as by interviewing the owner of an account that tracked his private jet—Musk has them banned. When material surfaces that embarrasses his friends—as when a reporter posted pictures of Sen. Ted Cruz’s notes for meetings with donors—Musk has it suppressed. Recently, Musk warned that the “Hammer of Justice is coming” for “those who pushed foreign interference hoaxes.” Maybe he did not mean that such “Justice” will be served on X, but that was the fair implication (X is where he posted the comment, after all). It is easy to picture him embarking on a witch hunt, banning the accounts of users he believes, rightly or wrongly, to have “pushed” such “hoaxes.”
HB 20 bars a platform from “censoring” a user based on “viewpoint.” It defines “censor” as “to block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against.” It does not elaborate on what constitutes a “viewpoint.” SB 7072, meanwhile, requires platforms to “apply censorship, deplatforming, and shadow banning standards in a consistent manner.” It does not elaborate on what “consistent” content moderation looks like. SB 7072 also bars a platform from “tak[ing] any action to censor, deplatform, or shadow ban a journalistic enterprise based on the content of its publication or broadcast.” “Journalistic enterprise” is defined broadly to encompass any popular website. A similar but weaker provision protects content “by or about” political candidates.
Neither law can stop a platform from removing unlawful content, and each acknowledges that it cannot impose liability for acts of content moderation protected by Section 230. Because Section 230 protects platforms from liability for most content moderation of lawful content, Section 230 should essentially nullify SB 7072’s and HB 20’s (anti-)content moderation rules. But for rightwing critics of so-called Big Tech censorship, gutting Section 230 is part of the plan. Without strong Section 230 protection, SB 7072 and HB 20 would stretch to cover almost every otherwise lawful content moderation decision platforms make.
Even with Moody in place, in other words, a platform would expose itself to potential liability nearly every time it blocked a post or banned a user (acts Moody, with its focus on newsfeeds, did not address) due to hate speech, disinformation, or other lawful but awful content. Any user whose post or profile was taken down could make a colorable claim to have promoted some “viewpoint” that stands opposed to some other “viewpoint” a platform leaves up. (A user punished for publishing Ted Cruz’s donor notes could claim that the “viewpoint” being discriminated against is a commitment to putting the powerful under a microscope, a belief that money should be removed from politics, a conviction that the GOP is a rotten political party, or a recognition that Ted Cruz is a ridiculous person.) Similarly, any user could concoct a story about why taking her posts or profile down is “inconsistent” with leaving some other user’s posts or profile up. (Platforms make billions of content moderation decisions, many of which are subjective and value-laden. Of course these decisions are not fully “consistent,” even apart from the fact that theoretical “consistency” is impossible to define.) Meanwhile, many accounts would qualify as “journalistic enterprises,” and much content as “by or about” a political candidate, making a host of profiles and posts privileged or virtually untouchable.
Although state actors can enforce SB 7072 and HB 20, let’s indulge for the moment the modest assumption that Florida and Texas will enforce their laws in bad faith, persecuting their perceived Big Tech enemies while leaving X untouched. This wouldn’t get Musk out of the woods. Both laws provide aggrieved users avenues by which to sue. SB 7072 creates a private right of action for violations of the consistency provision. HB 20 creates a private right of action for violations of its content moderation rules “with respect to the user” bringing the suit. This broad framing appears to enable a user in Texas to sue a platform for removing any post the user wants to see.
Even without touching newsfeeds, in short, SB 7072’s and HB 20’s content moderation rules could subject X to swarms of nuisance suits, not to mention drastically curtail Musk’s cherished ability to operate X however he wants.
The transparency provisions of the two statutes differ in their particulars, but their general thrust is the same. Both laws require platforms (1) to set forth in detail the rules and methods by which they moderate content, (2) to adhere to those rules and methods (i.e., what they disclose must be accurate), and (3) to explain in detail decisions to remove—and, for SB 7072, downrank or label—a piece of content. The Supreme Court did not opine in Moody on whether these requirements can constitutionally be applied to newsfeeds.
Making a platform explain in detail its millions of daily content moderation decisions would, the U.S. Court of Appeals for the Eleventh Circuit dryly noted in its opinion on SB 7072, entail “potentially significant implementation costs.” It would also expose platforms “to massive liability.” SB 7072 “provides for up to $100,000 in statutory damages per claim and pegs liability to vague terms like ‘thorough’ and ‘precise.’” A “platform could,” the Eleventh Circuit understood, “be slapped with millions, or even billions, of dollars in statutory damages” for failing, in the eyes of a Florida court, to “provide sufficiently ‘thorough’ explanations” when removing, downranking, or labeling posts.
While Musk might not flinch at the expense of supplying countless detailed explanations for content moderation decisions, he would surely hate having to adhere to X’s terms of service. As the tech writer Alex Hern points out, Musk has tended to treat his platform’s “written rules” as “a polite fiction”—a “fig leaf” over his “capricious whims.” Consider the private jet episode—a good illustration of what, with SB 7072 or HB 20 in place, Musk would not be allowed to do. Musk pledged not to ban the “ElonJet” account that tracked his private flights. Later, though, he did just that, even though the account was not in violation of then-still-Twitter’s written rules. Twitter then changed the rules to ban posts that disclose a person’s “live location” or that contain images or videos of a person without her consent. This new rule was so broad that Musk promptly broke it himself, by posting a picture of a person (a stalker, according to Musk) sitting on his car.
Now imagine that SB 7072 or HB 20 had been in place. The banning of the ElonJet account revealed that the Twitter rules, as they existed before the ban, were incomplete. And there was no way the platform was ever going to engage in more than haphazard enforcement of the location-sharing and depiction-without-consent bans. SB 7072 and HB 20 don’t appear to allow private enforcement of their “follow your own rules” provisions; but if you’re Musk, do you really want the governments of Florida and Texas to have, sitting in their back pockets, a handy tool for making you operate your platform how they want? You never know when you might have a falling out with a cynical and capricious character like Texas attorney general Ken Paxton. To avoid the possibility of large fines, injunctions, and contempt proceedings, Musk would have to obey X’s written rules, and X’s written rules would have to become far more detailed. X would have to undertake what Musk would undoubtedly view as a heinous routinization and bureaucratization of its content moderation process.
The Supreme Court’s protection of content moderation on newsfeeds is likely to hold, but it is by no means guaranteed to hold. Recall that the Court was applying only the “likelihood of success” standard that governs motions for preliminary injunction. The Court further opened the door to a change of result, following discovery, by acknowledging that “the record is incomplete” even as to “the major social-media platforms’ main feeds.” Adding to the uncertainty, Justice Alito, writing for himself and Justices Thomas and Gorsuch, issued a concurrence laden with suggestions for how the lower courts might evade the majority’s ruling.
And if SB 7072 and HB 20 were to sink their teeth into newsfeeds after all, that would be a disaster for Musk. Forced under SB 7072 to act in a “consistent” manner, and forced under HB 20 never to deny “equal access or visibility to,” or “otherwise discriminate against,” content, Musk would have to fundamentally change how he runs X. He could no longer weight X’s algorithm in favor of his political interests (thereby discriminating against Democrats) or himself (thereby discriminating against literally everyone else). His beloved community notes would draw lawsuits, with plaintiffs claiming the notes aren’t consistent or viewpoint neutral. Under SB 7072, X would additionally have to let users opt out of the platform’s recommendation algorithm altogether, leaving Musk unable to continue force-feeding users the posts he wants them to see.
Even if, despite everything, Musk isn’t worried about SB 7072 or HB 20, he still has good reason to oppose them. For if SB 7072 and HB 20 are valid under the First Amendment, other intrusive regulations of social media will be too. New statutes will be sure to pop up. Blue states will enact laws that force X to engage in more content moderation. Some commentators cite Musk as the reason such laws are needed. “There is a liberal/progressive case to be made” for “regulating content moderation,” argues professor Michael Dorf, that stands in part on the fact that “Musk ha[s] bought Twitter, rebranded it X, and turned it into [a] cesspool of misinformation, hate, and stupidity.” If Musk wants to avoid leftwing regulation of his platform, he’d be wise to oppose rightwing regulation of his platform as well.
Suffice it to say that this is not what Musk to this point has done. What he has done instead is resist or accede to state action based on whether he likes the politics of the government in question. X complied with the Indian government’s demand that it take down a documentary critical of rightwing prime minister Narendra Modi; but it defied (at least for a time) a Brazilian Supreme Court justice’s demand that it ban accounts accused of spreading misinformation in support of rightwing former president Jair Bolsonaro. X has sued to block social media regulations enacted by blue California, yet Musk is not voicing opposition to the social media regulations enacted by red Florida and Texas. (X is technically involved in opposing SB 7072 and HB 20 through its membership in NetChoice, one of the trade groups challenging the laws. But my point all along has been that Musk should be tapping his personal clout here.)
As I said at the outset, Musk initially supported the DSA out of ignorance. Maybe ignorance is all that’s keeping him from speaking out against SB 7072 and HB 20. If so, here’s hoping he becomes better informed. But it’s at least as likely that he knows about the Florida and Texas laws, and that he knows they’re dangerous, but that, because his first priority is to play political favorites, he doesn’t care—certainly not enough to do anything. Elon Musk is a lot of things; principled is not one of them.
Corbin K. Barthold is Internet Policy Counsel at TechFreedom.