State Senate: Republican majority
State House: Republican majority
Governor: Greg Abbott (R)
Attorney General: Ken Paxton (R)
Summary:
Once considered the reddest of red states, Texas has inched closer to purple in recent years, although Republicans retain solid control on the state government. Under the leadership of Governor Greg Abbott and Attorney General Ken Paxton, Texas has taken a leading role in opposing censorship efforts from the Biden Administration and social media companies, while passing laws to limit the use of social media by minors and preventing social media companies from deplatforming users for political reasons. Attorney General Paxton is among the most aggressive attorneys general in the country, known for leading multi-state lawsuits against policies of the Obama and Biden administrations and wading into culture war battles. Paxton has sued the Biden administration around 50 times on varying issues.
In 2021, the Texas state legislature passed Texas House Bill 20, a statute to govern content moderation of social media companies with more than 50 million users. After the bill was passed, NetChoice and the Computer & Communications Industry Association (CCIA) sued Paxton in federal court to block its enactment. On December 1, 2021, the US District Court for the Western District of Texas granted a preliminary injunction against enforcement of the law. An Appeals Court and later the Supreme Court, combining Netchoice’s challenge to the similar Florida law, agreed with the lower court’s decision and remanded it for reconsideration.
More recently, Texas has passed laws expanding child pornography laws to include AI-generated material and creating criminal offenses for the use of AI-generated media in political communications without disclosure.
Key Policymakers:
- Rep. Briscoe Cain [R], Rep. Ryan Guillen [R], Rep. Candy Noble [R], Rep. Mihaela Plesa [D], Rep. Richard Hayes [R], and Rep. Morgan Meyer [R]
- Sen. Bryan Hughes, Sen. Joan Huffman [R] and Sen. Royce West [D]
Legislative Activity:
HB 20 (Signed into Law): Limiting Large Social Media Company’s Content Moderation. An anti-deplatforming law enacted on September 9, 2021, this law prohibits large social media platforms with over 50 million users from removing, moderating, or labeling posts made by Texas users based on their “viewpoints”, unless considered illegal under federal law or otherwise falling into exempted categories. It also requires them to make various public disclosures relating to their business practices, including the impact of algorithmic and moderation decisions on the content that is delivered to users. They are defined as any public internet website or application that allows users to “communicate with other users for the primary purpose of posting information, comments, messages, or images”, excluding internet service providers, electronic mail, and services where communication features are “incidental to, directly related to, or dependent on” content that is pre-selected by the operator. The law defines “to censor” as to “block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against” expression. Introduced by Representatives Briscoe Cain, James White, Dustin Burrows, William Metcalf, and Matthew Shaheen in August 2021, this bill moved very quickly and was signed into law by Governor Greg Abbott just a month later. Similar bills were introduced by Reps. Jeff Cason and Bryan Slaton and Sen. Bryan Hughes. The House passed the bill with 78 Republicans supporting and all 39 Democrats opposing, and the Senate along an almost entirely partisan line.
SB 1602 (Signed into Law): Venue and choice of law for certain actions involving censorship by social media platforms. Introduced by Sen. Bryan Hughes, this Republican bill requires that an action brought under Chapter 143A (Discourse on Social Media Platforms) against a social media platform be brought and maintained in a Texas court and establishes statutory damage and injunctive relief levels. A similar House bill was introduced by Rep. Briscoe Cain. It moved quickly and was signed into law on May 29, 2023.
HB 3134: Requiring social media platform operators to identify and notify law enforcement of credible threats of violence published on their platforms; creating a criminal offense. Representative Matthew Shaheen introduced this bill in March 2023 but it did not progress past committee.
HB 2700 (Signed into Law): The bill would clarify the conduct constituting certain criminal offenses prohibiting sexually explicit visual material involving children to include a depiction of a child who is recognizable by certain features as an actual person and whose image as a child younger than 18 years of age was used in creating, adapting, or modifying the visual material. Introduced by Rep. Ryan Guillen [R], Rep. Candy Noble [R], Rep. Mihaela Plesa [D], Rep. Richard Hayes [R], and Sen. Joan Huffman [R] in Feb. 2023, passed both chambers nearly unanimously and signed into law on June 12, 2023.
SB 1158 (2021): Targets the state investment in social media companies rather than trying to regulate the business practices of social media companies. Under this bill, a social media site that censors political speech is added to a list maintained by the attorney general. Once on this list, social media sites are given a certain timeframe in which to cease censoring political speech. If they do not comply, they are then subject to divestment by state governmental entities. A Republican-only bill introduced by Sen. Lois Kolkhorst [R] in March 2021, was voted favorably out of committee on a party-line vote but did not advance further.
SB 5266: Relating to speech protections for student media publications in public schools. Introduced by Rep. Erin Zwiener [D] in Feb. 2023 but did not progress.
SB 751 (Signed into Law) (2019): Relating to the creation of a criminal offense for fabricating a deceptive video with intent to influence the outcome of an election. One of the first bills of this type to be introduced and become law. Introduced by Sen. Bryan Hughes [R], Sen. Royce West [D], and Rep. Morgan Meyer [R] in Feb. 2019, passed both chambers unanimously and signed into law on June 14, 2019.
Legal Actions:
NetChoice v. Paxton. In September 2021, the Texas state legislature passed Texas House Bill 20, a statute to govern content moderation of social media companies with more than 50 million users. After the bill was enacted, NetChoice and the Computer & Communications Industry Association (CCIA) sued Paxton in federal court to block its enactment. On December 1, 2021, the US District Court for the Western District of Texas granted a preliminary injunction against enforcement of the law. The court ruled that the law was unconstitutional because editorial discretion, including content moderation by Internet firms, is protected by the First Amendment. Texas appealed the district court’s injunction, and in May 2022, a panel of the Fifth Circuit Court of Appeals issued an order granting a stay of the injunction and allowing the law to take effect.
Two days after the appeals court issued its stay, NetChoice and CCIA petitioned the Supreme Court to vacate the stay and reinstate the district court’s injunction. The Supreme Court granted their petition on May 31, 2022 by a 5–4 vote. Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch dissented, writing that H.B. 20 was “novel” and that it was not clear how precedent should apply, so therefore the Supreme Court should not intervene. Justice Elena Kagan voted to deny the stay as well but did not explain her decision.
On September 16, 2022, a panel of the Fifth Circuit ruled that the district court erred in issuing its injunction, saying that “[the platforms’] censorship is not speech,” and remanded the case to the district court for further proceedings. The Fifth Circuit’s ruling created a circuit split with the Eleventh Circuit, which, as described above, ruled differently on a district court injunction against the similar statute in Florida.
In September 2023, the Supreme Court agreed to jointly hear Moody v. NetChoice and NetChoice v. Paxton on First Amendment grounds.Oral arguments were heard on February 26, 2024.
Media Matters v. Paxton. In April 2024, a judge preliminarily blocked what Media Matters for America (MMFA) described as AG Paxton’s attempt to “rifle through” confidential documents to prove that MMFA fraudulently manipulated X data to ruin X’s advertising business, as Elon Musk has alleged. After Musk accused MMFA of publishing reports that Musk claimed were designed to scare advertisers off X, Paxton launched his own investigation into MMFA in November 2023.
Suing MMFA over alleged violations of Texas’ Deceptive Trade Practices Act, which prohibits “disparaging the goods, services, or business of another by false or misleading representation of facts”, Paxton sought a wide range of MMFA documents through a civil investigative demand (CID).MMFA FILED a motion to block the CID, arguing that the CID had violated its own First Amendment rights. Paxton had requested Media Matters’ financial records, including “direct and indirect sources of funding for all Media Matters operations involving X research or publications” as well as “internal and external communications” on “Musk’s purchase of X” and X’s current CEO Linda Yaccarino. He also asked for all of Media Matters’ communications with X representatives and advertisers.
US District Judge Amit Mehta wrote in an opinion that these requests were a compelled disclosure that “poses a serious threat to the vitality of the newsgathering process.” According to Mehta’s order, Paxton did not contest that Texas’ lawsuit had chilled MMFA’s speech. Furthermore, Paxton had given at least one podcast interview where he called upon other state attorneys general to join him in investigating MMFA. Because Paxton “projected himself across state lines and asserted a pseudo-national executive authority,” and repeatedly described MMFA as a “radical anti-free speech” or “radical left-wing organization,” the court had seen sufficient “evidence of retaliatory intent.”
Judge Mehta granted MMFA’s request for a preliminary injunction to block Paxton’s CID, ruling that the investigation and the CID have caused MMFA “to self-censor when making research and publication decisions, adversely affected the relationships between editors and reporters, and restricted communications with sources and journalists.” Mehta’s opinion stated that “Only injunctive relief will ‘prevent the [ongoing] deprivation of free speech rights,’” deeming MMFA’s reporting as “core First Amendment activities.” Mehta’s order also banned Paxton from taking any steps to further his investigation until the lawsuit is decided. However, in March 2024, the Missouri Attorney General filed a similar suit against MMFA.