HB4087 - Relating to censorship of or certain other interference with digital expression, including expression on social media platforms or through electronic mail messages.

  89R3518 SRA-D     By: Hayes H.B. No. 4087       A BILL TO BE ENTITLED   AN ACT   relating to censorship of or certain other interference with   digital expression, including expression on social media platforms   or through electronic mail messages.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  The legislature finds that:                (1)  although H.B. 20, as passed by the 87th   Legislature, 2nd Called Session, 2021, clearly applies to social   media platforms only in their role as common carriers in   facilitating public forums for public debate, the legislation has   been misunderstood to apply more broadly and therefore requires   clarification;                (2)  an effective state remedy for social media   censorship is essential because:                      (A)  the federal government has massively used the   dominant social media platforms to abridge the freedom of speech;                      (B)  the combination of qualified immunity   impeding damages for past censorship and doctrinal limits on   injunctions against the breadth of future censorship leaves Texans   and other Americans without adequate judicial remedies for federal   censorship;                      (C)  dominant common carriers, especially when   given exaggerated dominance by federal privilege, pressure, and   coordination, must be available to persons of all points of view,   without discrimination; and                      (D)  the public square, which is now mainly on the   Internet and is enabled by the dominant social media platforms,   must be available to persons of all points of view, without   discrimination;                (3)  damages are necessary for violations of H.B. 20   because, even though private enforcement of the legislation has   never been enjoined, the platforms subject to the legislation have   never complied with it;                (4)  the First Amendment to the U.S. Constitution bars   the federal government from "abridging" the freedom of speech or of   the press, not merely coercing or otherwise "prohibiting" it;                (5)  states have a structurally essential role, dating   back to the Sedition Act of 1798, of protecting individuals from   federal censorship; and                (6)  since H.B. 20 was originally enacted:                      (A)  abundant evidence has come to light that the   federal government has massively used dominant social media   platforms to abridge the freedom of speech;                      (B)  it has become clear that common carrier   legislation like H.B. 20 is the only sort of legal mechanism that   can promptly and effectively prevent federal censorship through the   social media platforms; and                      (C)  this state has a compelling and even   existential interest in adopting this law to prevent the federal   threat to the freedom of speech.          SECTION 2.  Section 120.001(1), Business & Commerce Code, is   amended to read as follows:                (1)  "Social media platform" means an Internet website   or application that is open to the public, allows a user to create   an account, and enables users to communicate with other users for   the primary purpose of posting information, comments, messages, or   images.  The term does not include:                      (A)  an Internet service provider as defined by   Section 324.055;                      (B)  electronic mail , including direct messaging   or other electronically conveyed mail ; or                      (C)  an online service, application, or website:                            (i)  that :                                   (a)   consists primarily of news,   sports, entertainment, or other information or content that is not   user generated but is preselected by the provider; or                                   (b)     primarily provides banking,   financial, transportation, sales, or another service that is not a   communications service; and                            (ii)  for which any chat, comments, or   interactive functionality is incidental to, directly related to, or   dependent on the provision of the content or service described by   Subparagraph (i).          SECTION 3.  Section 143A.005, Civil Practice and Remedies   Code, is amended to read as follows:          Sec. 143A.005.  LIMITATION ON EFFECT OF CHAPTER ;   INTERPRETATION OF CHAPTER .   (a)   This chapter does not subject a   social media platform to damages or other legal remedies to the   extent the social media platform is protected from those remedies   under federal law.           (b)     This chapter does not apply to a social media platform's   newsfeed, the platform's own homepage, or any other service that   is:                 (1)     intended to convey a particularized message where   the likelihood is great that such a message would be understood by   the viewer;                 (2)  not a common carrier service;                 (3)     not strongly analogous to a common carrier   service; or                 (4)     not primarily providing transmission of users'   expression.           (c)     Nothing in this chapter may be interpreted to permit a   social media platform to discriminate in the carriage of users'   expression by disseminating the platform's own commentary or   expression in a manner that delays or otherwise diminishes the   visibility of a user's expression, or delays or otherwise denies   equal access to a user's expression, or otherwise censors a user's   expression, on the basis of viewpoint in violation of this chapter.          SECTION 4.  Section 143A.007(b), Civil Practice and Remedies   Code, is amended to read as follows:          (b)  If the user proves that the social media platform   violated this chapter with respect to the user, the user is entitled   to recover:                (1)  declaratory relief under Chapter 37, including   costs and reasonable and necessary attorney's fees under Section   37.009; [ and ]                (2)  injunctive relief ;                 (3)  either:                       (A)  actual damages; or                       (B)     at the election of the user, statutory   damages in the amount of:                             (i)     $100,000 if the user or the user's   expression was censored in violation of Section 143A.002; or                             (ii)     $1,000 if the user's ability to receive   another person's expression was censored in violation of Section   143A.002; and                 (4)  reasonable and necessary attorney's fees .          SECTION 5.  Section 143A.007(b), Civil Practice and Remedies   Code, as amended by this Act, applies only to a cause of action that   accrues on or after the effective date of this Act.  A cause of   action that accrued before the effective date of this Act is   governed by the law as it existed immediately before the effective   date of this Act, and that law is continued in effect for that   purpose.          SECTION 6.  This Act takes effect September 1, 2025.