5th Circuit Court Reinstates Texas Law to Protect Conservatives From Social Media "Censorship"

[Cartmann99]

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Spoiler

 

This thread from earlier in the week will make you bang your head on your desk and weep.

Unrolled version is here.

[WiseGirl]

WTF is happening in the U. S. people? Dear Rufus please let Canada adopt my state.  Forget little things like the other states I have to go through to get to Canada.

Mexico take back Texas please.

[Xan]

6 hours ago, WiseGirl said:

WTF is happening in the U. S. people? Dear Rufus please let Canada adopt my state.  Forget little things like the other states I have to go through to get to Canada.

Mexico take back Texas please.

I've said it before and I'll say it again:  I'm totally ready for our alien overlords to land their saucers and reclaim the entire planet.  

[AlmostSavedAtTacoBell]

2 hours ago, Xan said:

I've said it before and I'll say it again:  I'm totally ready for our alien overlords to land their saucers and reclaim the entire planet.  

Hey, as long as Other Derek shows up (but not in the form of Derek Gilbert because yeesh) with the Gargs I'm in.  They sound like they're always down to party and get us to use our free will for sexy times. 

[Cartmann99]

The 5th Circuit’s Reinstatement of Texas’ Internet Censorship Law Could Break Social Media

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On Wednesday, without a word of explanation, the nation’s most radical appeals court reinstated a Texas law that imposes sweeping censorship on social media companies. The statute—which Republicans passed in retaliation against the perceived liberal bias of “Big Tech”—forces these companies to disseminate hateful expression, dangerous misinformation, and foreign propaganda, among other objectionable speech. It empowers aggrieved users to file an unending stream of lawsuits to combat content moderation while creating a slew of onerous regulations that are literally impossible to comply with. Texas’ statute is, in short, an egregious affront to corporations’ First Amendment rights.

Texas Republicans passed their internet censorship bill, known as H.B. 20, in the fall of 2021. Its sponsors said that the legislation was necessary to prevent “West Coast oligarchs” from silencing “conservative viewpoints and ideas.” (Their theory that social media companies discriminate against conservative speech has no evident basis in reality.) The bill applies to social media companies with “more than 50 million active users” in the U.S. each month, like Twitter, YouTube, and Meta, that operate in Texas. (Republicans rejected a proposal that would’ve broadened its application to smaller conservative platforms like Parler and Gab.) It states that these companies may not “censor” a user’s expression on the basis of their “viewpoint,” whether that “viewpoint” is expressed on the company’s platform or somewhere else. If a platform removes a user’s content, it must provide them with notice and an opportunity to appeal. Alleged victims of “viewpoint discrimination” can also file suit against social media companies, as can the Texas attorney general.

H.B. 20 doesn’t stop there. The law also bars social media companies from labeling posts on their own websites—with, for instance, a warning that they contain violence, vulgarity, or disinformation. It obligates companies to turn over a massive amount of information to the state about their algorithms, curation, and account suspension. And one baffling provision sharply restricts email service providers’ ability to block spam, allowing users to collect $25,000 for each day that their provider impedes “the transmission of an unsolicited or commercial electronic mail message.”

What would the internet look like in Texas if corporations implemented these policies? In addition to a sudden surge of spam in Texans’ inboxes, social media would become unusable. Major platforms would be inundated with hate: YouTube could not remove videos by neo-Nazis and Klansmen promoting racism; Twitter could not take down ISIS fighters’ terrorist advocacy; Facebook could not limit Russian propaganda against Ukraine. These platforms could not even express their own disapproval of this content or demote it in users’ feeds. As a rule, they could suppress only illegal incitement or other “unlawful” speech. But just a small subset of hateful or violent expression falls outside the scope of the First Amendment: Even speech meant to promote illegal conduct, including some forms of intimidation, receives constitutional protection. So H.B. 20 would forbid platforms from removing, demoting, or condemning all but the most extreme, graphic, and threatening speech. Even then, each instance of content moderation might subject companies to a lawsuit, incentivizing a totally hands-off approach.

Other aspects of the law all but compel companies to cease editorial control over their own products. The intrusive disclosure requirements are almost comically impractical: They oblige companies to give Texas heaps of information about their algorithms, curation, and search functions, as well as a “biannual transparency report” with information about every single “action” taken against “content.” (These provisions are a far cry from the good-faith movement to mandate algorithmic transparency, which would not chill any speech but rather require developers to provide algorithmic impact assessments.) Platforms must also establish a complex process of notice and appeal any time it “removes content.”

It would be impossible for any target of H.B. 20 to comply with these standards. Platforms like Facebook use automated editorial tools to remove billions of posts and comments every year. They lack the resources, by orders to magnitude, to review and resolve each appeal, especially not within the 14-day limit that H.B. 20 provides. The only solution would be to stop monitoring content. Yet the law forces companies to assess complaints of “illegal content” within 48 hours, so they cannot adopt a true laissez-faire policy either.

The only way out of this mess, then, would be for social media companies to cease all operations in Texas. But H.B. 20 orders them to continue providing their services in Texas. So there is truly no escape—except the courts.

Luckily for social media platforms, constitutional law is entirely on their side. The Supreme Court has long held that corporations have full First Amendment rights, most famously in Citizens United. Those rights include editorial discretion over the speech they disseminate to their customers. This “editorial control and judgment” over speech—what to retain, what to remove—is, itself, a form of speech shielded by the Constitution, even when it discriminates against a specific group. As Justice Brett Kavanaugh put it while serving on the U.S. Court of Appeals, the government cannot “tell Twitter or YouTube what videos to post” or “tell Facebook or Google what content to favor.” Nor can the government force corporations to disclose information, particularly on controversial topics, in an “unjustified or unduly burdensome” manner.

H.B. 20 runs afoul of all these principles. The law brazenly interferes with platforms’ editorial judgment, chills their own speech, and saddles them with wildly burdensome and impracticable disclosure rules. That’s why U.S. District Judge Robert Pitman blocked it in December, before it took effect. Pitman swatted down Texas’ one real defense of H.B. 20: that social media platforms are “common carriers,” like telephone companies and postal services, that “merely facilitate the transmission of speech of others.” The Supreme Court has authorized much greater regulation of common carriers because they do not engage in expression themselves (and often hold monopoly power). Texas thinks social media companies fall into this category, stripping them of First Amendment rights. Verizon can’t drop your call if you praise the KKK, the state argued, so why should Twitter be able to?

The answer, Pitman explained, is simple. Verizon doesn’t exercise any editorial control over calls made on its network. Twitter, YouTube, and Facebook do. These corporations “are not engaged in indiscriminate, neutral transmission of any and all users’ speech” like a common carrier. Rather, they “curate both users and content to convey a message about the type of community the platform seeks to foster.” So the First Amendment applies with full force, and Texas’ law cannot stand.

Pitman’s decision largely tracks U.S. District Judge Robert Hinkle’s ruling last year against Florida’s internet censorship bill, which is similar to Texas’. (Hinkle also pointed out that attempts to penalize content moderation clash with Section 230, a federal law that limits platforms’ liability over content that they host.) Taken together, the two decisions meticulously chart the legal defects of Republicans’ heavy-handed interference with social media. But when Texas appealed to the 5th U.S. Circuit Court of Appeals, it got a much friendlier reception. The state had the good fortune of coming before a three-judge panel featuring two of the most extreme and partisan jurists in the country: Edith Jones, a Ronald Reagan nominee, and Andrew Oldham, a Donald Trump nominee. (The third judge, Leslie H. Southwick, is a George W. Bush nominee who counts as a liberal on the far-right 5th Circuit.)

Even on this frequently lawless court, Jones and Oldham stand out for their loyalty to Trumpism over any known law. During oral arguments on Monday, the two judges made scathing remarks about Twitter’s content moderation, reflecting a thinly veiled disgust toward the platform that famously banned the former president. They continually elided the distinction between true common carriers and regular corporations with their own free speech rights. And, on Wednesday, these two judges lifted Pitman’s injunction, allowing H.B. 20 to take effect. They were in such a rush to do so that they did not bother explaining their decision, instead indicating that they’d publish a written opinion down the road.

What now? Presumably, the plaintiffs will appeal to the Supreme Court, pleading for relief on the shadow docket. The justices will be asked, yet again, to rein in an out-of-control 5th Circuit. If they do not oblige, the nation’s major social media companies will soon be hobbled by a stringent new legal regime with which they cannot begin to comply. No one really knows what will happen when a single state asserts the power to censor broad swaths of the web and courts lack the courage to stop it. If SCOTUS does not put a stop to this madness, we will all find out soon enough.

 

[Cartmann99]

Spoiler

 

[Ozlsn]

On 5/14/2022 at 5:32 AM, Cartmann99 said:

The only way out of this mess, then, would be for social media companies to cease all operations in Texas. But H.B. 20 orders them to continue providing their services in Texas. So there is truly no escape—except the courts.

Lol, "you must continue providing services in Texas" - or what, exactly? I don't think they have the authority to order a private company to do that. Of course they can always just block all Texan ISP addresses and modify all other content, if you use a VPN then you don't fall under the Texan law and are modified accordingly. If I were the companies I'd start by removing all Texan content, or (if possible) preventing it from being seen outside Texas.

There is no law, only power is disturbingly true.

[Cartmann99]

Supreme Court blocks Texas social media law that tech companies warned would allow hateful content to run rampant

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The Supreme Court on Tuesday blocked a controversial Texas social media law from taking effect, after the tech industry and other opponents warned it could allow for hateful content to run rampant online.

The decision does not rule on the merits of the law, known as HB20, but reimposes an injunction blocking it from taking effect while federal courts decide whether it can be enforced. The Supreme Court is likely to be asked to take a look at the constitutionality of the law in the future.

Five justices on the court voted to block the law for now. Justice Samuel Alito issued a written dissent from the decision, which was joined by two other conservative justices, Clarence Thomas and Neil Gorsuch. Justice Elena Kagan, a liberal, also voted to allow the law to remain in effect while a challenge to it is pending.

The law prohibits online platforms from moderating or removing content based on viewpoint. It stems from a common charge on the right that major California-based social media platforms like Facebook and Twitter are biased in their moderation strategies and disproportionately quiet conservative voices. The platforms have said they apply their community guidelines evenly and right-leaning users often rank among the highest in engagement.

Two industry groups that represent tech companies including Amazon, Facebook, Google and Twitter, claimed in their emergency application with the court, “HB20 would compel platforms to disseminate all sorts of objectionable viewpoints, such as Russia’s propaganda claiming that its invasion of Ukraine is justified, ISIS propaganda claiming that extremism is warranted, neo-Nazi or KKK screeds denying or supporting the Holocaust, and encouraging children to engage in risky or unhealthy behavior like eating disorders.”

Texas’ attorney general Ken Paxton, a Republican, has said this is not the case, writing in a response to the emergency application that the law does not “prohibit the platforms from removing entire categories of content.”

“So, for example,” the response says, “the platforms can decide to eliminate pornography without violating HB 20 ... The platforms can also ban foreign government speech without violating HB 20, so they are not required to host Russia’s propaganda about Ukraine.”

Alito’s dissent opened by acknowledging the significance of the case for social media companies and for states that would regulate how those companies can control the content on their platforms.

“This application concerns issues of great importance that will plainly merit this Court’s review,” Alito wrote. “Social media platforms have transformed the way people communicate with each other and obtain news. At issue is a ground-breaking Texas law that addresses the power of dominant social media corporations to shape public discussion of the important issues of the day.”

Alito said he would have allowed the law to remain in effect as the case proceeds through federal courts. He emphasized he has “not formed a definitive view on the novel legal questions that arise from Texas’s decision to address the ‘changing social and economic’ conditions it perceives.”

“But precisely because of that, I am not comfortable intervening at this point in the proceedings,” he wrote. “While I can understand the Court’s apparent desire to delay enforcement of HB20 while the appeal is pending, the preliminary injunction entered by the District Court was itself a significant intrusion on state sovereignty, and Texas should not be required to seek preclearance from the federal courts before its laws go into effect.”

Where things stand now

The legislation was passed in September but blocked by a lower court, which granted a preliminary injunction keeping it from going into effect. That changed when a federal appeals court for the Fifth Circuit ruled in mid-May to stay the injunction pending a final decision on the case, meaning the law could be enacted while the court deliberated on the broader case.

That prompted two tech industry groups, NetChoice and the Computer and Communications Industry Association (CCIA), to file an emergency petition with Alito, who is assigned to cases from that district.

NetChoice and CCIA asked the court to keep the law from going into effect, arguing social media companies make editorial decisions about what content to distribute and display, and that the appeals court’s decision would get rid of that discretion and chill speech. It said the court should vacate the stay as the appeals court reviews the important First Amendment issues central to the case.

“Texas’s HB 20 is a constitutional trainwreck — or, as the district court put it, an example of ‘burning the house to roast the pig,’” said Chris Marchese, Counsel at NetChoice, in response to Tuesday’s ruling. “We are relieved that the First Amendment, open internet, and the users who rely on it remain protected from Texas’s unconstitutional overreach.”

“No online platform, website, or newspaper should be directed by government officials to carry certain speech,” said CCIA President Matt Schruer. “This has been a key tenet of our democracy for more than 200 years and the Supreme Court has upheld that.”

The Supreme Court’s decision has implications for other states that may consider legislation similar to that in Texas. Florida’s legislature has already passed a similar social media law, but it has so far been blocked by the courts.

Soon after the tech groups’ emergency appeal in the Texas case, a federal appeals court for the Eleventh Circuit upheld an injunction against a similar law in Florida, unanimously concluding that content moderation is protected by the Constitution. Florida’s attorney general filed an amicus brief on behalf of her state and several others, urging the court to continue to allow the Texas law to be in effect, arguing the industry had misinterpreted the law and that states are within their rights to regulate businesses in this way.

Testing ground for Congress

The state laws serve as an early testing ground for the ways the U.S. Congress is considering reforming the legal liability shield tech platforms have relied on for years to moderate their services. That law, Section 230 of the Communications Decency Act, keeps online platforms from being held responsible for content users post to their services and also gives them the ability to moderate or remove posts in good faith.

The law has come under fire from both Democrats and Republicans, but for different reasons. Democrats seek to reform the law to give tech platforms more responsibility to moderate what they see as dangerous content, including misinformation. While Republicans agree certain types of content like terrorist recruitment or child sexual exploitation material should be removed, many seek to make it harder for platforms to engage in some other forms of moderation that they view as ideological censorship.

One of the authors of Section 230, former Rep. Christopher Cox, R-Calif., filed an amicus brief supporting the industry groups’ plea for the Supreme Court to reverse the stay. In the brief, Cox argues that HB20 “is in irreconcilable conflict” with Section 230, which should preempt the state law.

Still, at least one Justice on the Supreme Court has already expressed interest in reviewing Section 230 itself.

In 2020, Thomas, a conservative, wrote that “in an appropriate case, we should consider whether the text of this increasingly important statute aligns with the current state of immunity enjoyed by Internet platforms.”

Last year, he suggested in a concurrence that online platforms may be “sufficiently akin to common carriers or places of accommodation to be regulated in this manner.”

 

[AmazonGrace]

Can Texas make other such laws? If you're a plumber in California, can you be forced to provide services in Texas?