The fight over when and how internet speech is regulated is one step closer to a date with the Supreme Court, after a federal appeals court upheld a Texas law that would prevent private companies like Facebook, Twitter or Google from taking down or banning posts based on political viewpoint.
Tech companies argue that the Texas statute, the subject of a protracted legal battle, would violate the First Amendment among numerous other issues. The law would fundamentally change how social media platforms function — and expose companies with over 50 million users to lawsuits by the Texas attorney general or individuals over alleged violations. It comes amid ongoing controversy about how social media sites handle misinformation and hate speech, with conservatives alleging the sites’ moderation policies reveal liberal bias.
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In the meantime, the 5th Circuit’s ruling has puzzled many experts in free-speech law. Several who Grid spoke to characterized the ruling as inscrutable and incoherent, given the sheer volume and scope of the legal claims that were made that deviated from or misinterpreted clear precedent. One said it was almost impervious to critical scrutiny because there is so much misinformation, while another called it “mystifying.”
“The 20,000-foot view is that this just takes well-established First Amendment law and turns it flat on its head,” said Ari Cohn, free speech counsel at TechFreedom, a tech policy think tank.
If the appeals court’s reasoning stands, its impacts could extend well beyond tech companies.
First Amendment implications
“Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say,” the judges wrote.
NetChoice and the CCIA have argued that the law would prevent hate speech and extremism from being removed from platforms. They note that the Texas law goes against a century of accepted First Amendment law by denying private actors — in this case, websites or internet companies — a right to express their own editorial judgment and conduct basic services like content moderation.
To put it in simpler terms, the First Amendment protects people from the government curtailing their speech, but there is no such protection from similar action by corporations.
Eric Goldman, co-director of the High Tech Law Institute and a professor of law at Santa Clara University School of Law, said that the opinion inverts basic First Amendment principles. It treats private actors as if they are government actors, subject to constitutional restrictions.
“That inversion undermines everything we know about the law,” said Goldman. “If private actors can be treated like state actors and are bound by constitutional principles, then there’s no division anymore between private sector and government sector … the idea of treating internet services as if they’re bound to follow the First Amendment as opposed to protected by the First Amendment completely flips everything we thought we knew about the Constitution.”
Cohn speculated that the appeals court had a desired outcome in mind and tailored its reasoning accordingly.
“The whole crux of the opinion is that somehow what the platforms are doing when they moderate content isn’t expressive, it’s not speech, just makes so little sense to me,” he said.
The majority decision was written by Judge Andrew Oldham, who was appointed by then-President Donald Trump. Trump’s Twitter ban and Facebook suspension have become a cause célèbre for conservative activists.
In striking down a Florida law similar to the Texas one earlier this year as unconstitutional, 11th Circuit U.S. Court of Appeals Judge Kevin Newsom wrote that social media platforms’ “content-moderation decisions constitute the same sort of editorial judgments” that fall under the First Amendment protections of something like a newspaper.
Goldman said that judges nominated by Trump generally have a distinctive writing and analytical style that stands out compared with judges chosen by other presidents, and that’s demonstrated in the 5th Circuit ruling.
“The Federalist Society Trump appointees will sometimes create these pastiches to the precedent,” he said. “They’ll cut and paste the things that they think are the most helpful for the precedent, even if it’s not the best precedent, and even if it requires them to ignore precedent.”
Going after the white whale: Section 230
The 5th Circuit verdict also tries to separate tech platforms from their First Amendment protections by invoking Section 230 of the Communications Decency Act, which says that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
In doing so, Cohn said, the court seemed to argue that one of the ways we know that the social media platforms decisions over what to publish or what not to publish isn’t speech, and isn’t expressive, is because Section 230 says that they are not the publisher or speaker of user-generated content.
But he said that logic is flawed, based on how Section 230 has been interpreted to date.
“The primary one is Section 230 says ‘shall not be treated as’ — Section 230 is a liability statute that modifies the common law to not impose liability on platforms,” said Cohn. “That has nothing to do with the First Amendment analysis of what is or isn’t expressive or what is or isn’t speech.”
Ryan Calo, a law professor at the University of Washington and co-founder of the Center for an Informed Public, which examines issues around democratic discourse and misinformation, said there is no question that Section 230 immunizes platforms from making editorial decisions in good faith — the opposite of the 5th Circuit’s, and Texas’, stance.
“If you’re trying to clean up your platform of misinformation or toxic language or just incivility or whatever it is you’re trying to do, even if you make a mistake, you’re immunized under Section 230,” said Calo. “So I cannot imagine why Texas believes that it could apply this law consistent with Section 230.”
Calo likened the Texas law to a bookstore choosing to display certain books in its window and attempting to remove it after deciding it is somehow objectionable. Then, as the analogy goes, the state of Texas comes along and tells that book store it can’t pull the book from its window.
While there have been numerous calls to modify or strike down Section 230 from Republicans and Democrats alike, for different reasons, recasting the statute in the manner Texas suggests doesn’t make sense, he said. Nevertheless, “what this Supreme Court will do with [an appeal] is anyone’s guess,” Calo added. It’s hard to overstate just how wide-ranging the implications of letting the Texas law stand would be, said Goldman. But even if the Supreme Court strikes down this particular law, it won’t be the end of the battle.
“If this ruling is correct, it burns down the internet the way that we think about it,” he said. “If it’s not Texas, it will be one of the [other states] that eventually finds the right mix of judges that allows the legislature to take the internet and tear it up.”
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