The dispute over when and how to regulate speech online has come one step closer to an appointment with the Supreme Court after a federal appeals court upheld a Texas law that would prevent private companies like Facebook, Twitter or Google from posting on to remove or ban on the basis of political point of view.
Tech companies argue that the Texas law, which is the subject of a lengthy legal battle, would violate the First Amendment, among numerous other issues. The law would fundamentally change how social media platforms work — and expose companies with over 50 million users to lawsuits from the Texas Attorney General or individuals for alleged violations. It comes amid ongoing controversy over how social media sites deal with misinformation and hate speech, with conservatives claiming the sites’ moderation policies expose liberal bias.
“BREAKING: I just won a MASSIVE VICTORY for the Constitution and freedom of speech in federal court,” said Texas Attorney General Ken Paxton wrote on Twitter shortly after the Court of Appeals announced its verdict late Friday. “#BigTech CANNOT censor the political voices of ANY Texan!”
With a likely appeal from tech companies, the Supreme Court could take up the case in a matter of months. But how the nation’s highest court will rule is unclear. His newfound conservative majority has made major swings from established precedents over the past year, particularly on abortion and the limits of federal regulation. The outcome of a Supreme Court ruling on Texas law could have a major impact on the 2024 presidential race and future politics.
Meanwhile, the ruling by the 5th Federal Court has confused many experts on the right to free speech. Several of Grid’s interlocutors called the ruling opaque and incoherent, given the sheer scope and scope of the legal claims made, which 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 is just taking established First Amendment law and turning it flat on its head,” said Ari Cohn, free speech adviser at TechFreedom, a technology policy think tank.
If the appeals court’s reasoning stands, its implications could extend far beyond technology companies.
“After that ruling, theoretically, any state in the 5th Circuit could mandate that news organizations report on certain politicians or certain other content,” wrote Mike Masnick, editor of Techdirt and a close observer of the tech industry. “In theory, it could allow a state to order any news organization to publish opinion pieces by politicians. It totally violates First Amendment rights of association and the right to editorial discretion.”
Impact of the First Amendment
In their ruling, the US Circuit Fifth Circuit judges said the plaintiffs, tech trade groups NetChoice and the Computer and Communications Industry Association (CCIA), sought protection to “suppress free speech.”
“Today we reject the idea that corporations have a free-ranging 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 Texas law violates a century of accepted First Amendment law by denying private actors — in this case, websites or Internet companies — the right to exercise their own editorial judgment and perform basic services like content moderation .
“We strongly disagree with the court’s decision. Forcing private companies to treat all viewpoints equally on their platforms puts foreign propaganda and extremism on an equal footing with decent internet users and puts Americans at risk,” CCIA President Matt Schruers said in a statement.
Put more simply, the First Amendment protects people from the government restricting their speech, but there is no such protection from similar actions by corporations.
Eric Goldman, co-director of the High Tech Law Institute and law professor at Santa Clara University School of Law, said the statement reverses fundamental principles of the First Amendment. It treats private actors like state actors who are subject to constitutional restrictions.
“This reversal undermines everything we know about the law,” Goldman said. “If private actors can be treated like state actors and are bound by constitutional principles, then there is no longer a division between the private sector and the state sector… the idea of treating internet services as if they had to follow the First Amendment instead of being protected The First Amendment turns everything we thought we knew about the Constitution on its head.”
Cohn speculated that the appeals court had a desired outcome in mind and adjusted his reasoning accordingly.
“The key point of the opinion is that what the platforms are doing when they’re moderating content is kind of not expressive, there’s no talk, it just makes so little sense to me,” he said.
All three judges on the 5th Circuit Panel were appointed by then-President Donald Trump – whose Twitter ban and Facebook ban have become a célèbre for conservative activists.
Justice for the 11th Circuit United States Circuit Court of Appeals, Kevin Newsom, wrote that the “decisions to moderate content on the social media platforms constitute the same type of editorial judgments” that fall under the first when he was a Florida law , which was similar to the law in Texas, earlier this year struck down amendment protection of something like a newspaper as unconstitutional.
Goldman said that judges nominated by Trump generally have a distinctive style of writing and analysis that contrasts with judges chosen by other presidents, and that is demonstrated in the 5th Federal Court ruling.
“The Trump appointees at the Federalist Society will sometimes set a precedent for these pastiches,” he said. “They will cut and paste the things they think will be most helpful to the precedent, even if it’s not the best precedent, and even if it requires them to ignore the precedent.”
Hunting the White Whale: Section 230
The 5th federal court ruling also seeks to separate tech platforms from their First Amendment protections by invoking Section 230 of the Communications Decency Act, which states that “no provider or user of an interactive computer service shall act as the publisher or speaker of information provided may be treated by another information content provider.”
In doing so, Cohn said, the court seemed to argue that because Section 230 says that they do, among other things, we know that social media platforms’ decisions about what to publish and what not to publish are non-speech and non-descriptive are not the publisher or spokesperson of any User Generated Content.
But he said the logic was flawed based on how Section 230 had been interpreted so far.
“The most important is Section 230, which says ‘shall not be treated as’ — Section 230 is a liability statute that modifies common law to not impose liability on platforms,” Cohn said. “This has nothing to do with the First Amendment’s analysis of what is or is not expressive or what language is or is not.”
Ryan Calo, a law professor at the University of Washington and co-founder of the Center for an Informed Public, which studies issues surrounding Democratic discourse and misinformation, said there is no question that Section 230 immunizes platforms from making good-faith editorial decisions to hit – the opposite of the attitude of the 5th Circuit and Texas.
“If you’re trying to cleanse your platform of misinformation or toxic language or just plain rudeness or whatever you’re trying to do, even if you make a mistake, you’re immunized under Section 230,” Calo said. “So I can’t imagine why Texas thinks it can apply this law in accordance with Section 230.”
Calo likened Texas law to a bookstore displaying certain books in its window and trying to remove them after deciding it’s somehow objectionable. Then, by analogy, the state of Texas comes along and tells the bookstore they can’t pull the book out their window.
While there have been numerous calls from Republicans and Democrats alike to amend or abolish Section 230, it doesn’t make sense to reshape the law the way Texas is proposing for a variety of reasons, he said. Still, “what this Supreme Court is going to do with it [an appeal] no one can imagine,” added Calo. It’s hard to overstate how far-reaching the impact would be if Texas law were left in place, Goldman said. But even if the Supreme Court overthrows this particular piece of legislation, it won’t be the end of the fight.
“If that verdict is correct, it will burn the internet the way we think about it,” he said. “If it’s not Texas, it’s going to be one of those [other states] That eventually finds the right mix of judges that allows lawmakers to take the internet and tear it apart.”
Thanks to Lillian Barkley for editing this article.