Texas' Unconstitutional Social Media Censorship Bill Challenged In Court, Just As Texas Joins The Legal Fight For Florida's Unconstitutional Social Media Bill

from the florida-and-texas;-what-a-pair dept

Texas and Florida. Florida and Texas. Two states with governors who have decided that culture warrioring and “owning the libs” is way more important than the Constitution they swore to protect and uphold. As you’ll recall, last month Texas Governor Greg Abbott decided to use the internet services he hates to livestream his signing of the clearly unconstitutional HB20 that seeks to block social media sites from moderating how they see fit.

As we had pointed out, Florida had beaten Texas to the punch on that and a court had already tossed out the bill as an unconstitutional infringement of 1st Amendment rights. Now a state that was looking to actually do things correctly would maybe see that and recognize that maybe it’s not worth wasting millions of taxpayer dollars to do the exact same thing, but Texas went ahead.

And, now, the same two organizations that sued to strike down Florida’s law, NetChoice and CCIA, have similarly sued to strike down Texas’ law.

At bottom,
H.B. 20 imposes impermissible content- and viewpoint-based classifications to compel a select
few platforms to publish speech and speakers that violate the platforms’ policies—and to present
that speech the same way the platforms present other speech that does not violate their policies.
Furthermore, H.B. 20 prohibits the platforms from engaging in their own expression to label or
comment on the expression they are now compelled to disseminate. And in light of the statute’s
vague operating provisions, every single editorial and operational choice platforms make could
subject those companies to myriad lawsuits.

These restrictions—by striking at the heart of protected expression and editorial
judgment—will prohibit platforms from taking action to protect themselves, their users,
advertisers, and the public more generally from harmful and objectionable matter. At a minimum,
H.B. 20 would unconstitutionally require platforms like YouTube and Facebook to disseminate,
for example, pro-Nazi speech, terrorist propaganda, foreign government disinformation, and
medical misinformation. In fact, legislators rejected amendments that would explicitly allow
platforms to exclude vaccine misinformation, terrorist content, and Holocaust denial.

Additional H.B. 20 provisions will work to chill the exercise of platforms’ First
Amendment rights to exercise their own editorial discretion and to be free from state-compelled
speech. H.B. 20 will impose operational mandates and disclosure requirements designed to
prescriptively manage—and therefore interfere with and chill—platforms’ exercise of editorial
discretion. In a series of intrusive provisions, H.B. 20 requires “social media platforms” to publish
how they intend to exercise their discretion, document in excruciating detail how they exercise
their editorial discretion over potentially billions of pieces of content, and operate inherently
burdensome and unworkable individualized complaint mechanisms—all of which together work
to compel or otherwise challenge the platforms’ countless daily uses of editorial discretion.

Notably, the lawsuit does not challenge the email filter provisions in the law, which effectively means that on December 2nd, if no one else tries to stop it, spam filters may be in violation of Texas’ law. As Prof. Eric Goldman has noted, any spammer whose email is caught in a spam filter will then be able to sue the filter provider and seek statutory damages. Fun stuff!

Meanwhile, also this week, just to show how totally committed Texas Attorney General Ken Paxton is to unconstitutional restrictions on the free exercise of editorial discretion, he also filed an amicus brief in the appeal of the Florida ruling. A bunch of other states (Alabama, Alaska, Arizona, Arkansas, Kentucky, Mississippi, Missouri, Montana, and South Carolina) all signed on, but this is a Texas product. Also, it’s hot garbage. It insists that these bills don’t regulate speech — when they very, very clearly do.

But the district court’s First Amendment analysis is riddled
with errors. It veered off course from the outset by concluding that S.B. 7072 regulates speech, when that law instead regulates conduct that is unprotected by the First
Amendment: social media platforms’ arbitrary application of their content moderation policies.

I mean, what? Of course, content moderation policies are protected by the 1st Amendment. It’s basic editorial discretion.

The entire amicus brief tries to claim that editorial discretion is “conduct” and not speech — and that would upend basically all 1st Amendment precedent. And if Texas actually got its way with this, then that would enable the government to regulate who could appear on Fox News and other media organizations, claiming that those demands are “conduct, not speech.”

Nothing in S.B. 7072’s neutrality and disclosure provisions regulates the speech
of Plaintiffs or the members of their trade associations—they “neither limit[] what
[Plaintiffs or their members] may say nor require[] them to say anything.” FAIR,
547 U.S. at 60. Instead, at most these provisions regulate the conduct of Plaintiffs and
their members: their arbitrary and blunderbuss content-moderation policies

This is… wrong. Requiring them not to moderate certain content (as the Florida bill does for political speech) is absolutely requiring them to associate with speech they may disagree with — and such compelled association is a violation of the 1st Amendment. Did Ken Paxton actually graduate law school without learning this?

Like Florida did in its case, the Texas Amicus brief relies heavily on Rumsfeld v. FAIR. The district court in Florida rightly pointed out that FAIR does not apply here and is easily distinguished:

The Florida statutes now at issue, unlike the state actions
in FAIR and PruneYard, explicitly forbid social media platforms from appending
their own statements to posts by some users. And the statutes compel the platforms
to change their own speech in other respects, including, for example, by dictating
how the platforms may arrange speech on their sites. This is a far greater burden on
the platforms’ own speech than was involved in FAIR or PruneYard.

But, Texas insists otherwise — and now we have to hope that the panel of Judges on the 11th Circuit recognizes the absolute garbage that is Texas’ brief.

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Companies: ccia, netchoice

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Comments on “Texas' Unconstitutional Social Media Censorship Bill Challenged In Court, Just As Texas Joins The Legal Fight For Florida's Unconstitutional Social Media Bill”

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50 Comments
Rico R.says:

There's only one 1st amendment protection Republicans care about

The entire amicus brief tries to claim that editorial discretion is "conduct" and not speech — and that would upend basically all 1st Amendment precedent.

If the first amendment only protects speech, does that mean the government can start regulating religious services? I mean, that’s conduct, not speech! /s

That One Guysays:

Oh look, it's those oft mentioned 'conservative values'...

In fact, legislators rejected amendments that would explicitly allow platforms to exclude vaccine misinformation, terrorist content, and Holocaust denial.

That really needs to be brought front and center any time texas goes on about how ‘conservatives’/republicans are being persecuted on social media, they explicitly made sure to protect pro-terrorism, pro-holocaust denial and anti-vaccine-in-the-middle-of-a-pandemic content when offered the chance to exclude that content from their bill, making crystal clear that that is the sort of content they are trying to ‘protect’ from moderation and consequences.

On a more specific note it’s both hilarious and downright pathetic that they are trying to argue that a bill that directly impacts how speech can be handled doesn’t involve or impact the first amendment rights of platform owners. I mean I know they’re grandstanding liars but come on, surely they could come up with something better than that?

Anonymoussays:

Even if moderation wasn't purely speech...

I won’t stand for this! It is as plain as the shirt on my back that this is a red flag issue. Conduct often is speech.

I should start a leaflet campaign. I could have the volunteers wear matching shirts. The leaflets would be patriotic, and have the American flag on them, and every now and then we’d have the volunteers burn one.

… but y’know? It is amazing how often Texas that is the cause of these Supreme Court precedents defending the first amendment. Maybe they’re looking to keep their record…

Thank you, thank you, I’ll be here all week. Try the veal!

Anonymoussays:

is absolutely requiring them to associate with speech they may disagree with — and such compelled association is a violation of the 1st Amendment. Did Ken Paxton actually graduate law school without learning this?

Yes he did learn that, but now ask how many of the rubes who cheer him on understand the 1st amendment or even give a shit. Anything to "own the libs"

Anonymoussays:

There is no penalty to not upholding the constitution...

That needs to change, failure to uphold your oath should be life changing for the worse. It’s not even a novel concept we do that to our enlisted in the armed forces.

Who knows? Maybe something akin to getting your nuts chopped off or perhaps less tragically and more seriously the removal from your position with a lifetime ban on ever holding any government position, job or even doing business with the government (plus forfeiture of all ill gotten benefits).

Getting caught circumventing that punishment and then we can move on the compassionate sounding "compulsory nuts/ovaries removal".

Seriously until something real bad starts happening to those corrupt politicians that constantly attack the US constitution with laws that shamelessly violate it they will keep pushing through more unconstitutional laws. We should be disabusing ourselves that the stupid prevailing notion that public shame is a deterrent when we see daily proof that politicians never had any shame to begin with!

The painful truthsays:

Abbott is right though.

You corporate bootlickers will gladly tolerate censorship as long as it’s Google doing it and not the government. When Google censors opinions offensive to its investors and advertisers, it’s their right because muh private property. When the government demands everyone be given a fair platform, suddenly you’re all MUH RETHUGLICANS and LITERALLY HITLER.

Thankfully I’m sure the giant corps are on your side and you will never be the target of your own short sightedness… right?

That One Guysays:

Re: Re: There's only one 1st amendment protection Republicans ca

Ah but that’s the fun part though, by their argument the government could for example tell a platform/business ‘no religious speech/only religious speech we like’ and that wouldn’t be a violation of religious expression it would merely be telling the platform/business how they are allowed to treat said speech, something which is totally different because reasons.

Anonymoussays:

Re: There is no penalty to not upholding the constitution...

Sadly even the 2nd Amendment, the last form of defense against this, is practically frowned upon.

Also, the last 2 presidents shot were shot by a Confederate shitheel first (Yes, that popular actor was actually a Confederate supporter), and some crazy Leninist with an actual chip on his shoulder (Lee Harvey Oswald’s story is fascinating.). So yeah, people don’t generally want to shoot these shameless stains in the first place.

I am legally obligated to say that shooting your political leaders is bad okay and if there are better ways to dethrone them, it should be used first.

Anonymoussays:

Re: Re: Re: There is no penalty to not upholding the constitutio

Well, you learn something new every day.

Also to add: McKinley was shot by an anarchist and Garfield by someone whom we would call "one of the corrupt fucks poisoning the system".

Which only adds to "people generally do not like to shoot presidents."

In addition, Lincoln, Garfield, and McKinley were decent presidents, judging by legacies alone. JFK is a shade more controversial, however, though is viewed favorably. So… yeah, people generally do not shoot Presidents, even if some of them fucking deserve it.

Samuel Abramsays:

Re: Re: Re: Re: There is no penalty to not upholding the constit

Though technically, the last president to be shot was Ronald Reagan; he was shot by John Hinckley who claimed he did it to impress Jodie Foster (who at the time did not come out as a lesbian). Jim Brady, who was Ronald Reagan’s press secretary, was also shot and became a gun control advocate due to his experience. Steve Scalise was also shot, but didn’t have a similar conversion, which shows just how fanatical and fucking crazy the GOP has become.

Mike Masnicksays:

Re: Abbott is right though.

Lol wut?

You corporate bootlickers will gladly tolerate censorship as long as it’s Google doing it and not the government.

Who are you even talking about?

When Google censors opinions offensive to its investors and advertisers, it’s their right because muh private property.

It is their right, just as it is our right to criticize them OR TO USE ANOTHER PLATFORM.

When the government demands everyone be given a fair platform, suddenly you’re all MUH RETHUGLICANS and LITERALLY HITLER.

Where have we ever said that?

Thankfully I’m sure the giant corps are on your side and you will never be the target of your own short sightedness… right?

I mean, literally we were demonetized by Google, and have a story coming next week about another company that took down our speech, so, uh, no? But we still recognize the reality of why they should be able to do this.

Maybe because we’re not on any "team" but rather believe in basic rights. You should try it.

bhull242says:

Re: Abbott is right though.

You corporate bootlickers will gladly tolerate censorship as long as it’s Google doing it and not the government.

False. For one thing, this law affects far more than just Google. For another, Techdirt has been critical of Google and other big corporations in the past, including when they actually attempt (or succeed) in censoring someone (though I cannot think of a single instance of Google doing so).

The problem here is that you call moderation “censorship”, and that’s simply not the case.

When Google censors opinions offensive to its investors and advertisers, it’s their right because muh private property.

And also free speech and free association, but yeah, it’s their private property, so they get to decide who can be on their platform. That’s how it works.

And again, they aren’t censoring anyone. They are moderating. Learn the difference.

It’s also worth noting that YouTube rarely removes videos themself except for when copyright is involved. Usually, when it comes to offensive content, they only demonetize, downrank, or add Wikipedia links to the video in question. There may be some exceptions involving nudity or something like that, but that’s it. Similarly, Google usually only downranks results that are “offensive” or anything like that; they remove search results in compliance with the law when ordered (usually involving copyright or defamation), but not content that advertisers and investors dislike. And if the content is still accessible without fear of punishment, it’s not censorship.

When the government demands everyone be given a fair platform, suddenly you’re all MUH RETHUGLICANS and LITERALLY HITLER.

Never compared anyone to Hitler, but when the government forces a private company (or individual or organization) to allow anyone and everyone to use their private platform and to never remove content they find objectionable from their platform except in specific cases, that’s infringing their 1A rights.

These two ideas you object to are fully consistent with each other and a vigorous defense of free speech and the 1A.

Thankfully I’m sure the giant corps are on your side and you will never be the target of your own short sightedness… right?

You… are aware these laws target a lot more than just the giant corporations, right? Like, both Wikipedia and Techdirt are affected by these laws just as much as Facebook or Twitter. Same with any private individual’s blog that allows third-party content (like a comment section) that happens to have enough followers.

But even if it was so narrowly targeted that only giant corporations were affected, that wouldn’t change the fact that the law is unconstitutional. I—and TechDirt and many people who read this site at least semi-regularly—firmly believe that we should object to any unconstitutional law even if we believe it’s a “good” law and regardless of exactly whose rights are violated by that law. If it infringes on someone’s rights, that alone is sufficiently a problem.

Anonymoussays:

Re: Abbott is right though.

So, which opinions are being censored, are they HOLOCAUST DENIAL, VACCINE MISINFORMATION AND TERRORIST PROMOTION?

Because I can read the fucking Communist Manifesto just fine. And old copies of Mein Kampf, and just about every banned book on the Internet, legally, assuming there is a legal digital copy, and more importantly, without the use of a VPN.

In fucking Singapore.

Anonymoussays:

Re: 'I don't know' versus 'I don't care'

Here’s looking at you kid:

The media – both news and entertainment – have now politicized nearly everything in our society as an extremely powerful mechanism of control.

Most humans emotionally connect their personal belief system to the belief system of their political party, and so then any attack on their party – legitimate or otherwise – is interpreted by their brain as an attack on themselves. Reason and logic then jump out the nearest window as raw emotion takes the helm.

This is an extremely damaging and regrettable exploit of human nature. Worse, this exploit is as easy to execute as flipping a light switch for the majority of the population.

Here are two essential articles detailing how politicians hack our brains with fear as a means of political control:

http://libertymcg.com/2013/07/23/this-is-your-brain-on-terrorism/

https://www.serendipity.li/agamben-biosecurity-and-politics.htm

That One Guysays:

Wherein 'fair' means 'tilted entirely in my favor'

Th ‘problem’ that certain people/groups are facing is that they are being given a ‘fair’ platform when that’s not what they are actually after, rather what they want is one where the rules of that platform(or any other) don’t apply to them and their words and actions are consequence-free. ‘Don’t be an asshole’ is a fair rule, it’s not the fault of the platforms that it impacts some people/groups more than others.

Anonymoussays:

Re: Re: Re: 'I don't know' versus 'I don't care'

Conspiracy?? You don’t fall into this category do you bhull242?
—————-
Many people I encounter are so brainwashed by media that they can’t see two inches in front of their noses, and if you ever challenge them on the propaganda they find there, like Pavlov’s dog they will call you a conspiracy theorist. They will then turn up their nose and walk away with a heightened sense of superiority.

The term "conspiracy theory" is remarkably adept at turning off all critical thinking like a light switch in a large portion of the people I have personally met…

Conditioning the public to react this way has to have been one of the most effective PSYOP’s ever pushed onto the general population.

It is equal parts diabolic and brilliant.

————-
Certainly an intelligent man like yourself is smart enough to understand that conspiracy by powerful men are quite real:

“ For we are opposed around the world by a monolithic and ruthless conspiracy that relies primarily on covert means for expanding its sphere of influence — on infiltration instead of invasion, on subversion instead of elections, on intimidation instead of free choice, on guerrillas by night instead of armies by day”
-JFK

bhull242says:

Re: Re: Re: Re: 'I don't know' versus 'I don't care'

You didn’t respond to my main point, which was asking why this is relevant to the discussion. I see no need to address the plausibility or factuality of the claims if they aren’t relevant.

This is particularly the case when one of the claims gives off a conspiracy-theory sort of vibe. I don’t want to touch any claims of a conspiracy if I don’t have to, and if it’s not relevant, then I don’t have to, so I won’t.

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