Late last week, a US court declared social media regulation illegal in Texas. As of now, the verdict will not change. But it set the stage for a Supreme Court decision that could change the Internet. And with that context… it is remarkable bad
The case I am talking about NetChoice v. Ken Paxton, The fight over the legislation, HB 20, we have discussed before. HB 20 prohibits large social networks from removing (or hiding or demonetizing or downranking) content or users based on “viewpoint.” It’s being pitched as an anti-“big tech” censorship bill, but it’s poised to cover many sites beyond your average Facebook or YouTube behemoth. Despite supporters denying this, it would require a radical overhaul of many core services, including an end to bans on hate speech and extremism.
For these reasons, the district court found HB 20 unconstitutional and blocked it. Then, earlier this year, the Fifth Circuit Court of Appeals disagreed. After a hearing in which judges suggested that social networks should be treated like phone companies, the ruling was blocked without an official explanation. Now, the Supreme Court has provided even stronger evidence to set nationwide precedents.
This is a judgment from someone who has no interest in how social networks work
The ruling, handed down on Friday, struck much against internet moderation in general terms. of TechDirt Mike Masnick has already broken down the specifics, but overall, Oldham found that large enough private websites have become public services without a First Amendment right to control what appears on their sites. In Oldham’s explanation, HB 20 is “not chill speech; If anything, it chills censorship. But trying to connect that claim with how social networks actually work isn’t a governing difficulty. In fact, it completely dismisses the real questions that HB 20 poses for any of these platforms.
In one of the strangest parts of the complaint, Oldham scoffed at the idea that violent extremists could use the law as cover, complaining about the platforms’ “obsession with terrorists and Nazis” and that they “bring the most extreme speculative applications. “Act. Oldham also believes that sites “use algorithms to screen out certain obscene and spam-related content,” but “virtually everything else is posted on the platform with zero editorial control or judgment” — a no-brainer in the world. Constantly changing recommendation algorithms.
We are not feeling the effects of this decision now because NetChoice successfully appealed to the Supreme Court and blocked the law while it was playing out in the lower court.
For tech companies, the biggest fear is not that Oldham’s ruling will be enforced as written, but that its arguments will lay the groundwork for a similar ruling from the Supreme Court. Free Press Senior Counsel Nora Benavidez Said on Twitter, Friday’s ruling led to a sharp division between the country’s two highest courts. The Eleventh Circuit Court of Appeals struck down a very similar Florida law last year, almost completely contradicting the Fifth Circuit’s decision. The Supreme Court has already been inclined to take up this question and at this point, it seems absolutely inevitable.
Once it arrives, the results are an open question — or, at least, a lot more legal experts than once expected. Justice Clarence Thomas’ platform has been an active one for the regulation fight, and four justices (including Thomas) voted to uphold the law, though that doesn’t necessarily translate into upholding it.
There are real questions about tech companies and the First Amendment, and this doesn’t touch them
There are real questions about how social media regulation can chill speech. But this ruling isn’t entirely interested in grasping their complexities or admitting they exist — and there’s a real possibility conservatives on the Supreme Court aren’t interested either.
At the center of all this is the legally difficult question of how the First Amendment should apply to social media companies. As Senior Vice President of Public Knowledge As Harold Feld points outAlmost everything social networks do is real related to Speech does not mean that the First Amendment precludes all restrictions. Some courts, such as the Eleventh Circuit, have carefully considered this question and found potential limitations, albeit raising difficulties of their own.
Other states have passed their own legislation, which will likely face more legal challenges. California Governor Gavin Newsom has signed a series of bills that test First Amendment protections for social media, but are motivated by very different concerns than the Texas and Florida laws. And the Ohio court has announced its intent on whether to treat Google as a common carrier. So these problems are not going away.
While the issue deserves real thought, the reality of US politics is that we mostly get rants against the stock villain of “Big Tech,” suggesting that US courts are primarily interested in punishing companies they don’t like.
The current wave of tech companies probably won’t rule forever, and the Supreme Court’s decision — as well as other lower court cases to come — will shape what comes next. Hopefully, they’ll be less flippant than the Fifth Circuit.