“The decision in NetChoice v. Paxton reinstates an unconstitutional Texas law that seizes control of the major social media platforms’ content moderation process, requiring them to either carry content that those platforms do not wish to publish or be so restrictive it would render the platforms unusable. This law is unconstitutional because the First Amendment prohibits the government from ordering private companies or individuals to publish speech that they do not wish to be associated with.”
“Although the court did not identify which of the three judges dissented, it’s not hard to guess how the votes broke down. The panel includes Judge Leslie Southwick, a relatively moderate conservative appointed by President George W. Bush, as well as two notoriously right-wing judges.
Judge Edith Jones is a former general counsel to the Republican Party of Texas who was appointed by President Ronald Reagan when she was just 35 years old. Since then, she’s developed a reputation as an especially caustic conservative — Jones once told a liberal colleague to “shut up” during a court hearing, and she joined an opinion arguing that a man should be executed despite the fact that his lawyer slept through much of his trial.
The third judge, Andy Oldham, is a young Trump appointee who clerked for Justice Samuel Alito. Among other things, Oldham is the author of a Fifth Circuit opinion permitting a Trump-appointed district judge to seize control of much of the nation’s policy governing the US-Mexico border.
It is likely, but not entirely certain, that Jones and Oldham are right-wing outliers even when compared to the median justice on the Supreme Court. In 2021, Justice Clarence Thomas published an opinion expressing sympathy for the “common carrier” theory Texas relies on in NetChoice. But that opinion was joined by no other justice.
In any event, given the enormous disruption the Fifth Circuit’s NetChoice decision is likely to create for social media companies, it is likely that they will ask the Supreme Court to intervene very soon. We should know in very short order, in other words, whether the Supreme Court intends to write social media out of the First Amendment.”
“A blatantly unconstitutional Texas social media law can start being enforced unless the Supreme Court steps in. The law was blocked by a U.S. district court last year after internet advocacy and trade groups challenged it. But a new order from the U.S. Court of Appeals for the 5th Circuit means Texas can begin enforcement of its social media law—and wreak havoc on the internet as we know it in the process.
NetChoice and the Computer and Communications Industry Association (CCIA)—the groups that filed the lawsuit against the Texas social media law—have now submitted an emergency petition to the Supreme Court asking it to intervene. Meanwhile, Texas and a slew of other states with Republican leaders are advocating for the law, which would treat large social media platforms like common carriers (such as railroads and telephone companies) that have a legal obligation to serve everyone.
How we got here: The Texas social media law (H.B. 20) bans large platforms from engaging in many forms of content moderation—including rejecting unwanted content outright, limiting its reach, or attaching disclaimers to it—based on the viewpoint said content conveys. It’s similar to legislation passed (and blocked, for now) in Florida.
Borrowing a page from George Orwell, supporters like Texas Gov. Greg Abbott say the law is designed to protect free speech. But in addition to protecting people and private entities from censorship, the First Amendment also protects against them being compelled by the government to speak or host certain messages—which is exactly what H.B. 20 does.
Accordingly, Judge Robert Pitman of the U.S. District Court for the Western District of Texas held last December that H.B. 20 violated the First Amendment and issued a preliminary injunction against enforcing it.
But Texas appealed, and last week the U.S. Court of Appeals for the 5th Circuit issued a stay on the lower court’s decision—meaning Texas can start immediately enforcing the social media law.
The 5th Circuit did not offer an opinion explaining its reasoning, so it’s hard to say what’s going on there. In any event, NetChoice and the CCIA are now asking the U.S. Supreme Court to step in.”
“Twitter is, in many ways, a platform of the elite. While it can sometimes elevate the voices of ordinary people who don’t command massive followings on the platform, it’s most powerful as a communication tool for already prominent and influential people.
Though it has about 200 million daily users, Twitter has had an outsized role in shaping politics, particularly in the US as the former platform of choice for Trump until the end of his presidency, when he was permanently suspended for tweeting in support of the January 6 Capitol riot.”
“Twitter is distinct from Facebook and Google in that the financial markets don’t truly reflect its full power, which is why Musk can entertain the idea of buying the entire company with a fraction of his total estimated net worth of over $220 billion.”
“In its new era, Twitter has begun balancing its commitment to letting people say what they want and minimizing the harms that people can do using its platform. For Musk, there’s value in being the person who sets those terms, and he has made it clear that he will err on the side of allowing as much controversial speech as possible.”
“It’s been over a year since Facebook, Twitter, and YouTube banned an array of domestic extremist networks, including QAnon, boogaloo, and Oath Keepers, that had flourished on their platforms leading up to the January 6, 2021, Capitol riot. Around the same time, these companies also banned President Donald Trump, who was accused of amplifying these groups and their calls for violence.
So did the “Great Deplatforming” work? There is growing evidence that deplatforming these groups did limit their presence and influence online, though it’s still hard to determine exactly how it has impacted their offline activities and membership.
While extremist groups have dispersed to alternative platforms like Telegram, Parler, and Gab, they have had a harder time growing their online numbers at the same rate as when they were on the more mainstream social media apps, several researchers who study extremism told Recode. Although the overall effects of deplatforming are far-reaching and difficult to measure in full, several academic studies about the phenomenon over the past few years, as well as data compiled by media intelligence firm Zignal Labs for Recode, support some of these experts’ observations.
“The broad reach of these groups has really diminished,” said Rebekah Tromble, director of the Institute for Data, Democracy, and Politics at George Washington University. “Yes, they still operate on alternative platforms … but in the first layer of assessment that we might do, it’s the mainstream platforms that matter most.” That’s because extremists can reach more people on these popular platforms; in addition to recruiting new members, they can influence mainstream discussions and narratives in a way they can’t on more niche alternative platforms.”
“”Social media has become a significant source of information for U.S. law enforcement and intelligence agencies,” the Brennan Center for Justice at NYU Law noted in a report released last week. “The Department of Homeland Security, the FBI, and the State Department are among the many federal agencies that routinely monitor social platforms, for purposes ranging from conducting investigations to identifying threats to screening travelers and immigrants.””
“Photos of beheadings, extremist propaganda and violent hate speech related to Islamic State and the Taliban were shared for months within Facebook groups over the past year despite the social networking giant’s claims it had increased efforts to remove such content.
The posts — some tagged as “insightful” and “engaging” via new Facebook tools to promote community interactions — championed the Islamic extremists’ violence in Iraq and Afghanistan, including videos of suicide bombings and calls to attack rivals across the region and in the West, according to a review of social media activity between April and December. At least one of the groups contained more than 100,000 members.
In several Facebook groups, competing Sunni and Shia militia trolled each other by posting pornographic images and other obscene photos into rival groups in the hope Facebook would remove those communities.
In others, Islamic State supporters openly shared links to websites with reams of online terrorist propaganda, while pro-Taliban Facebook users posted regular updates about how the group took over Afghanistan during much of 2021”
“Facebook said it had invested heavily in artificial intelligence tools to automatically remove extremist content and hate speech in more than 50 languages. Since early 2021, the company told POLITICO it had added more Pashto and Dari speakers — the main languages spoken in Afghanistan — but declined to provide numbers of the staffing increases.
Yet the scores of Islamic State and Taliban content still on the platform show those efforts have failed to stop extremists from exploiting the platform.”
“Texas Gov. Greg Abbott, who..signed a bill that aims to restrict social media platforms’ editorial discretion, says the new law “protects Texans from wrongful censorship” and thereby upholds their “first amendment rights.” The law, H.B. 20, is scheduled to take effect on December 2, but that probably will not happen, because it is blatantly unconstitutional and inconsistent with federal law.
Abbott, a former Texas Supreme Court justice who served as his state’s attorney general from 2002 to 2015, presumably knows that. But whether he is sincerely mistaken or cynically catering to his party’s base, H.B. 20 reflects widespread confusion among conservatives about what the First Amendment requires and allows.”
“the First Amendment applies to the government and imposes no constraints on private parties.
To the contrary, the First Amendment guarantees a private publisher’s right to exercise editorial discretion. The Supreme Court emphasized that point in a 1974 case involving a political candidate’s demand that The Miami Herald publish his responses to editorials that criticized him.
The constitutional protection against compelled publication does not disappear when we move from print to the internet, or from a news outlet to a website that invites users to post their own opinions. As Justice Brett Kavanaugh noted when he was a judge on the U.S. Court of Appeals for the D.C. Circuit, “the Government may not…tell Twitter or YouTube what videos to post” or “tell Facebook or Google what content to favor.”
Yet that is what H.B. 20 purports to do. The law says “social media platforms” with more than 50 million active monthly users in the U.S. may not “censor” content based on the “viewpoint” it expresses. That edict covers any effort to “block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression.”
H.B. 20 makes a few exceptions, including “expression that directly incites criminal activity” and “specific threats of violence” that target people based on their membership in certain protected categories. But otherwise the rule’s reach is vast: As two trade organizations note in a federal lawsuit they filed last week, 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 response to Australian court decisions holding media companies legally liable for the comments by users, CNN has blocked access to some of its Facebook pages from users in that country.
This is an inevitable outcome of a bad decision and a reminder of why it’s important not to try to force government-mandated moderation policies onto massive social media platforms that will inevitably lead to either censorship or lack of access to information.”