First Amendment

The Texas Social Media Law Is Blatantly Unconstitutional

Government restrictions on private editorial discretion violate the First Amendment.

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Texas Gov. Greg Abbott, who this month 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.

"Too many social media sites silence conservative speech and ideas and trample free speech," Abbott complained in March. A like-minded state senator declared that "Texans must be able to speak without being censored by West Coast oligarchs."

Although the evidence supporting such complaints is disputed, let's assume they are justified. Or let's imagine a social media platform that explicitly caters to the left and bans dissenting posts.

Would that constitute a violation of conservatives' First Amendment rights, as Abbott claims? No, since 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."

Every social media service—including alternative platforms such as Parler and Rumble, which are not covered by the law because they fall below its user threshold—moderates content to some extent. And while there will always be disagreement about the formulation and enforcement of those rules, H.B. 20 replaces private discretion with government dictates.

In addition to the First Amendment, H.B. 20 flouts 47 USC 230, which bars states from imposing civil liability on a website for "any action voluntarily taken in good faith to restrict access to or availability of material" it deems "objectionable, whether or not such material is constitutionally protected." H.B. 20 implicitly acknowledges that barrier, saying it does not authorize "damages or other legal remedies to the extent the social media platform is protected from those remedies under federal law"—a proviso that effectively nullifies its ban on "censorship."

In June, a federal judge issued a preliminary injunction against a similar Florida law after concluding that it probably violated the First Amendment and Section 230. The fact that supporters of H.B. 20 were unfazed by that ruling shows how readily Republicans sacrifice constitutional principles in their culture war against "West Coast oligarchs."

© Copyright 2021 by Creators Syndicate Inc.

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  1. If you want private editorial discretion you don’t get regulations entitling you to special protections, Jacob.

    Stop pretending that special protections are remotely libertarian.

    1. “If you want private editorial discretion…”

      You can stop right there, fascist psychopath. People get that because it’s a basic right guaranteed by the constitution.

      Liability shields and affirmative action for Nazis are policy details.

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      2. Show me where the Constitution enshrines a right to edictorial discretion.

        It’s widely recognized that some forms of editorial discretion void constitutional rights much the same way inappropriate firearms discretion voids the 2A.

        1. as always, it’s in the Ninth Amendment.

          1. Not sure the 9A grants you a Constitutional right to shoot someone any more than the 2A does or the 1A grants you the right to slander someone and void a contract in violation of the terms.

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        2. Tony’s not big on the Constitution or free speech, but remember that everyone else is the fascist. Not him.

      3. Freedom of Speech only applies to the government not private entities.

    2. What special protections are you referring to?

      1. Fascist psychopath MammaryBahnFuhrer can’t or won’t understand the below, about “special protections”…

        Look, I’ll make it pretty simple for simpletons. A prime argument of enemies of Section 230 is, since the government does such a HUGE favor for owners of web sites, by PROTECTING web site owners from being sued (in the courts of Government Almighty) as a “publisher”, then this is an unfair treatment of web site owners! Who SHOULD (lacking “unfair” section 230 provisions) be able to get SUED for the writings of OTHER PEOPLE! And punished by Government Almighty, for disobeying any and all decrees from Government Almighty’s courts, after getting sued!

        In a nutshell: Government Almighty should be able to boss around your uses of your web site, because, after all, Government Almighty is “protecting” you… From Government Almighty!!!

        Wow, just THINK of what we could do with this logic! Government Almighty is “protecting” you from getting sued in matters concerning who you chose to date or marry… In matters concerning what line of work you chose… What you eat and drink… What you read… What you think… Therefore, Government Almighty should be able to boss you around on ALL of these matters, and more! The only limits are the imaginations and power-lusts of politicians!

        1. The great thing about Sqrlsy posts, is that they put paid to Shrike’s arguments that the lefties are the sane ones. If only Hihn was still here to play a duet.

      2. “Protection For ‘Good Samaritan’ Blocking and Screening of Offensive Material”

        1. This one KAR. Were you pretending to be ignorant on purpose.

    3. Exactly.

      Also these fucking retards at reason shod check our countries entire history of case law that defers to individual rights being more sacred and powerful than corporate/business rights.

      1. Maybe you can print some signs and start chanting “Facebook is a human right”

    4. He should stop pretending to be a libertarian.

  2. I’m most upset about the decades of screeching in my ear by these people insisting that what they really want is maximum individual freedom and for the government to leave private parties alone.

    What a waste of my fucking time you perpetrated, assholes. I could have told you 20 years ago when I was a mere cable news suckling that what the right really wanted was cultural domination by any means necessary. That the freedom stuff was such Orwellian bullshit that it came verbatim from the pages of Orwell. But noooo. Let’s just wait around for the actual authoritarian coups to start. Maybe they really mean it.

    I just hope the actual concept of freedom survives the decades-long gang rape it has taken at the hands of Republicans, conservatives, and so-called libertarians.

    1. I feel your pain, loser.

    2. Fuck off leftie shit.

    3. you perpetrated

      I don’t remember perpetrating this. I didn’t even vote for Greg Abbott last fall as I was so disgusted by his anti-freedom COVID-response. I have never been on board with the conservative authoritarians demanding the private spaces of the internet make room for their nonsense.

      More and more I start to understand how Orwell himself must have felt. All you really want is for people to be better to each other (he believed that people would be better if compelled by the state, I believe otherwise) but you can’t get on board with the kooks supposedly taking up your ideology and using it to be horrible to others, and to you.

      1. One should try one’s best not to have an ideology.

        Nobody has figured out the right answer. Human societies are complex, yet human brains crave simple answers.

        1. Religious people are used to accepting simplistic bullshit nonsense answers to profound and difficult questions. Those are the people demanding their preferred answers to questions that are complex. The sooner people finally stop spending a couple hours a week in a pew, practicing subjugating what they know to be true to what their pastor tells them his reading of the Bible says is true, the sooner they will stop applying the same nonsense to political questions. Some human beings have difficulty understanding subtlety and cannot reason well. They are the marks for conmen like Abbot. So many of the current crop of Republican “leaders” are acutely aware that cynically lying to the demitard Talibangelicals is the surest way to retain power. Nuance and gray areas make the morons’ heads hurt. So people like Abbot and Trump just say whatever it is that the demitards want to hear and then fundraise off of it. I don’t see a way out of this. Willful ignorance is hard to convince.

    4. You miss-spelled progressives, socialists, and communists.

    5. But Tony is totes cool with his decades-long gang rape at the hands of Dems, Communists, and leftists.

    6. and we’ll be much more free when the major public square social media companies can silence the opposition party, am I right?

      1. I’m for abolishing these companies and imprisoning their CEOs.

    7. Yes of course……a lefty on this site knows best.
      Inclusion= exclusion of those you disagree with
      Diversity= conformity of thought
      Anti-racism= more racism
      1984 is here now and you are too ideological to notice.
      If freedom does survive it will be because low information people , like you, are not in charge.

  3. Man, Texas is turning into a real shithole.

    1. How dare they protect free speech against censorous asshats. Sorry Charlie, your need to muzzle your opponents to make your positions seem sensible have doesn’t make you correct.

      These are companies that have taken over the public square on the internet much like railroad or oil companies with their company towns and should be treated as such.

      1. Freedom of speech doesn’t mean you have the right to force others, including private companies, to host your speech doing so violates their 1st amendment rights to freedom of speech and freedom of the press. And the government doesn’t have authority to force people to host your speech.

        1. Freedom of speech does not include the government coordinating with big tech to censor opposing views.
          This is what educated people call fascism.

          But you feel the government does have the authority to have tech companies censor your speech when they legally cannot.

          Protect hosting companies from any posts that they leave up, but hold them accountable, by their adherence to their own ,clear posted rules that are enforced equally upon all, for posts they censor. This is the easy answer that preserves everyone’s rights.

  4. State legislatures quite frequntly pass laws they know will be found unconstitutional in the courts. They can always tell their constitents “Don’t blame us, blame those activist judges.””

    1. Bingo!

      But if the attempted laws are of an asshole nature, it still proves the lawmakers to be assholes. They will get away with whatever the courts let them get away with. So do NOT vote for assholes!

      Sad to say, that leaves libertarian politicians (or usually candidates-only), and very few others…

  5. The stolen base in the argument being made here is describing these platforms as publishers.

    A real publisher is fully liable for all the content it publishes; these guys aren’t even liable on the notice-and-takedown basis of a bookstore or newsstand.

    They want the lawsuit immunity regarding transmitted content of a common carrier, they can accept the non-discretion of a common carrier.

    1. You and JeremyR, below, are right.

    2. It’s several stolen bases. The 1A applies to Congress, not all governments everywhere. If a court in TX finds “When SQRLSY One tires of raping babies, he rapes goats. Kill him.” to be a criminal or tort violation, the 1A doesn’t neceesarily protect who ever uttered the phrases, even if it is true.

      1. I’d thought the 1A had been incorporated to state governments as well, though I haven’t checked.

        1. It’s the separation of powers and Federalism shot through The Constitution. I likewise don’t know that all 50 have enshrined the 1A into their respective constitutions or not. I do know that they all designate at least some form of speech as criminal and relegate the decisions and actions based on such to the judiciary and the executive.

          There may be very valid a reason why you can’t say “I’m going to kill the President.” in Washington DC, as long as you can say it in Maryland or Virginia, your rights, arguably, haven’t been unduly or excessively burdened. Much less so by any given State or Federal Government.

    3. Exactly.

  6. If they want to censor, then section 230 should no longer apply to them.

    Once they decide to censor speech, they become responsible for the content they carry

    1. I mean, we could turn the entire Internet into the Reason comment section, where every other post describes how you can make a zillion dollars a month working online because the site can’t/won’t censor them, and the other half are personal attacks. The entire Internet would be a poorer place for it, though.

      There’s a lot of stuff in the gap between “actually illegal” and “nobody wants to see this”.

      1. Is that because you’re too dumb to not read the spam and block the trolls?

      2. But most of the internet is already like that.

        1. Don’t bother, in his world, the government keeps the internet a bastion of intellectual and moral wholesomeness.

          1. As it should, right?

            1. No, the CDA should’ve been stricken down in its entirety. Congress shouldn’t get to designate what constitutes offensive material, even by proxy.

      3. A, this is wholly disingenuous, just like the ‘frivolous lawsuits’ argument
        B, I’d rather have a poorer internet and chaos than a 1984-esque Party control over the brainless masses

    2. You and DRM, above, are right.

    3. Reason has this strange tendency to ignore that Section 230 does not grant unlimited authority to censor without giving up liability protection. They just act like the “good faith” requirement is a dead letter. Unfortunately, so do the courts.

      1. Because this is what the party (I mean their real Party, The Party) wants them to say.

  7. <Or let's imagine a social media platform that explicitly caters to the left and bans dissenting posts

    That shouldn’t be too difficult

    1. See Twitter suppressing New York Post Hunter Biden laptop story, which was suppressed for false reasons.

      1. And yet the New York Post manages to publish that story in… the New York Post! The idea that speech and freedom of the press was being suppressed is ludicrous when the claim is that one outlet isn’t repeating a story from another outlet.

        You guys aren’t complaining that you don’t have an audience, you are complaining that your audience isn’t universal.

        1. And then some people complain when others might hear content that is “undesirable”. Who are the bigger (and more censorship-prone) assholes?

        2. I am complaining that platforms that presented themselves as town halls where everyone could express themselves are increasingly openly partisan and intolerant of dissenting voices.

  8. OPEN QUESTIONS FOR ALL ENEMIES OF SECTION 230

    The day after tomorrow, you get a jury summons. You will be asked to rule in the following case: A poster posted the following to social media: “Government Almighty LOVES US ALL, FAR more than we can EVER know!”

    This attracted protests from liberals, who thought that they may have detected hints of sarcasm, which was hurtful, and invalidated the personhoods of a few Sensitive Souls. It ALSO attracted protests from conservatives, who were miffed that this was a PARTIAL truth only (thereby being at least partially a lie), with the REAL, full TRUTH AND ONLY THE TRUTH being, “Government Almighty of Der TrumpfenFuhrer ONLY, LOVES US ALL, FAR more than we can EVER know! Thou shalt have NO Government Almighty without Der TrumpfenFuhrer, for Our TrumpfenFuhrer is a jealous Government Almighty!”

    Ministry of Truth, and Ministry of Hurt Baby Feelings, officials were consulted. Now there are charges!

    QUESTIONS FOR YOU THE JUROR:

    “Government Almighty LOVES US ALL”, true or false?

    “Government Almighty LOVES US ALL”, hurtful sarcasm or not?

    Will you be utterly delighted to serve on this jury? Keep in mind that OJ Simpson got an 11-month criminal trial! And a 4-month civil trial!

    1. the property owners (the web site owners) should decide!

      “Website owners = property owners” – SQRLSY One

    2. Except it is the Left who are gener as lily concerned with suppressing speech they do not like. Conservatives are currently more concerned with disallowing the suppression of speech they do like. These are not morally equivalent positions.

      1. From above (the article), it seems that Parler and Rumble are somewhat popular conservative places to post. I wonder what would happen to you, as a left-liberal-communist-type poster, if you inundated them with commie-talk? Would you get ban-hammered?

        I have no idea, but it would be interested to try out… But I’m not up to it… Too lazy!

        Well, wait, here’s something…

        https://happymag.tv/parler-free-speech-social-media-banning-users/

        Parler: new conservative ‘free speech’ social media app is banning liberal users

        “happymag” is probably run by lobotomized liberals or lobotomized lizard people, though, so we can NOT trust THEM!

        1. As far as I know, while Parler is welcoming to conservatives, it does not ban content for ideological differences.

        2. Is Parler working in concert with government, spaz boy?

          1. https://happymag.tv/parler-free-speech-social-media-banning-users/

            Parler: new conservative ‘free speech’ social media app is banning liberal users

            You mean Parler is banning liberal posters at the behest of our REAL POTUS, AKA Der TrumpfenFuhrer? Who still reigns Royally, butt in secret? In cahoots with the Amphibian People, perhaps?

            Let me point out to you, that the Amphibian People ARE indeed “benevolent”, per the “R”-Party yardstick (“R” good, all other parties BAD!).

            Let me give you a VERY prominent Amphibian Person with the CORRECT thoughts and attitudes! I give you Pepe the Amphibian Person, stolen-IP-4Chan-Frog! Racist frog, NAZI frog, yaya-yada!
            https://en.wikipedia.org/wiki/Pepe_the_Frog

    3. The day after tomorrow, you get a jury summons.

      I ask my doc to once again write me a note that gets me out of jury duty.

    4. SIMPLER OPEN QUESTIONS FOR ALL PROPONENTS OF SECTION 230

      The day after tomorrow a transcendent communication technology emerges; telepathy. People with implanted telepathic chips (dubbed tPhones) can communicate thoughts, emotions, even life experiences directly with other chipped individuals. Chips are able to be turned off and even filter certain thoughts/emotions/experiences by the individual recipient/users.

      Do you support “Congressional protection tPhone manufacturers for ‘Good Samaritan’ blocking or screening of offensive thoughts/emotions/experiences”?

      Keep in mind that the abstract ‘tPhone’ could accurately encompass everything from telepathy to telephony.

      1. tPhone manufacturers are private korporashunz!
        tPhone manufacturers aren’t responsible for their users’ thoughts!
        We need the FedGov section 8 protections to save us from offensive thoughts!

        1. I forgot: Without FedGov section 8 protections tPhones wouldn’t even exist!

  9. Will Reason ever even acknowledge the federal government unconstitutionally using social media firms to censor disfavored speech?

    1. As soon as they can find a way to blame it on Trump or Republicans. Right now it’s Democrats doing the suppression so they’re just fine with restrictions on free speech.

      1. Surprise! The party that promotes regulation wants to regulate freedom.

    2. ^THIS +10000000000000000000000000000000000000000.
      Texas needs to get thrown under the bus on this B.S. dictation.

      BUT; Democratic Politicians who are using their office of authority to outright CENSOR the sitting president???? Why do they even still have a job??? They should be in prison for treason.

      1. “…CENSOR the sitting president????”

        Is there ANYONE in the USA today, with an internet connection, who would DESPERATELY love to access all of the lies of Der TrumpfenFunhrer and-or of Der BidenFuhrer, and they can NOT find access? Really?

        Smells like a tempest in a teapot to me!

  10. It will hardly be the last unconstitutional law ever passed.

    1. Not to go too gungho, but my reading of the 1A stipulates Congress shall make no law. My reading of the 10A relegates the rest to States. I’m not saying the States should be able to silence speech, but if the Constitution prioritizes who can and can’t shield corporations from liabilities from speech, it’s the States ahead of the FedGov.

      1. Except that good old 14th Amendment that State’s cannot infringe citizens privileges and immunities.

        1. You should note that I described not the 1A, but the 1A of the internet and you said the 14th doesn’t abide it.

          1. Rather more clearly (or not); if Section 230 (congressional protection) is immune to the 1A and the 10A because reasons, it would seem… incongruous that it isn’t exempt from the 14A for the same reasons.

            Unless you were sold on the left-wing racial supremacist (gay and black people’s due process is more important than everyone’s free speech or federalism) ideology I suppose.

  11. Cast aside the legal questions for a moment. Is it healthy for a free thinking society for the major social media platforms to be partisan, and all in one direction, so that dissent from the interests of one political party is suppressed. Indeed, that political party actively calls for the suppression of criticism of it and its positions and scandals by its leadership.

    Is that not a dangerous situation for a political environment based on classical liberal principles?

    1. We do not have that situation. What you see in your feeds tends to be the stuff the algorithm assumes you want to see. If you tend to screech at left wing screeds then you get more left wing screeds in your feed. That’s how it works.

      Now it would be nice if Facebook had a setting for “turn off the algorithm for me”. But the lack of such a button IS NOT a constitutional issue. It’s just not. I can see it on Amazon and Google, however, when I clear my cookies. I see it when I log off and clear my cookies and go back to YouTube.

      > Indeed, that political party actively calls for the suppression of criticism of it

      Indeed, that describes some Republican politicians like Josh Hawley, all butthurt because someone mocked them on Facebook. You think it’s only the the left, but the right plays the same game. Both sides always whining to the government that it’s not fair.

      1. Twitter’s suppression of the New Post’s story on Huntet Biden’s laptop is not attributable to an algorithm. The suppression of discussions about Covid originating as a lab leak is not simply because of algorithm. Try again.

      2. Twitter actively bans Democrats and Liberals who question “the authority” too, so yes we do have that situation.

        1. He also assumes that because Facebook provides no “turn off the algorithm for me” button that it doesn’t exist, no one has tried it, and that FB, Twitter, etc. don’t openly acknowledge slanting the algorithm and taking steps IRL to ensure a slant even if the algorithm weren’t gamed.

    2. It is but from Sullum’s point of view this is perfect.

    3. And cast your concerns aside. Is it healthy for any society to assume that “adults” who indulge in biased information and irrational thinking are capable of making judgements for their own independent lives, let alone for the lives of others?

  12. I don’t think it’s as clear-cut as this article tries to make it out. All the arguments the author raises in support of social media company discretion could be equally applied to letter carriers or phone companies. Yet it’s not unconstitutional that those industries are held to common-carrier status.

    I don’t think this is necessarily a good law and, yes, there are some distinctions between social media and more traditional common carriers but the assertion that this law is “blatantly unconstitutional” is a stretch.

    1. Social media is NOT akin to letter carriers or phone companies. Social media is akin to publishing and the press. When you send a letter or make a phone call, yo are NOT broadcasting it to the entire world. But when you make a social media post it is there for the entire world to see. By posting you are publishing.

      1. Hmm, what about a company that decides to erect bulletin boards with public access? Ostensibly anyone can post what they wish, but the owners deliberately curate the postings. Is that publishing?

        1. No, that’s blatant discrimination.

      2. I’m not sure why you think that’s a relevant distinction to the definition or legal obligations of a common carrier.

        Again, there are reasonable arguments both ways. My point is only that it’s nowhere nearly as clear-cut as the article is trying to make it.

      3. You do realize the USPS photographs all letters, don’t you?
        They also have an intelligence (?) section devoted to scanning social media.
        But not to worry.

      4. But they claim to not be publishers. Publishers like the NYT and CNN and Fox have a certain set of rules they have to follow that social media has fought tooth and nail to not have to do the same.

        I don’t think they can really get away with having it both ways.

        1. And setting the legality aside, the NYT, CNN, and Fox don’t have enough paper or bandwidth to dump every contribution on the air sight unseen.

  13. To the contrary, the First Amendment guarantees a private publisher’s right to exercise editorial discretion

    Then if the platforms are private publishers, they shouldn’t have Section 230 protections! You can’t have it both ways.

    If the publishers are in fact the individual users, not the platform, then the platforms shouldn’t have the right to censor, any more than the phone company doesn’t have the right to block my text messages because they don’t support my politics.

    1. And yet the phone company does have the right to block your text messages and even your phone calls if they determine that you are in violation of various laws about fraud, telemarketing scams, harassment, etc. And no, it doesn’t require a court order before they’re allowed to terminate your service. You are right that they can’t (or at least shouldn’t) block your calls or texts merely because of your political views but they can block on a number of other bases.

      Protecting others from harassment does not automatically make you into a publisher.

      1. That would be like the “good faith” part of 230, wouldn’t it?

        Banning someone for saying that climate change isn’t a threat or that the virus originated in a lab doesn’t meet any of those specific circumstances you mentioned.

      2. So your “both sides” equivocation is unlawful acts on one side and things you don’t like on the other? Seems to fit the marxist progressive viewpoint if nothing else.

        1. If that comment was directed to me, I have no clue what you’re trying to say. My comment is very much not a “both sides” argument.

          To recap, John said that platforms should have no right to censor individual users just like the phone company has no right to block his texts. I replied that the phone company does have a right to block his texts in certain circumstances. My point (which seems to have gone over your head) is that the absolutist position of “no censorship ever” means the platforms also can’t block spam, malware, thread hijacks, etc. A government-enforced ‘no censorship’ rule will make the platforms less innovative and less useful.

          Allowing the platforms to censor may also make them less useful but that would be a self-inflicted wound that we consumers can address by moving to alternatives when the costs of their censorship start to outweigh the benefits.

      3. And yet the phone company does have the right to block your text messages and even your phone calls if they determine that you are in violation of various laws about fraud, telemarketing scams, harassment, etc.

        This is because of the nature of the calls or the calling behavior, not the content (as not-so-cryptically designated by ‘because of my politics’). Nearly the diametric opposite of what FB et al. do. Moreover, unlike the current issue, a local Congresscritter cannot call the phone company and tell them to block all calls from gun rights groups, legally or logistically. On top of all that, that’s without a section 230 for telephones.

        1. “Nature of the call” is necessarily synonymous with the content of the call. I get that you are trying to ban ‘because of my politics’ decisions but there is neither a legal nor practical way to distinguish between unwanted political messages and unwanted economic messages (such as that great business opportunity with the Nigerian princess).

          To your counter-example, you are unfortunately wrong. Your local Congresscritter (and anyone else) can ask the phone company to block your calls for any reason or none. They can’t ask the phone company to block on the basis of the content of the call but they can, for example, legally and logistically implement a block on all calls from phone number ranges associated with NRA offices. That would be morally wrong (in my opinion) but it is both possible and legal today.

  14. Nobody cares, fuck Joe Biden and all social media billionaires.

  15. I bet a lot of Texans will be happy their tax dollars went to fighting this in court instead of fixing their energy infrastructure. Sound use of funds.

    1. Obama already fixed their energy infrastructure – dumb*ss…
      That’s why it works like a broken down useless pile of Democratic Trash.

  16. Before radio, newspapers were partisan, often explicitly so. Thus newspaper names such as “The Daily Democrat”, or “The Evening Republican”. So fine, fine, it was balanced because there were two.

    But what about cities that had only one major newspaper? Does that drown out the voices on the other side? If it does, is that sufficient cause to undo the First Amendment? Must they print EVERY letter to the editor no matter who from? Do they need to be taken over by the government, so that government now prints the official news?

    None of that happened. As far as I know, there wasn’t even any effort to do it. People understood that the First Amendment was supreme when it came to journalism. Maybe they could ban “offensive” novels about adultery, but having only one major newspaper in town wasn’t seen as a constitutional crisis.

    That sort of wrongthink came with radio and television. Both mediums being regulated to provide “fairness”. Hence the “Fairness Doctrine”. It was the Sainted Ronald Reagan who got rid of that. But the excuse for it was the limited airwaves with the government owned and parceled out to corporations it approved (or preferred). Still does by the way.

    But the internet does not have scarcity. The protocol can handle trillions of websites should we ever get to that point. Access is nearly universal with minimal cost. Setting up a new website is dirt cheap. And there certainly is no monopoly. Facebook is big, but it does not curtail the size of Google or Twitter or Amazon or Reddit or Yahoo. Moreover, social media can be seen as a form of publishing. Posting is publishing. Someone creates content and posts it to Facebook, or YouTube, or Snapchat.

    That a platform chooses to limit or block the posts of a user for to following the rules agreed to is fine. It’s not censorship. Bumping Alex Jones off of social media wasn’t a violation of the First Amendment, it was a consquence of him not following the rules. He still has his own website, a fairly popular one on the right side of the nutterverse. He voice is not being squelched, he was merely denied someone else’s bullhorn. Go cry me a river.

    But what about the claim that the algorithms (or execs) are biased? First, if your posts are getting blocked for not passing fact checks, then maybe stop posting fake news. Seriously. Whining that you aren’t able to lie anymore is stupid. But it’s clear that conservative viewpoints are NOT being squelched, they’re all over Twitter and Facebook. The ones getting timed out are the fake news purveyors and and hate speech mongers.

    But regardless, there’s still the First Amendment. You can’t just blithly toss it aside. Posting is publishing speech. And the First Amendment protects both speech and publishing. If you don’t like it go to a different site. You have the right to speak, but you don’t have the right to someone else’s soapbox. Get your own. Stop acting like whiny little leftists.

    1. IMO, it all comes down to people trying to control what others see, or don’t see. Niceties like Constitutional constraint and public vs. private speech are really not as important as exercise of crude power. Far too many Americans, and their selected politicians and other leaders, have abandoned any sense of impartial, universal ethics–if they ever had them. Ideology is now everything, and we are closer to Shia vs. Sunni insanity.

    2. And the “fact checks” are totally non-biased, right?

    3. Soapboxes are fake news.

    4. Yes but you didn’t have liberal newspapers using hedge fund money (free money from the Fed) to shut down rivals or even conservative papers in other States. Big Tech is big because it had funding from the bankers who are very left wing (NYC types for the most part who hate traditional American values like liberty and nonintervention). These “hedge funds” have access to capital which most folks who want to build say a libertarian Twitter can’t get..they then ensure their buddies, relatives, and Ivy League woke friends get VP gigs at big tech in the content management (better to push their agenda). Big Tech is just an arm of the NYT/Wapo/DNC and everyone knows it…the censor czars at the firms are NOT representative of America in totality. Screw them..they are enemies of liberty and as such should be broken up.

    5. Before radio, newspapers were partisan, often explicitly so. Thus newspaper names such as “The Daily Democrat”, or “The Evening Republican”. So fine, fine, it was balanced because there were two.

      Yup and you could (and can) sue a newspaper for relatively any reason you saw fit. Trolls could equally deluge any given newspaper or news network with frivolous lawsuits. There were no TOCs for the average reader and newspapers could held liable for libel or voiding contractual agreements.

      Somehow, without a section 230, we managed not to sue all of print media, radio, telephones, television, and even the nascent internet out of existence. But paradoxically, the nascent internet, with its relative abundance of resources and inherently decentralized nature, is somehow exceptionally fragile. Fragile enough to require section 230 protections to stop it from breaking but, in a second paradox, robust enough to avoid section 230 from becoming Fairness Doctrine 2.0. Thank Roosevelt we have such great Top Men to see through the paradoxes to determine for us which offensive material on the internet should be blocked or screened, and which shouldn’t.

  17. >>>which are not covered by the law because they fall below its user threshold

    ya ’cause totally nobody wanted to use them. lol

  18. A bipartisan effort to cancel the 1st Amendment…
    Ya, the USA is sick; but the illness is the Nazi-Regime NOT free enterprise.

  19. Technically the law may be unconstitutional, exercising prior restraint on who the social media platforms can or can’t silence. But the effect is to protect dissenting political voices from being squelched, which seems to be a net gain for a democratic society trying to reach wise decisions by considering all competing viewpoints. Isn’t that a “compelling government interest” as the courts always look for when carving out exceptions?

    It’s like conservatives and liberals are flip-flopped on this issue, with conservatives ignoring the Constitution and liberals ignoring the public interest.

    1. Actually they are both ignoring the constitution. This law is clearly an unconstitutional violation of the freedom of speech and freedom of the press.

      You have a right to free speech. You don’t have the right to force Facebook and Twitter or anyone else to provide you with a platform for said speech.

      1. ‘[Government] Protection for blocking or screening of offensive material’ kicks the whole race off from an unconstitutional starting point.

        1. No it does not. Section 230 merely means websites can screen for offensive material not that they must.

          The only “government protection” they receive is protection from government.

          1. You’re demonstrating a near complete ignorance of the spirit, text, and practice of the law.

            The Congressmen who wrote it felt Cubby v. Compuserve was wrongly decided and Compuserve should be liable because they didn’t moderate.

            The text itself says it specifically applies issues between/among users and service providers. Specifically subordinate to and non-voiding of other federal laws. Even if it didn’t, it’s a law passed by Congress, subject to Congressional revokation, reinterpretation, and amendment.

            Section 230 has repeatedly failed to protect Craigslist, Backpage, OnlyFans, Defense Distributed, etc., etc. from government litigation and legislation. Specifically because, as noted above, it’s explicitly not intended to do so.

            You’re either a dumb sheep who doesn’t have the least clue as to what he’s talking about or an offensive misinformant that is calling on the government to protect from himself. Either way, fuck off.

  20. Obama: ‘Google, Facebook Would Not Exist’ Without Government Funding
    https://www.cnsnews.com/news/article/obama-google-facebook-would-not-exist-without-government-funding

    END the “Government Funding”!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
    Impeach Politicians who CENSOR!!!!!!!!!!!!!!!!!!!!!!!!!!!
    Problem solved.

  21. Or let’s imagine a social media platform that explicitly caters to the left and bans dissenting posts.

    No need to imagine.

    Would that constitute a violation of conservatives’ First Amendment rights, as Abbott claims?

    It would depend on the type of services they offer.

    If they are Facebook, Twitter, and Youtube, they offered users an open platform to express themselves on. Users were enticed into this wonderful new free playground and began to generate and publish content that made those companies rich.

    Then they unilaterally and illegally altered the terms of the terms of service contract. There was no public notice, no debate, just a message letting users know that they’d updated the ToS. Often there wasn’t even a button to push to say ‘okay’ or ‘no’.

    The constitutional protection against compelled publication

    There is no ‘compelled publication’. There is only a compulsion to NOT delete or alter what USERS have published. Because it is USERS who publish on these sites, not staff.

    Twitter, Youtube, Facebook et al, did not contract to publish anything. They contracted to be a megaphone into which USERS could publish THEIR content.

    And they have been violating that contract by editing.

    The entire argument made by you, Jacob, and the rest of the left, requires accepting as true that Twitter, Youtube, Facebook and other social media sites were created as publishers akin to the great book publishing houses and ruled by the same strictures. They were not.

    In fact, they were created as an alternative to such, an immediate and individual alternative that allowed everyone to get their ideas out there to a broad audience WITHOUT having to endure the whims of the editorial board at a publishing house.

    And you know and enjoy this fact even as you are screeching that it be taken from others.

    1. Forcing Facebook and Twitter to host content they don’t agree with is indeed compulsion and clearly unconstitutional.

      Just as you have the right to pick and choose which website to post your speech to, these websites have the right to pick and choose what content to allow.

      Whether they are a platform or a publisher is irrelevant. They have the right to choose what content they allow on their website. And holding them liable for illegal content posted by others is just as deranged as holding gun companies liable for crimes committed with their guns.

      1. Whether they are a platform or a publisher is irrelevant.

        “Whether they themselves generated or own the speech, or are just passing someone else’s speech along is irrelevant.”

        Might want to confab with your pro-S230 cohort:

        the property owners (the web site owners) should decide!

        “Website owners = property owners” – SQRLSY One

        You Top Men deciding who does and does not own speech up front and across the board might wind up (once again) requiring a solution to a problem you yourself created (iteratively).

      2. Forcing Facebook and Twitter to host content they don’t agree with is indeed compulsion and clearly unconstitutional.

        Facebook and Twitter sell themselves as platforms for USER content, not as content creators.

        ‘Forcing’ a company to do the task it was hired to do is called ‘upholding a contract’

        And is NOT unconstitutional, in fact, exactly the reverse.

  22. “Government restrictions on private editorial discretion violate the First Amendment”

    These social media companies are not supposed to have “editorial discretion”. Only Editors (that is the overseers of Publications) edit. If you edit you are no longer simply a platform for dialog, you are a publisher of content (which you get largely from unpaid contributors). I don’t expect Reason, the NY Times or the Orange County Register to publish anything I write. I also don’t expect them to be protected from liable and decency laws. So, are social media Editing? If so, they lose their protections.

    1. There is nothing in the law or the constitution that stipulates that a company has to choose between being a publisher or a platform in order to have the right to pick and choose what content they allow on their website. They have it regardless. And they still get legal protections.

      1. They’re private corporations acting against private citizens (or vice versa). The Constitution doesn’t apply. Even if it did. There *is* something in the Constitution about Congress making no laws regulating speech one way or the other, about a right to petition your government for redress of greivances, equal protection, due process.

        “Protections for ‘Good Samaritan’ blocking or screening of offensive material” pretty much violates all of it. By your own tenets, Cubby v. Compuserve was rightly decided. Section 230, in spirit and in letter specifically nullifies that decision.

        There are longstanding ways of addressing these disparites, which is where the publisher/speaker and speaker/platform lexicon comes from. Section 230, in no way addresses these except in the predictably stupid “Who actually owns the speech is irrelevant.” handwaving fashion you perpetrate above.

        The libertarian, or even just pragmatic or sustainable solution is not to create more laws requiring more solutions, but to correct or repeal the existing ones. If you think Title II, which traditionally distinguished platforms and carriers from speakers needs to be changed, fix that. If you think the equal protections needs fixed, fix that. A law that acknowledges the 1A, the 14A, Title II, etc. and then subverts all of it only makes more problems than it solves.

        The government should get rid of S230 and, rather than picking sides and generating a Constitutional crisis (a decision where either a private corporation loses rights or a private citizen, or amorphous group of them, does), enforce TOCs more rigorously and specifically.

        1. I’m all in favor of revisiting and revising Title II and the 14A, correcting any errors made with regard to publishers v. platforms, but you can’t do so and leave S230 in place. The inconsistency with more fundamental rights would still stand and it seems that we do, in fact, consider them to be more fundamental rights. Applicable across all speech across all media.

  23. For the 100th time..these firms offer a service that is a digital bulletin board. Can they decide what is posted on their site? Yes but….the CRA of 1964 comes into play if they censor based on race, ethnicity, religion and so on disproportiantly . Which I bet they do.

    It is sickening to watch Reason “step and fetch” for big tech…I did a little homework and the censorship czars at most of big tech are…well they are very unrepresentative of America. Most seem to have worked in the DNC and they sure are not diverse. I wonder if this is more about being a “homer” Jacob?

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  25. I think the only correct statement regarding the law in this article as related to the Texas law, is that that H.B. 20 is inconsistent with federal law. However, Section 320 itself has potential constitutional issues. Hence, it is not clear that the fact that H.B. 20 is inconsistent with Section 320 is fatal to H.B. 20.

    There is a growing body of legal arguments that point to state action by social media platforms. While the article correctly states that the “First Amendment applies to the government and imposes no constraints on private parties,” there is plenty of case law that supports the argument that any censorship by social media platforms that is contrary to the First Amendment constitutes state action.

    State action can occur when private action is entangled with government support. For example, Section 230 itself provides social media platforms with a shield against legal action. Section 230 has given social media platforms the right to both censor indiscriminately and to be free of liability for not censoring potentially defamatory and false posts. That is problematic. Couple that with that the fact that social media has now become the modern public square, a finding of state action can be found, and I believe should be found.

    I suspect that the day is coming soon where the Supreme Court will find that social media platforms must provide Due Process before removing potentially objectionable posts, with some exceptions similar to what the government is allowed to censor. There has been plenty of hints about it recently. While I can’t support some of the laws that Texas has passed recently (such as S.B. 8), H.B. 20 seems reasonable to me provided its is applied equally to both liberal and conservative posts.

    Social media platforms should not be allowed to censor different view points unless there is a compelling reason to do so, such as the threat of violence.

  26. Government has no right to tell any business what they cannot allow. They are free to restrict whatever speech they want.

    1. They are free to restrict whatever speech they want.

      And they should be free to incur any/all consequences of that speech. The same way “I wasn’t thinking.” isn’t necessarily an exoneration for lying or sexually harassing a subordinate or “I didn’t realize.” isn’t an exoneration for murder or wrongful death, “We don’t moderate up front.” shouldn’t necessarily be an exoneration for telling lies, harassing someone, or voiding contracts unilaterally and in violation of the terms. Especially when they do, in fact, perform lots of up front moderation. Society abides pathological liars, it does not and should not abide pathological liars who insist they are innocent and require up front legal protection for their lies.

  27. Citizens exercising free speech in the town square, social media, have not and can not give away their inalienable right.

    The people aren’t in the employed by social media platforms and what they say has not been inspired by these so called editors.

    Calling a social media discussion website an “editorial” is ridiculous.

    1. But social media isn’t a town square. It’s
      a) servers owned by private interests
      b) a dopamine delivery device designed to make you so stupid you give away all your personal data for free

      Not only is it just like how a casino makes you part with your money with nothing in return but a jolt of chemicals that lasts 2 seconds–they actually use the technology developed by the gambling industry.

      Twitter is a literal drug. Everyone going on about how it’s practically unthinkable to have society without it–all rationalizing drug addicts.

      1. A town square is wherever people gather to communicate.

        Everyone carries their inalienable rights onto private property.

        Or do you abdicate your right to life when you go to Walmart?

        1. One doesn’t give up any constitutional rights inside a Walmart. Congress may pass no law abridging the freedom of speech inside Walmart.

          Walmart, of course, is free to set its own terms for its private property.

          1. Walmart isn’t free to set up terms that violate your right to life.

            Just like social media communication platforms aren’t free to set up terms that violate free speech.

            Any laws passed that enable them to do so are “blatantly unconstitutional”.

        2. Would a group of Jews have a right to hold a meeting on your private property and express themselves?

  28. If social media companies within the jurisdiction of the State of Texas cannot moderate political content, would that include pro-choice sites that include addresses and phone numbers of abortion providers, even if these sites could be sued to non-existence under the Texas abortion law?

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