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.
Internet groups respond: H.B. 20 "is an unprecedented assault on the editorial discretion of private websites…that would fundamentally transform their business models and services," state NetChoice and the CCIA in their petition to the Supreme Court. Without the ability to moderate based on "viewpoint," all manners of distasteful and offensive content would have to be permitted, the groups suggest:
HB20 prohibits covered social media platforms…from engaging in any viewpoint-based editorial discretion. Thus, HB20 would compel platforms to disseminate all sorts of objectionable viewpoints—such as Russia's propaganda claiming that its invasion of Ukraine is justified, ISIS propaganda claiming that extremism is warranted, neo-Nazi or KKK screeds denying or supporting the Holocaust, and encouraging children to engage in risky or unhealthy behavior like eating disorders. HB20 also imposes related burdensome operational and disclosure requirements designed to chill the millions of expressive editorial choices that platforms make each day.
NetChoice and the CCIA want the Supreme Court to vacate the 5th Circuit's stay and allow the district court's order to remain in effect "while an orderly appellate process plays out," they write. "Vacating the stay in this case will maintain the status quo while the Eleventh Circuit also considers a parallel appeal concerning a preliminary injunction against Florida's similar law," they add.
The common carrier conundrum: Texas, of course, does not want a return to the status quo. In a response to the NetChoice and CCIA petition, Texas Attorney General Ken Paxton argued that it's OK to violate the First Amendment rights of large internet companies "because Texas law declares the platforms are common carriers. The State may therefore properly limit the platforms' ability to discriminate among their customers."
"It is well established that a common carrier 'can make no discrimination between persons,' and is 'bound to accept all goods offered within the course of his employment,'" states the Texas response, comparing social media platforms to telegraphs and telephones.
The idea that social media must be treated like a common carrier is wrong, points out John Bergmayer at Public Knowledge.
There isn't one single characteristic that demands that a service be treated as a common carrier, or prevents it from being one. The policy question is simply whether common carrier regulation would be socially beneficial with respect to a certain service, or whether there are alternative models of regulation that might work better.
But the idea that social media should be treated like common carriers has become a popular (if incredibly short-sighted and weird) conservative talking point.
Of course, a phone company or a telegraph company—where information is communicated privately between two (or a small number) of people—is nothing like social media, where speech by one user can reach all users. In arguing to treat social media like common carriers, conservatives could make these platforms havens for content that makes other users flee and repositories of things—like frank discussions and depictions of sexuality—that conservatives in other realms are fighting to suppress.
For a detailed and multifaceted case against treating social media platforms like common carriers, see this post from George Mason University law professor and Volokh Conspiracy contributor Ilya Somin.
Alas, Paxton is far from alone in pushing to treat tech platforms like common carriers. Angry at perceived bias against conservative users, Republicans have been embracing any tool within reach to try and bludgeon Big Tech with it.
Conservative Supreme Court Justice Clarence Thomas has also expressed support for treating social media companies like common carriers.
In this case, 12 states have filed an amicus brief with the Supreme Court supporting Texas' law, reports The Washington Post. Tech companies have an "enormous control over speech" and "the states have a strong interest in seeing that it is not abused," states their brief.
"In its effort to protect conservative speech, Texas Republicans have adopted a historically discredited left-wing legal theory, dispensing with core conservative values in the process," suggested Thomas Berry and Nicole Saad Bembridge in a recent piece for Reason:
In the 1960s, a group of progressive scholars argued that the First Amendment does not merely prohibit the government from censoring private speech and press. In fact, they argued, it granted the government the affirmative power to control the mass media. In a capitalist system, they reasoned, the government must ensure that private media owners do not exclude unwelcome viewpoints, in order to protect the "democratic interest" in free speech. To this end, the scholars championed the Fairness Doctrine, right-of-reply mandates, and expansive applications of "common carriage" doctrine, which enable the government to force the inclusion of certain content.
Borrowing from the same playbook, Texas now argues that First Amendment values require, rather than prohibit, government interference with private speech. H.B. 20 declares that social media platforms are common carriers like telephone companies and thus are subject to onerous restrictions over who and what they may host. According to Texas, H.B. 20 serves the democratic interest in protecting the free exchange of ideas and information. But like the collectivist efforts that preceded it, Texas' misguided attempt to advance "First Amendment rights in the Lone Star State" violates private platforms' First Amendment rights to choose what speech they publish.
A dangerous precedent? In a brief filed with the Supreme Court in opposition to H.B. 20, the American Civil Liberties Union (ACLU) and the ACLU of Texas suggest that allowing the law to stand could set a dangerous precedent.
H.B. 20 "challenges core pillars of the freedoms of speech and the press" and "while Texas has chosen to target new digital platforms today, its defense of HB 20 offers no limiting principle that would prevent it from turning its attention to the most traditional of media tomorrow," they suggest.
TechFreedom also portends reverberating effects. "No one—no lawyer, not [sic] judge, no expert in the field; not even the law's own sponsors—knows what compliance with this law looks like," said Corbin K. Barthold, director of appellate litigation at TechFreedom, in a statement.
"Indeed, HB 20 is designed to generate as much litigation as possible. Any social media user in Texas may sue to undo any act of content moderation," notes Barthold. "Each lawsuit will contend that the real basis for the content moderation was the poster's 'viewpoint.' Take a ban on beheading videos. Is that a viewpoint-neutral policy against a certain type of content? Or is it at heart a viewpoint-based anti-ISIS rule? Such questions are infinite, and, under HB 20, they'll be litigated."
Many of the strongest defenders of social media (and the internet more broadly) against attacks like Texas' H.B. 20 have been libertarians. Whereas liberals were once broadly and staunchly protective of free speech, they now have their own problems with the First Amendment and social media, as journalist Jeff Jarvis points out in this thread:
I am no lawyer or legal scholar, to be sure. I have great respect for the Knight Center and these authors. But as a journalist, a few assertions here deeply trouble me. 1/https://t.co/Fu7j66w4vo
— Jeff Jarvis (@jeffjarvis) May 19, 2022
A win for online anonymity. "A federal judge has said he's ready to quash a subpoena to Twitter over an anonymous user," reports Law.com. Twitter had moved to quash the subpoena, which "included probing questions" about the plaintiff's "possible connection to hedge fund billionaire Brian Sheth, who was targeted by the Twitter user whom the subpoena seeks to identify." U.S. District Judge Vince Chhabria "heartily endors[ed] an amicus brief from the Washington, D.C.-based Public Citizen, saying it 'may be the most helpful brief I've ever read,'" Law.com points out.
"Because an order compelling disclosure of a speaker's identity, if successful, would irreparably destroy the defendant's First Amendment right to remain anonymous, the court must balance the parties' respective interests," said the Public Citizen brief. "Whatever a speaker's reason for choosing anonymity, a rule that makes it too easy to remove the cloak of anonymity will not only harm that speaker's right but, by chilling speech from those who know their vulnerabilities, deprive the marketplace of ideas of valuable contributions."
Law professor and author Jeff Kosseff, author of The United States of Anonymous, notes that "Twitter routinely goes above and beyond to advocate for its users' ability to speak anonymously."
"Of course there is a lot of debate about Twitter and free speech these days," Kosseff added. "As someone who has studied this particular area of free speech for years, I can say that Twitter has been committed even in very challenging cases."
Oklahoma lawmakers approve abortion ban. A measure that passed the Oklahoma House 73–16 on Thursday would ban abortion at "any stage of gestation." The measure—which cleared the Senate in April and is modeled after a bill passed last year in Texas—would allow the ban to be enforced via civil lawsuits. If it becomes law, individuals could sue Oklahoma abortion providers or anyone who "aids or abets" an abortion.
"The bill makes exceptions for cases of rape and incest, but only if those crimes have been reported to law enforcement," notes The New York Times.
• U.S. intelligence agencies "prohibit literally millions of former public servants from speaking or writing about government policy without first obtaining the government's approval," notes Just Security. On Thursday, the Supreme Court considered a petition "asking the Court to revisit Snepp v. United States, the forty-year-old case atop which the intelligence agencies' far-reaching system of prior restraint has been built."
• Canada is lifting restrictions on gay men donating blood. Under current Canadian policy, gay men can only donate blood if they haven't had sex in the past 90 days. (This is still the policy in the U.S.)
• The First Amendment protects the right to put a tiny penis on a beer label.
• Emails verified by The Washington Post show Tucker Carlson and his wife asking Hunter Biden—someone Tucker has repeatedly bashed on his Fox News show—to help their son gain admission to Georgetown University. "The interactions reveal the extent to which Carlson was willing to turn on a former associate as he thrives in a hyperpartisan media world" and " how Carlson once sought to benefit from the elite political circles in Washington that he now regularly rails against as the 'ruling class,'" suggests the Post.
• Biden's baby formula airlift stunt should never have been necessary, writes Reason's Eric Boehm.