FIRE Podcast on Free Speech and the Texas Social Media Law

The podcast is a debate between legal scholar Brad Smith and myself.

(Michele Ursi / Dreamstime.com)

The Foundation for Individual Rights and Expression recently posted a video of a podcast on which legal scholar Brad Smith (who is also chairman of the Institute for Free Speech) and I debated the recent Fifth Circuit decision upholding the constitutionality of Texas' social media law, which bars major social media platforms from engaging in most forms of content moderation.

In the podcast, I criticized the Fifth Circuit ruling, expanded on  a post explaining why the Texas is a menace to freedom of speech, addressed the "common carrier" rationale for the Texas law, and also briefly summarized why the law violates the Takings Clause of the Fifth Amendment (an issue that has yet to be litigated in court). Brad largely defended the constitutionality of the Texas law. But it's notable that he was unwilling to endorse some of the major arguments advanced by the Fifth Circuit majority, and by other defenders of the law. We both agree this issue is likely to get to the Supreme Court (in part because the Eleventh Circuit reached a contrary decision in a ruling on Florida's similar law). In my view, the Court has already signaled that a majority of justices believe the Texas law is unconstitutional, when it overturned a previous Fifth Circuit ruling lifting a trial court injunction against implementation of the law.

I would like to thank FIRE for organizing this event, and Brad Smith for his insightful contribution to the discussion.

Comments

[Kleppe]

Let me guess, without reading or listening to anything that Ilya has posted: he sides with the Left.

[Sarcastr0]

Ain’t no right or wrong with you it seems!

Don’t be such a partisan tool.

[Ben_]

Leftists have a first amendment right to work with the government to censor dissent and discriminate in the face of anti-discrimination laws. Didn't you know?

[Rev. Arthur L. Kirkland]

Brad Smith is now claiming to be a libertarian?

Why are conservatives so afraid to be known as conservatives in modern America? What inclines them to prance around in silly, unconvincing libertarian drag?

This includes the self-described "often libertarian" or "libertarianish" clingers.

[Michael P]

"why the Texas is a menace to freedom of speech"

What a Freudian slip!

[y81]

I confidently predict that the takings clause argument not only hasn't been litigated, it will never be litigated, because no one except wingnut libertarians believes it even makes sense, so no litigant who is trying to win will ever raise it.

[Ben_]

Yeah, the takings stuff is waaaaay out there. It seems like no one agrees with Somin on that and yet Somin still persists....

People can be pretty tolerant of foolishness, but stubborn foolishness voiced over and over and over eventually becomes insufferable.

[reasonableone1959]

I'll have to watch that later. I agree with Brad on this one. If the big three national TV networks can be (or could be) regulated to give "equal time" in political advertising, because otherwise they would have too much power to sway elections, then the US or individual States ought to have the same power to prevent censorship when the only alternative to this modern version of self-publishing is actually writing essays or books and having them published, which excludes almost everyone. I think the perfect analogy is public spaces within private property, like shopping malls, where the mall's private owners cannot exclude speakers on the basis of the content of their speech.

[bernard11]

If the big three national TV networks can be (or could be) regulated to give “equal time” in political advertising, because otherwise they would have too much power to sway elections,

But that's not the entire reason. Underlying the requirement was the fact that these were broadcast networks, and the laws of physics limited competition.

Not so here.

[reasonableone1959]

I am not sure why you think that it matters if the limited competition is due to market domination or physics. There is simply nothing else like the combination of Facebook and IG (or should I say, Meta) and Twitter. Regardless of why it's true, it is true; these companies are much more similar to ABC, NBC, and CBS, before the rise of cable TV, than they are distinguishable. (Which obviously also indicates that things change; perhaps in the future technological advancement will reverse the choke hold these two companies have on their users' voices.)

[David Nieporent]

I am not sure why you think that it matters if the limited competition is due to market domination or physics.

Because market domination isn't a static thing.

[Toranth]

Harms only occur if the perpetrator is permanently in control?

[Stephen Lathrop]

Left out of consideration? If the Texas law governs, who will do the activities of publishing, without which no one will get to read or contribute. Who will assemble the audience? Who will pay for the hardware? Who will sell the advertising to pay for all the activities? Does anyone suppose the would-be contributors will perform those activities themselves? They haven't even thought about it. They have no inkling those activities even happen.

In a world where publishers are not at liberty to determine what they publish, why would anyone peering over a keyboard suppose someone will stick around to give him free services? Who would it be?

[SRG]

Out of curiosity, does anyone know what if Twitter simply blocked subscribers and tweets from Texas, using IP addresses and checkboxes ("I am not a Texan resident") etc, so that they could claim that Texas had no jurisdiction?

[DRM]

The Texas law also bans discrimination against users on the basis of users being located in Texas, so any social media platform trying to escape the Texas law would have to adjust its totality of operations so that none of them created jurisdiction for Texas. Exactly what that would mean is hard to judge, since the language of the law involves restrictions on the "social media platform", not the company operating the platform. Still, avoiding Texas law by avoiding Texas jurisdiction is probably possible under US law.

At which point, the Texas-avoiding platform has created a fairly large protected market for a clone of the platform that operates in Texas. The protected competitor would be able to serve the whole of the United States (since the First Amendment would certainly prohibit a state from requiring social media sites discriminate on the basis of viewpoint); this would at least create an ongoing threat of a disruptive transition based on network effects.

This gets much worse for the avoidant platforms if other states copy Texas. There are currently 23 states with full Republican control of lawmaking (governor and legislature), with a total population of 133 million, a market equal to the combination of the UK, Canada, and Australia in population and rather more lucrative.

[SRG]

Thank you!

[Rev. Arthur L. Kirkland]

" There are currently 23 states with full Republican control of lawmaking (governor and legislature), with a total population of 133 million, "

. . . mostly knuckle-draggers living paycheck to paycheck in towns that can't afford (and don't need) traffic lights, though.

[Krayt]

Here people argue about minutia when a $500 billion ton gorilla is slamming about, threatening to crush their business model by eviscerating section 230, unless they censored harrassment, which they did, including their political opposition right before an election.

When half of congress sits in jail for making threats to control speech about their opponents greater than the pre-inflation adjusted amount spent on the entirety of World War II, then I'll care a little more.

[Krayt]

Until then, you're the idiot parent or teacher who hears a rucus and runs in to see a harried, put upon kid smack back at his bully, and punishes the victim.

[gVOR08]

Lo these many years ago when I took HS Civics “free speech” seemed to just mean the government couldn’t punish me for what I said. Somehow it’s become about a right to demand access to any platform, a right to immunity from consequences including criticism, and the right of the wealthy to monopolize speech.

[Jacob Grimes]

The telephone company can't refuse to provide you with service because you make campaign calls for a candidate the company doesn't like.

I've read Ilya's attempt to downplay this analogy, and it's the weakest part of his argument. All he (or probably anyone) can say is that the intended audience is usually smaller (he forgets about conference calls or call-in radio and tv). But the platform being provided is the same.

[Stephen Lathrop]

Jacob Grimes — Your analogy is challenged because it restricts itself to the point of view of the guy peering across his keyboard. The entire rest of the productive enterprise is left out. You may think your online experience and your telephone experience are nearly equivalent. The internet platform activity and the phone company activity are nothing alike, and your insight into those activities is almost completely lacking.

That is before you get to the problem that the internet platform is run by a publisher, with 1A press freedom guarantees, which your suggestion would heavily burden.

[Jacob Grimes]

Whose point of view did I leave out? The one of the so-called publisher who has no idea of 99% of the content he publishes and whom no reasonable person would think is associated with that content? And who expressly states that the content is not his own?

[Stephen Lathrop]

Whose point of view did I leave out? The one of the so-called publisher who has no idea of 99% of the content he publishes and whom no reasonable person would think is associated with that content?

QED on my point about the limitations of your keyboard-centric point of view. When you insist, “no reasonable person, etc.,” you omit all the persons who are would-be advertisers, who all think accurately that the publishers’ activities associate their brands with the platform’s content. They also think the publisher’s choices and activities associate its own brand with that content. Those advertisers are the source of the funds which keep in continuous operation all the expressive activity on which you focus so narrowly.

Notably, your own choice of a telephone company as a prospective model omits advertising, and advertisers’ choices, and a publisher’s activity to mobilize the attention of an audience to sell to advertisers. Astoundingly, your analogy omits any consideration of where money to run each kind of business comes from, and omits every question whether differences in the business practices necessary to raise that money matter. Your analogy is utterly broken.

And of course we still have not discussed the point that the online publisher has a 1A press freedom right which you propose to burden.

[RENATA the rational]

and when your video is blocked on some online video channel you'll howl like a banshee 😉
the Texas law is good -- pornography, violence, and hatred flourish because the normal outlets and rebuttals are censored. Counter-intuitive but shown every day to be so.

[reasonableone1959]

Yes, you are right. But I will be convinced that I am wrong when one of the comments on Volokh's blog goes viral. This is here - its like writing papers in Con Law Class.