A federal court ruling leaves the big social media platforms with a stark choice: submit to a plague of lawsuits from their most toxic users, or stop moderating most of their content and cede their spaces to those same users. toxic.
On Wednesday, a panel of the US Court of Appeals for the Fifth Circuit overturned a stay on a social media law passed in Texas last year that essentially bans viewpoint-based moderation of content. The single page failure(Opens in a new window) of Justices Jerry E. Smith, Stephen A. Higginson and Don R. Willett allows the law to go into effect while a challenge to that law by two tech industry groups continues.
House Bill 20(Opens in a new window)signed on September 9(Opens in a new window) by Gov. Greg Abbott, says online forums with more than 50 million average monthly users “may not censor a user, a user’s speech, or a user’s ability to receive someone else’s speech based on : (1) the point of view of the user or another person; (2) the point of view represented in the user’s expression; or (3) the geographic location of a user in this state or any part of this state.”
The law defines “censorship” as anything that prevents a post: “block, ban, remove, deplatform, demonetize, reduce momentum, restrict, deny equal access or visibility, or otherwise discriminate against expression.”
The content that HB 20 says sites can still block is limited to material that federal law allows them to censor, that organizations fighting child sexual exploitation have flagged, that “directly encourages criminal activity or consists of threats violence” directed at “race, color, disability, religion, national origin or ancestry, age, sex, or status as a law enforcement officer or judge,” or is “otherwise unlawful.”
Both the Texas Attorney General and private citizens can sue social media platforms for violating HB 20.
Advocates for the law, such as Abbott, have called it a required response.(Opens in a new window) to sites that favor left-wing over right-wing speakers: The bill and a similar one in Florida were written after social sites banned President Trump for inciting the Jan. 6 insurrection and incessantly lying about his defeat 2020 election, but its blanket coverage The ban on viewpoint moderation goes much further.
To put this in more specific terms, HB 20 would require Facebook to accept Vladimir Putin propagandists and Holocaust deniers and force Twitter to welcome back anti-vaccine and ISIS advocates.
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As Santa Clara University School of Law Associate Dean Eric Goldman wrote after the law passed(Opens in a new window):
“To reinforce the point that the legislature has no interest in the quality of online speech, the legislature rejected amendments that would have authorized Internet services to remove content related to Holocaust denial, terrorism, or vaccine misinformation. . In other words, the legislature agrees to the unrestricted proliferation of all these categories of content.”
Goldman and other legal scholars have repeatedly pointed out that this flaw violates First Amendment free speech guarantees, which also protect a publisher’s right to choose what to publish. For example, PCMag has a First Amendment right to refuse to post your comment and to refuse to post the next post you write.
With the Texas law now in place, one person in particular should be watching its consequences with keen interest: future Twitter owner Elon Musk, who keeps saying that Twitter’s moderation policies should go no further than blocking content. illegal.
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