Texas’ Unconstitutional Social Media Law Allowed to Proceed(eff.org)
eff.org
Texas’ Unconstitutional Social Media Law Allowed to Proceed
https://www.eff.org/deeplinks/2022/05/blow-free-speech-texas-unconstitutional-social-media-law-allowed-proceed-pending
46 comments
When the criminal "Civil Rights Act" came to be, people got confused about what is public property, and what is private property and no one else's business.
The title is editorialized and different from the title in the article, specifically the addition of "unconstitutional"
The article said a lower court found it unconstitutional, but that was struck down. Unfortunately it didn't explain why the court struck it down (presumably because that would have spoiled the narrative) so I don't know if it was a technicality or if the higher court found it was constitutional.
The article said a lower court found it unconstitutional, but that was struck down. Unfortunately it didn't explain why the court struck it down (presumably because that would have spoiled the narrative) so I don't know if it was a technicality or if the higher court found it was constitutional.
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EFF likely changed their own title; "unconstitutional" is present in the url string. (I'm not OP)
edit to add:
https://web.archive.org/web/20220512173904/https://www.eff.o...
edit to add:
https://web.archive.org/web/20220512173904/https://www.eff.o...
Good catch, I didn't see that!
No, the lower court issued an injunction and the higher court lifted it. The case is still being argued.
The EFF has really lost their way. They should not be defending Big Tech censoring the Internet.
> ... Big Tech censoring the Internet.
Big Tech is literally publishing the Internet: it can be seen on Instagram, Twitter, Youtube, Twitch, TikTok, etc. (I don't include Google Search and other search providers because they're not generally considered "social media".) The law would allow Texans to sue big tech specifically for not publishing their individual stuff, which could easily be argued as an infringement, by law, of their own speech rights.
If you intend to be arguing that Big Tech has too much of a hand in what gets published, I at least would be one to agree. It should still be the case, however, that they are able to choose what they publish.
Big Tech is literally publishing the Internet: it can be seen on Instagram, Twitter, Youtube, Twitch, TikTok, etc. (I don't include Google Search and other search providers because they're not generally considered "social media".) The law would allow Texans to sue big tech specifically for not publishing their individual stuff, which could easily be argued as an infringement, by law, of their own speech rights.
If you intend to be arguing that Big Tech has too much of a hand in what gets published, I at least would be one to agree. It should still be the case, however, that they are able to choose what they publish.
I'm sympathetic to attempts to rein in overzealous social media moderation but... this position is entirely consistent with the EFF for as long as I remember there being an EFF. A law that says you can't moderate social media strikes me as worse than leftist moderators.
By arguing for the free speech rights over government compelled speech?
I wonder if Trump’s Truth platform would allow “free speech”?
I’ve been banned from RedState repeatedly.
I’ve been banned from RedState repeatedly.
People seem to confuse freedom of speech with antitrust issues when it comes to social media curating content. They’re private companies, they can curate content as they see fit. If someone doesn’t like it, use a different platform. If one platform is too dominant then it’s an antitrust issue.
Yes, I think that's the most sensible framework for looking at this. The challenge is that antitrust laws may need to be updated or reinterpreted for platform companies. And there doesn't seem to be too much political will for that. All sides mainly seem to support laws and private action that align with censoring views they disagree with and forcing hosting of views they support. Well only make progress when people (a) agree there will be views they don't like or agree with on the internet and (b) as you say, outside of a monopoly power situation, private companies can choose what they decide to publish or not publish.
This argument has become so tiresome.
Speech laws become very blurry when it comes to corporations. I'd get in trouble with regulators if I went around saying the herbal supplements I sell cures cancer. Government forces companies to published compelled speech when it comes to food labeling or alcohol/cigarette warnings.
Where does the line exist? I don't know and I'd love to see a court rule on this.
Speech laws become very blurry when it comes to corporations. I'd get in trouble with regulators if I went around saying the herbal supplements I sell cures cancer. Government forces companies to published compelled speech when it comes to food labeling or alcohol/cigarette warnings.
Where does the line exist? I don't know and I'd love to see a court rule on this.
No, people like to pretend speech lines get "blurry" so they can push their own agendas. Breaking the law is already illegal. This, and the current debate generally, is about trying to have the government intervene online when people say legal things someone doesn't like, or don't want to host things they don't like.
Those are specific issues around as advertising. They do not generalize to social media companies.
We should not expect private individuals or corps to be able to infringe on people's rights.
If a monopoly infringes on any of my rights, I expect the government to do something about it. Heck, even a non-monopoly company. Such companies should be split up, regulated, whatever, and the officers should be subject to penalties.
A monopoly should not be thought of in the same way as some random company.
If a monopoly infringes on any of my rights, I expect the government to do something about it. Heck, even a non-monopoly company. Such companies should be split up, regulated, whatever, and the officers should be subject to penalties.
A monopoly should not be thought of in the same way as some random company.
Being moderated by a social media website is not an infringement of your rights, and social media platforms are not monopolies.
Just because it's a private company doesn't mean zero rules apply to it. You can't just start a restaurant (a private company) and say no blacks allowed.
And yet as a restaurant owner you have the right to determine what is and isn't on your menu, and to eject unruly customers and (barring legally protected classes) can legally refuse service to anyone.
> You can't just start a restaurant (a private company) and say no blacks allowed
But you can ban people who start restaurants and say "no blacks allowed". Do you see the difference the two groups? One is what people are. The other is what they say or do. Discrimination based on the the first is illegal. Discrimination based on the second is not.
But you can ban people who start restaurants and say "no blacks allowed". Do you see the difference the two groups? One is what people are. The other is what they say or do. Discrimination based on the the first is illegal. Discrimination based on the second is not.
You are assuming the answer.
We are currently having an argument as to whether such discrimination should be allowed.
Given we have a right to free speech, and that this is not allowed to be infringed on by any US government, does that not also extend to the government actively protecting that right from those who would seek to infringe on it?
There is quite a body of law that says that the government should do just that.
We are currently having an argument as to whether such discrimination should be allowed.
Given we have a right to free speech, and that this is not allowed to be infringed on by any US government, does that not also extend to the government actively protecting that right from those who would seek to infringe on it?
There is quite a body of law that says that the government should do just that.
That’s a really roundabout way of saying “The government isn’t allowed to infringe on speech (generally speaking), therefore the government should be compelled to intervene when a private entity infinges on the principles of free speech on its private property”. It’s a non sequitur, and even as non sequiturs go, this is a particularly unserious one.
The federal government can, and will intervene when state or local governments infringe on peoples rights. It happens all the time.
So the federal government is already doing way more than just not infringing. It's also protecting.
Twitter, Facebook, and other monopolies have more power than state or local governments to infringe, so obviously the federal government should intervene to protect people's rights.
So the federal government is already doing way more than just not infringing. It's also protecting.
Twitter, Facebook, and other monopolies have more power than state or local governments to infringe, so obviously the federal government should intervene to protect people's rights.
Twitter, Facebook, et al. have the power to arrest you and seize your home?
> does that not also extend to the government actively protecting that right from those who would seek to infringe on it?
Surely then you'd be ok with me camping on your lawn day and night with a sign to attempt to change your mind? And following you around to grocery stores, restaurants, the gym, your place of worship etc? Obviously your workplace or people whose houses you visit would have no right to kick me out either? The government must protect this infringement upon my free speech, no? I mean, I'm not saying anything illegal so you have to allow it everywhere.
Surely then you'd be ok with me camping on your lawn day and night with a sign to attempt to change your mind? And following you around to grocery stores, restaurants, the gym, your place of worship etc? Obviously your workplace or people whose houses you visit would have no right to kick me out either? The government must protect this infringement upon my free speech, no? I mean, I'm not saying anything illegal so you have to allow it everywhere.
You can as a restaurant require a certain level of clothing. That can be used for overtly discriminatory purposes, but is allowed.
(Some social media) can say “here are the rules you need to conform to: don’t threaten people, don’t propagate racist abuse, etc” they can’t say “we don’t accept black people”, but if they have rules that apply to everyone, then it’s their own right.
Musk wants trump on Twitter because musk recognizes that buying favour is super easy with trump.
(Some social media) can say “here are the rules you need to conform to: don’t threaten people, don’t propagate racist abuse, etc” they can’t say “we don’t accept black people”, but if they have rules that apply to everyone, then it’s their own right.
Musk wants trump on Twitter because musk recognizes that buying favour is super easy with trump.
I think he just recognizes that Trump is a money-printing machine for Twitter.
The unintended consequences of this seem off the charts. It's not clear what type of moderation is acceptable under the law. The law was designed to target big sites, but very little stops someone from registering tens of millions of users on a site with a particular slant, posting something that will obviously get moderated, and then suing the site.
I can imagine that both active moderation and meta-moderation by voting would expose a site to litigation.
I can imagine that both active moderation and meta-moderation by voting would expose a site to litigation.
> The law was designed to target big sites
Curious that "big site" is defined as 50 million users and not, say, 1 million users.
Maybe because the right-wing authors of this law want right-wing sites to be able to grow and still be exempt from the law, to allow right-wing communities to continue censoring views they don't like.
For example, Truth Social (2 million users), Gettr (3 million users) and Gab (4 million users).
Curious that "big site" is defined as 50 million users and not, say, 1 million users.
Maybe because the right-wing authors of this law want right-wing sites to be able to grow and still be exempt from the law, to allow right-wing communities to continue censoring views they don't like.
For example, Truth Social (2 million users), Gettr (3 million users) and Gab (4 million users).
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Let me see if I understand the left’s conception of free speech here.
1) A corporation producing a political movie about a candidate isn’t free speech.
2) But a corporation censoring content based on political views is free speech.
1) A corporation producing a political movie about a candidate isn’t free speech.
2) But a corporation censoring content based on political views is free speech.
1. A corporation is a legal fiction created by government gift to signify that the individuals participating in the corporation's affairs have limited financial exposure when they would otherwise be subject to unlimited exposure for the corporation's debts and liabilities. If, as a condition of that limited liability, a relevant governing body wants to restrict what can be published in the name of a corporation, no individual's free speech is being restricted. Congress should be able to impose such restrictions under the Commerce Clause and/or the Republican Form of Government Clause; states should be able to do so under their general police powers; all subject to the usual constitutional restrictions (equal protection, due process, etc.).
2. A corporation can (or at least should be able to) allow or forbid content on its own platform as it sees fit --- but by the same reasoning as #1, a relevant state legislature should be able impose conditions on limited liability, and logically those conditions could include free-speech [EDIT:] restrictions on content moderation (subject to federal constitutional constraints, e.g., under the Supremacy Clause).
2. A corporation can (or at least should be able to) allow or forbid content on its own platform as it sees fit --- but by the same reasoning as #1, a relevant state legislature should be able impose conditions on limited liability, and logically those conditions could include free-speech [EDIT:] restrictions on content moderation (subject to federal constitutional constraints, e.g., under the Supremacy Clause).
Without relitigating Citizens United, I would think that content moderation is far less worthy of speech protections than the political movie in Citizens United.
Content moderation is basically house cleaning. Companies do it to make their platforms more pleasant for customers, the same reason stores sweep the floors. But that makes it less deserving of speech protections because it’s not expressive. Put differently, when the ACLU publishes something, people attribute that to the ACLU and the ACLU has the right to control its message. But nobody attributes things people post on Twitter to Twitter.
Content moderation is basically house cleaning. Companies do it to make their platforms more pleasant for customers, the same reason stores sweep the floors. But that makes it less deserving of speech protections because it’s not expressive. Put differently, when the ACLU publishes something, people attribute that to the ACLU and the ACLU has the right to control its message. But nobody attributes things people post on Twitter to Twitter.
ISTM that you're putting the cart before the horse: We don't need to be discussing whether content moderation needs speech protection, because the people who advocate for government regulation of content moderation haven't proved up the need for, and appropriateness of, such regulation.
(In litigation terms, since we're both lawyers: It's premature to focus on whether to give platforms free-speech protection for their content moderation would be akin to an affirmative defense: The question doesn't need to be reached unless and until those urging regulation of moderation succeed in making a Twombly/Iqbal plausible case, which in my judgment they haven't.)
(In litigation terms, since we're both lawyers: It's premature to focus on whether to give platforms free-speech protection for their content moderation would be akin to an affirmative defense: The question doesn't need to be reached unless and until those urging regulation of moderation succeed in making a Twombly/Iqbal plausible case, which in my judgment they haven't.)
I edited my #2 in my GP post because we might be talking past each other in the second graf of your parent post above.
The "left's" position is that both are free speech.
Free speech means that someone is allowed to engage in speech, not that they are immune from the social or market consequences for their speech.
The "left's" contention with Citizens United was that spending money was treated as speech. But spending money is not speech. It's an act. Speech is content.
Free speech means that someone is allowed to engage in speech, not that they are immune from the social or market consequences for their speech.
The "left's" contention with Citizens United was that spending money was treated as speech. But spending money is not speech. It's an act. Speech is content.
> The "left's" contention with Citizens United was that spending money was treated as speech. But spending money is not speech. It's an act. Speech is content.
Citizens United involved creating and distributing a movie about Hilary Clinton. Spending money was incidental to the speech.
Twitter spends money on its platform too. Does that give the government power to regulate what Twitter publishes?
Citizens United involved creating and distributing a movie about Hilary Clinton. Spending money was incidental to the speech.
Twitter spends money on its platform too. Does that give the government power to regulate what Twitter publishes?
For those who don't get the reference. #1 is referring to the Citizens United SCOTUS ruling.
Oh, so important context was left out. Standard argument technique.
This might be extremely controversial but I think Facebook should be able to take down pornography on their platform. Since pornography is considered speech in the US that means I’m not a free speech absolutist. I’m not sure where the right line to draw is but it’s clear platforms need some censorship rights over their platforms.
How about "pornography is OK but only if you're $RACE?"
The issue at issue isn't "can they moderate content" but "should content moderation be applied equally"
The issue at issue isn't "can they moderate content" but "should content moderation be applied equally"
That doesn't appear to be the case in HB 20, at all, although proponents have certainly tried to claim it is.
This seems like one of the situations where the law is overly broad on-purpose to get reasonable people to take a position on it that seems unreasonable if only taken at face value, but has overly broad implications that reasonable people would be concerned about.