Court Dumps Texas's Social Media Moderation Law as Clearly Unconstitutional(techdirt.com)
techdirt.com
Court Dumps Texas's Social Media Moderation Law as Clearly Unconstitutional
https://www.techdirt.com/articles/20211202/00403748039/texas-court-gets-it-right-dumps-texass-social-media-moderation-law-as-clearly-unconstitutional.shtml
12 comments
There have been a number of articles on this today and the Techdirt one is the most extensive in terms of citing the key parts of the ruling and highlighting previous precedent from what I've seen, but the title had to be shrunk to fit HN's character limit. Important to note as well that Section 230, while utterly vital and also under attack right now, doesn't feature in this at all. This is purely about the 1A. This ruling also addressed a number of the typical tropes that regrettably appear on HN. An expected but still very nicely thorough ruling, more so then the Florida one.
Well, it's a ruling by a judge appointed by President Obama [1][2] who is very sympathetic to leftwing causes [3], so he has his biases. My own personal (non-expert) take on this is that if we want to preserve free expression, we should perhaps bring back a version of fairness doctrine (or right of reply) targeted at platforms (which I think were killed by President Reagan, unfortunately).
Do you happen to happen to have a link to the ruling on DeSantis's version of the law? I thought they were still waiting for the appeals.
I also thought DeSantis's rendition was more clever, as they tried to frame the selective enforcement of the ToS as a form of fraud. I would be interested in knowing your opinion on this.
[1]: https://en.wikipedia.org/wiki/Robert_L._Pitman
[2]: There are studies have that confirm that who judges appointed by Democrats and Republicans do indeed make different decisions.
[3]: I think he is the same judge who blocked the heartbeat law and the boycott ban.
Do you happen to happen to have a link to the ruling on DeSantis's version of the law? I thought they were still waiting for the appeals.
I also thought DeSantis's rendition was more clever, as they tried to frame the selective enforcement of the ToS as a form of fraud. I would be interested in knowing your opinion on this.
[1]: https://en.wikipedia.org/wiki/Robert_L._Pitman
[2]: There are studies have that confirm that who judges appointed by Democrats and Republicans do indeed make different decisions.
[3]: I think he is the same judge who blocked the heartbeat law and the boycott ban.
IANAL but I have some concern there is a sting in the tail. I support moderation, I prefer moderated spaces online. But, the moderator has taken on an editorial role. In Australia as I understand it the editor has a burden of duty-of-care: that which you let through, you are deemed to have published.
So.. for lower bar lawsuit risk, moderation rights paint a target on you.
Maybe in the US the higher barrier to sue for defamation makes this less risky.
But I see the risk in eg publication of state secrets, illicit content. This ruling might be weaponised to get some vicarious liability out. Common-carrier has a get out clause, only the author bears the burden AFAIK
So.. for lower bar lawsuit risk, moderation rights paint a target on you.
Maybe in the US the higher barrier to sue for defamation makes this less risky.
But I see the risk in eg publication of state secrets, illicit content. This ruling might be weaponised to get some vicarious liability out. Common-carrier has a get out clause, only the author bears the burden AFAIK
>But, the moderator has taken on an editorial role.
Yes? That's the point. That's why it's protected Free Speech. The entire point of free speech is to take perspectives! And critical to the right to say something is the right to not say something. If I want to support a specific policy or candidate or the like on my private property by putting out a sign in their favor, necessarily I must have the right to prohibit anyone else from putting out any signs on my property supporting whatever else. They may do so on their property, but not mine. If the government requires me to allow everyone to put up a sign supporting everything, it has the same effect as supporting nothing. And it would be no different if I allowed anyone else campaigning for said policy to do so as well. That all of us can take opinionated views and then advocate them in the public sphere is vital for robust debate.
>In Australia as I understand it the editor has a burden of duty-of-care: that which you let through, you are deemed to have published.
Liability is an entire separate thing (covered by Section 230) from this. But thankfully in America when it comes to moderation of platforms there is no such thing since it'd completely destroy the entire user content internet (including Hacker News itself fwiw).
>Maybe in the US the higher barrier to sue for defamation makes this less risky.
There is no liability at all for moderation.
>But I see the risk in eg publication of state secrets, illicit content.
It Government's job to protect their secrets. If private unconnected individuals get ahold of them they may publish them. This predates the internet entirely and was thoroughly dealt with during the Vietnam War with regards to the Pentagon Papers in the SCOTUS case New York Times Co. v. United States, 403 U.S. 713 (1971) [0]. And rightly so.
As far as illicit content, there is no issue at all. Platforms must of course respond to legal orders, legal take downs, the user who published something illicit is personally liable, and if they themselves publish it then they of course are liable. This has nothing to do with illegal material which by definition is illegal, this has to do with the government attempting for force people to engage with views they do not want to. If someone doesn't like how somebody else speaks on/with their own private soap box, they are free to go make another one (and indeed that is now easier then at any time in human history).
----
0: https://en.wikipedia.org/wiki/New_York_Times_Co._v._United_S...
Yes? That's the point. That's why it's protected Free Speech. The entire point of free speech is to take perspectives! And critical to the right to say something is the right to not say something. If I want to support a specific policy or candidate or the like on my private property by putting out a sign in their favor, necessarily I must have the right to prohibit anyone else from putting out any signs on my property supporting whatever else. They may do so on their property, but not mine. If the government requires me to allow everyone to put up a sign supporting everything, it has the same effect as supporting nothing. And it would be no different if I allowed anyone else campaigning for said policy to do so as well. That all of us can take opinionated views and then advocate them in the public sphere is vital for robust debate.
>In Australia as I understand it the editor has a burden of duty-of-care: that which you let through, you are deemed to have published.
Liability is an entire separate thing (covered by Section 230) from this. But thankfully in America when it comes to moderation of platforms there is no such thing since it'd completely destroy the entire user content internet (including Hacker News itself fwiw).
>Maybe in the US the higher barrier to sue for defamation makes this less risky.
There is no liability at all for moderation.
>But I see the risk in eg publication of state secrets, illicit content.
It Government's job to protect their secrets. If private unconnected individuals get ahold of them they may publish them. This predates the internet entirely and was thoroughly dealt with during the Vietnam War with regards to the Pentagon Papers in the SCOTUS case New York Times Co. v. United States, 403 U.S. 713 (1971) [0]. And rightly so.
As far as illicit content, there is no issue at all. Platforms must of course respond to legal orders, legal take downs, the user who published something illicit is personally liable, and if they themselves publish it then they of course are liable. This has nothing to do with illegal material which by definition is illegal, this has to do with the government attempting for force people to engage with views they do not want to. If someone doesn't like how somebody else speaks on/with their own private soap box, they are free to go make another one (and indeed that is now easier then at any time in human history).
----
0: https://en.wikipedia.org/wiki/New_York_Times_Co._v._United_S...
> If I want to support a specific policy or candidate or the like on my private property by putting out a sign in their favor, necessarily I must have the right to prohibit anyone else from putting out any signs on my property supporting whatever else. They may do so on their property, but not mine. If the government requires me to allow everyone to put up a sign supporting everything, it has the same effect as supporting nothing.
However the government does allow political signage in public places and has laws preventing others from removing them. However if said signage is considered by the local government to be inappropriate then it is removed. So how is a social media platform different than that public arena?
The problem I've seen is that places like Facebook and Twitter have moderation that is clearly biased. The Hunter Biden laptop story is a perfect example...they restricted the sharing of the NYP story despite no evidence that the article had any misinformation in it (still a factual story). This is no different than if you had political signage on your property and the government built a wall right outside your property to block anyone from seeing it. Are they restricting your 1A rights...technically no, but realistically yes.
However the government does allow political signage in public places and has laws preventing others from removing them. However if said signage is considered by the local government to be inappropriate then it is removed. So how is a social media platform different than that public arena?
The problem I've seen is that places like Facebook and Twitter have moderation that is clearly biased. The Hunter Biden laptop story is a perfect example...they restricted the sharing of the NYP story despite no evidence that the article had any misinformation in it (still a factual story). This is no different than if you had political signage on your property and the government built a wall right outside your property to block anyone from seeing it. Are they restricting your 1A rights...technically no, but realistically yes.
> So how is a social media platform different than that public arena?
Facebook is like a shopping mall; they're public spaces, but you're not allowed to put up any unapproved signs in them, and they can kick you out for violating their policies.
Facebook is like a shopping mall; they're public spaces, but you're not allowed to put up any unapproved signs in them, and they can kick you out for violating their policies.
Outside of US jurisdictions common carrier defence stops in the telco. Facebook is a publisher, and has publishers risks. Inside the US things may be simpler. Google are in court in Australia right now for leaving YouTube videos up about a New South Wales state politicians defamation case, settled with the video jockey who apologised but google have money.. and remain a target. I suspect from a US perspective they think it's a no brainer case. From Australian eyes, they have a less certain path in this.
The mall operator can be held liable for publishing racist graffiti? If they choose not to paint over it, do they lose a defence they didn't spray paint it? What if they also sold the paint used to do it, inside the mall?
From a US perspective I suspect you'd say "no liability" but outside the US things are more complicated. There's specific law in Germany about hate crime. I don't think it's a given there is no legal risk for Facebook or Google here.
The mall operator can be held liable for publishing racist graffiti? If they choose not to paint over it, do they lose a defence they didn't spray paint it? What if they also sold the paint used to do it, inside the mall?
From a US perspective I suspect you'd say "no liability" but outside the US things are more complicated. There's specific law in Germany about hate crime. I don't think it's a given there is no legal risk for Facebook or Google here.
Is the clarification that they're open to the public but privately owned? As distinct from spaces that are both publicly owned and open to the public like the sidewalk downtown. You can't get kicked out of the sidewalk unless you're breaking the law and get kicked out of public altogether by way of being put in the slammer.
It's kind of interesting because you could still walk by the mall if you were kicked out, looking in through the windows longing for the aroma of that giant Cinnabon just one more time. Similarly you could visit Facebook's login screen but would not be allowed to enter any more. I doubt Facebook smells quite the same in the inside, anyway.
It's kind of interesting because you could still walk by the mall if you were kicked out, looking in through the windows longing for the aroma of that giant Cinnabon just one more time. Similarly you could visit Facebook's login screen but would not be allowed to enter any more. I doubt Facebook smells quite the same in the inside, anyway.
Social media is just a utility service and should be regulated as such. Just like your power company cannot cut you off, tech companies shouldn't be able to cut you off based on your political views and opinions. Clarence Thomas got it right: https://www.nationalreview.com/2021/04/clarence-thomas-is-ri...
I don't get the argument the author of this Tech Dirt article is supporting here. The problem is that a common carrier is engaging in censorship. But the argument seems to be that that very same censorship is justification that social media companies are not common carriers:
> User-generated content on social media platforms is screened and sometimes moderated or curated. The State balks that the screening is done by an algorithm, not a person, but whatever the method, social media platforms are not mere conduits.
Yes, the problem is that they are not behaving as conduits when they should be, not that they "are not" mere conduits. Then again, Tech Dirt is tremendously biased (look at all the mentions of "Trump" in this article) and so perhaps I shouldn't be surprised at the pandering take in this article.
I don't get the argument the author of this Tech Dirt article is supporting here. The problem is that a common carrier is engaging in censorship. But the argument seems to be that that very same censorship is justification that social media companies are not common carriers:
> User-generated content on social media platforms is screened and sometimes moderated or curated. The State balks that the screening is done by an algorithm, not a person, but whatever the method, social media platforms are not mere conduits.
Yes, the problem is that they are not behaving as conduits when they should be, not that they "are not" mere conduits. Then again, Tech Dirt is tremendously biased (look at all the mentions of "Trump" in this article) and so perhaps I shouldn't be surprised at the pandering take in this article.
Why do you think social media platforms should be common carriers? Generally curious.
Excellent article. Another blow struck against those who would restrict free speech.