A US appeals court rules 2-1 to let Texas enforce a social media law stopping Twitter, Facebook, and other services with 50M+ users from moderating content
A judge blocked a similar law in Florida on First Amendment grounds — The controversial Texas social media law HB 20 …
The Verge Adi Robertson
Related Coverage
- View article PCMag
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- View article ExchangeWire.com
- Appeals court rules Texas social media law can proceed Protocol · Ben Brody
- A law inviting Texans to sue social media companies over ‘censorship’ is back TechCrunch · Taylor Hatmaker
- Netchoice v. Ken Paxton NetChoice
Discussion
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@b_fung
Brian Fung
on x
Listening to the oral arguments on Texas's social media law and ughhhhhhhhhhhhhhhhhh One of the judges just conflated “interactive computer service” with “internet provider”
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@mjs_dc
Mark Joseph Stern
on x
The 5th Circuit just reinstated Texas Republicans' ridiculous law prohibiting social media companies from “censoring” their users based on “viewpoint” and subjecting these companies' own speech to intrusive, ongoing government regulation. This is nuts. https://capitol.texas.gov/.…
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@wendyndavis
Wendy Davis
on x
5th Circuit lifts stay, allows enforcement of Texas social media law. Court hasn't spelled out reasoning yet. Not yet clear whether @NetChoice and @ccianet will seek immediate review https://twitter.com/...
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@rmfifthcircuit
Raffi Melkonian
on x
Netchoice: CA5 has stayed the district court's preliminary injunction in the NetChoice case (i.e., reviving for now Texas's strange anti-bias law, HB20. The panel is not unanimous we are told, but not who dissents (I think I can guess, but who knows). https://twitter.com/...
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@b_fung
Brian Fung
on x
And here is the exchange on whether Twitter is even a website at all, and if it is, whether it is covered by Section 230. This is insane. The fact that websites like Twitter *are* covered by 230 is the entire reason why there's a whole movement underway to change or repeal 230! h…
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@mjs_dc
Mark Joseph Stern
on x
To be clear: There is literally no way any social media company could possibly comply with this law, which means that all of them will be hit with a flood of lawsuits if the 5th Circuit is not overruled soon. The only real solution is to cease operations in Texas indefinitely.
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@daphnehk
Daphne Keller
on x
I'm trying to get my head around what it even means for Texas's batty social media law to go into effect. My sympathies to the platform lawyers making the same calculations.
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@mjs_dc
Mark Joseph Stern
on x
Twelve years out from Citizens United, Republican judges and lawmakers have come together to crush the First Amendment rights of corporations that are deemed overly woke and unfriendly to conservatives. Incredible stuff.
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@medialawprof
Chip Stewart
on x
This is very, very bad. And it has the potential to get even worse because SCOTUS can rubber-stamp it on the shadow docket. Which would undo decades of settled First Amendment jurisprudence. https://twitter.com/...
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@b_fung
Brian Fung
on x
The same judge does not seem to recognize Twitter or Facebook as websites.
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@popehat
@popehat
on x
/8 So. Is that fine and dandy? Not really. The distinction is frequently elusive. It's like the First Amendment distinction between content discrimination and viewpoint discrimination — often fuzzy, often subject to protracted litigation. But it gets worse.
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@sharkhand
@sharkhand
on x
@RMFifthCircuit Some background: https://www.texastribune.org/ ...
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@metaltxt
@metaltxt
on x
this basically has to go to SCOTUS immediately or social media companies will have to... not allow people in texas on the platforms at all? https://twitter.com/...
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@mjs_dc
Mark Joseph Stern
on x
The Texas law flouts all known precedents regarding internet regulation and compelled speech. Frankly, the 5th Circuit's action today looks like Republican judges lashing out at social media companies for allegedly being too liberal—the exact purpose of this statute.
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@josephmenn
Joseph Menn
on x
Another day I feel that this great American experiment with democracy is getting extra-experimental. https://www.theverge.com/...
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@medialawprof
Chip Stewart
on x
Facebook shut down in Australia temporarily when they tried to hit them with liability like this. I wouldn't be surprised if they went dark in Texas for a bit - especially when the AG sues in the next couple of days. https://twitter.com/...
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@popehat
@popehat
on x
/3 But what CAN the site censor? Well, the site can censor content that's illegal, that's outside the protection of the First Amendment, and certain specific threats. That's a very narrow range. https://twitter.com/...
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@popehat
@popehat
on x
/2 The anti-censorship provision says the site can't censor based on the viewpoint of the person or the person's content. So, clearly, that would mean that you can't censor for saying “boo abortion” or “yay miniature American flags.” https://twitter.com/...
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@reckless
Nilay Patel
on x
This is monumentally stupid https://www.theverge.com/...
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@asfleischman
Andrew Fleischman
on x
I can't imagine there is a single social media website in compliance with this law, or that it is possible to comply. Could someone get in touch with the grandchildren of these judges and get them to intervene? https://twitter.com/...
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@questauthority
Mike Dunford
on x
The Fifth Circuit's action today means that Ken Paxton is in charge of moderation at Google, Facebook, and Twitter. https://twitter.com/...
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@questauthority
Mike Dunford
on x
So their choice is fairly simple, from a business perspective. They can either implement the impossible before the effective date of the bill which *checks calendar* would appear to require a time machine, or they can stop operating somewhere.
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@cathygellis
Cathy Gellis
on x
Oh, and it's worse. Because it outright violates Section 230. Because it means Congress can't fix it. Because Congress ALREADY fixed it, and the courts don't care. This is Alito's Dobb's decision bad, and that's no exaggeration (because it's bad for many similar reasons). https:/…
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@evan7257
Evan
on x
lol wtf bad news for Texas https://twitter.com/...
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@hallerjackson
Haller Jackson
on x
@TabbyKeats @RMFifthCircuit Not any more. Because that's censoring based on geography, which the law—that is now in effect—bans.
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@popehat
@popehat
on x
/18 The only practical approach, short of overturning the law, is to make your Acceptable Use policy as broad as the law, allowing EVERYTHING that's not illegal. Please welcome frontal nudity to Club Penguin!
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@popehat
@popehat
on x
/6 Now, apparently, this means that a site may discriminate based on TYPES of content, just not VIEWPOINT of content. Like, I guess, the site can say “no swearing” but can't say “no swearing about any of @nickgillespie's leather jackets.” Or “no porn” but not “no anti-war porn.”
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@rmfifthcircuit
Raffi Melkonian
on x
Here is the injunction that has now been stayed. https://netchoice.org/...
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@chrisgeidner
Chris Geidner
on x
The 5th Circuit did this without giving the parties time to go to SCOTUS (or even to the 5th Circuit en banc) to argue that the law should not be allowed to go into effect while the appeal is ongoing.
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@cman2k
@cman2k
on x
Very excited and proud to see the project my team and I have been building over the last year, Immersive View, announced today at Google I/O! https://blog.google/... https://twitter.com/...
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@popehat
@popehat
on x
/14 Texas stuck language in the bill making it deliberately harder for sites to defend claims. First, it made it clear that people can keep suing in different Texas courts until a court with authority over ALL of those courts says the law's invalid. https://twitter.com/...
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@questauthority
Mike Dunford
on x
Unless the social media companies can rapidly implement measures that censor content based on the geographic location of the reader - something the asinine law in Texas may also ban - they're subject to legal sanctions in at least one jurisdiction.
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@ggreeneva
Greg Greene
on x
Some people would piddle around with enlarging SCOTUS. I say the country needs to modernize the courts with a new Judiciary Act — with more district judges, a redesigned SCOTUS ... and a 5th Circuit melted in the fires of Mount Doom, for our safety's sake. https://twitter.com/...
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@jeffjarvis
Jeff Jarvis
on x
Shorter Texas: fuck the First Amendment. Appeals court rules Texas social media law can proceed https://www.protocol.com/...
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@jameeljaffer
@jameeljaffer
on x
Texas's First Amendment theory—which the Fifth Circuit apparently endorses—would give the government sweeping power to manipulate public discourse online. This is a terrible decision. Here's the brief @knightcolumbia filed in the case a few weeks ago: https://knightcolumbia.org/.…
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@chrisgeidner
Chris Geidner
on x
The Supreme Court — through its own shadow docket orders and through its treatment of the 5th Circuit (in the SB8 case, primarily) — has 100% encouraged this absolutely unnecessary, destabilizing sort of order. (1/x) https://twitter.com/...
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@dangillmor
Dan Gillmor
on x
Right wing judges are radically changing what the First Amendment means, and does. This ruling about the insane social media law in Texas is a scary example. https://www.theverge.com/...
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@ccianet
@ccianet
on x
Today, @ccianet and @NetChoice present oral argument on Texas's appeal of a ruling against its unconstitutional social media law. Learn more here: https://www.ccianet.org/...
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@thinkingsapien
@thinkingsapien
on x
Oh look, there is a 53 minute recording of this NetChoice v Paxton hearing. I will have to listen to this. https://www.youtube.com/... https://twitter.com/...
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@popehat
@popehat
on x
/10 Say Twitter has a no-swearing policy and I say “@DavidAFrench has a shit-ass opinion about Aquaman.” Twitter suspends me. All I have to do is sue and claim Twitter's REAL reason for censoring me is my viewpoint on David, or Aquaman, not my swearing. Twitter has to litigate it
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@mjs_dc
Mark Joseph Stern
on x
If the 5th Circuit has its way, social media companies will be compelled to disseminate hateful speech from Neo-Nazis and the KKK, as well as medical misinformation and foreign disinformation, because they will no longer have a First Amendment right to editorial discretion.
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@jake_zuckerman
Jake Zuckerman
on x
A very similar bill passed out of committee in Ohio last week. This chocks up to a win for its backers https://twitter.com/...
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@5dollarfeminist
Liz Dye
on x
The Fifth Circuit is a menace, part eleventy million https://twitter.com/...
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@rmfifthcircuit
Raffi Melkonian
on x
A post-argument stay I think telegraphs the result of the appeal almost 100%, so expect an opinion upholding the law at some point.
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@videah_
@videah_
on x
It's getting harder and harder to see a future where Twitter exists in 5 years in any serious capacity tbh https://twitter.com/...
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@mjs_dc
Mark Joseph Stern
on x
If you are struggling to make sense of Republican judges upholding an assault on corporate speech that contradicts all their stated values, please consider this possibility! https://twitter.com/...
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@medialawprof
Chip Stewart
on x
Anyhow, those of us who have TWO BOOKS IN PRESS RIGHT NOW citing the district court's very proper halting of this 1A-violating law, instead of this bonkers unexpected reversal, are not happy. Stare decisis isn't just for lawyers and the rule of law. https://twitter.com/...
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@steve_vladeck
Steve Vladeck
on x
This is almost certainly going right to #SCOTUS—through an application to vacate the stay. It'll be a big “shadow docket” ruling when it comes; whether it's consistent with critiques of the shadow docket depends not on *which way* the Court rules, but whether it explains itself. …
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@popehat
@popehat
on x
/20 I've been describing a practical, litigator-perspective problem. From the perspective of a fan of the First Amendment, the worse problem is that Texas and the Fifth Circuit have decided sites can't have free speech or free association any more. /end
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@popehat
@popehat
on x
Question for the Fifth Circuit: If a state law dictating how a social media site moderates is permissible and doesn't violate the site's First Amendment rights, what happens when California passes a law with requirements that contradict Texas' requirements?
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@justinlawguy
Justin
on x
CONSERVATIVES AREN'T WEAPONIZING THE FIRST AMENDMENT THEY JUST REALLY CARE ABOUT FREE SPEECH https://twitter.com/...
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@mjs_dc
Mark Joseph Stern
on x
The 5th Circuit is so desperate to punish Twitter for alleged anti-conservative bias that it has let Texas throw out the First Amendment and abolish social media companies' right to free speech and association. Absolutely wild stuff going on at this court.
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@arossp
@arossp
on x
It seems like the best way to handle it is to call their bluff. If I'm Facebook or Twitter, I'd just display a notice on the login screen for people accessing the service in Texas saying the platform is no longer available due to changes in Texas law. https://twitter.com/...
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@popehat
@popehat
on x
Wondering why the Texas social media law is such a big deal for big (over 50M users) social media companies? Let's look at two elements of it — the “anti-censorship” element, and the enforcement mechanism —from a litigator's view. There are other problems as well. /1
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@questauthority
Mike Dunford
on x
The platforms CANNOT simultaneously comply with EU hate speech laws and the Texan inanity that the 5th just endorsed. It is literally impossible to do so. One law requires that they carry content; the other forbids them from carrying that same content.
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@popehat
@popehat
on x
/4 And the site can clearly censor some other things. What other things? Well — I guess things that are not “viewpoint” based. What does that mean, exactly? And how easy is it to determine through litigation? Those are excellent questions, my friend.
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@benbrodydc
Ben Brody
on x
This is a huge “oh shit” moment for every social media legal department https://www.protocol.com/...
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@popehat
@popehat
on x
/5 See, I say that the site can censor other things because the law REQUIRES the site to post its “Acceptable Use Policy” about “the types of content allowed on the social media policy.” https://twitter.com/...
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@radleybalko
Radley Balko
on x
To cut to the chase here, this basically makes it impossible for social media companies to operate in the 5th Circuit. It's absolutely nutty. https://twitter.com/...
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@popehat
@popehat
on x
/11 This will be made easier because automated moderation on scale is always difficult and usually inconsistent and I will be able to point to other times when non-anti-Aquaman swears weren't punished. And people ALWAYS think they're being singled out. It's in the GOP Platform.
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@rmfifthcircuit
Raffi Melkonian
on x
This ruling is consistent with the statements made by Judges Oldham and Jones during the oral argument the other day.