‘Radical’ ruling allows Texas to ban social media moderation

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federal appeals The court reinstated a Texas law that prohibits “censorship” on social media platforms such as Facebook and Twitter, allowing Texas to enforce the law while the lawsuit continues.

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U.S. District Court Judge Issues Preliminary Injunction blocking the law in December, ruling that it violated social media’s right to moderate user-submitted content under the First Amendment. Texas Attorney General Ken Paxton appealed the injunction to the U.S. Court of Appeals for the Fifth Circuit, and a three-judge panel ruled. resolution Wednesday, which left a preliminary injunction.

The ruling did not explain the arguments of the judges. “Ordered to grant appellant’s objection to suspend preliminary injunctive relief pending appeal,” the order reads. The panel’s decision was not unanimous, but it did not state how each judge voted.

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The ruling is “strikingly radical”. said Corbin Barthold, Internet policy adviser for TechFreedom, a libertarian think tank, who filed the lawsuit. “Social media companies now face the prospect of responsibility for making distinctions based on ‘point of view’. (For example, treating pro-ISIS content differently than anti-ISIS content.) But there are many other difficulties in applying the law. No one – not lawyers, not judges, not experts in this field, not even the authors of the law themselves – know what the observance of this law looks like, ”said Barthold.

AT tweetPaxton called the decision “a BIG WINNER FOR BIG TECH”, adding: “I look forward to continuing to defend constitutionality HB 20“. State law states that “a social media platform may not censor a user” based on a user’s “point of view” and defines “censorship” as “blocking, banning, removing, deplatforming, demonetizing, deactivating, restricting, denying equal access or visibility or other discrimination in relation to self-expression”. The law says that the Attorney General of Texas or users can sue social media platforms that violate this ban and seek injunctive relief and reimbursement of legal fees.

Judges “Fighting basic technical concepts”

The oral argument took place on Monday this week and the judges “seemed to be wrestling with the basic technical concepts”. Protocol reported. The judges were skeptical of arguments put forward by technology industry groups NetChoice and the Computer, Communications and Industries Association (CCIA), which sued Texas to block the law. One “judge suggested that Twitter wasn’t even a website, and another questioned whether telephone companies have the First Amendment right to take people off their services,” the minutes wrote.

“Your customers are ISPs,” Judge Edith Jones told the NetChoice and CCIA attorney. “These are not websites.” The members of these two groups are actually almost entirely websites and online services, not ISPs – see NetChoice members. here and CCIA here. Amazon, eBay, Facebook, Google, Twitter and Yahoo are members of both groups.

At another point in the hearing, “Judge Andrew Oldham suggested that if the tech platforms were successful, it would allow telephone companies to disconnect users,” Protocol reported. “According to your theory, can Verizon decide that they will eavesdrop on every phone call … and when they hear a speech they don’t like, they cut off the phone call?” asked Oldham.

Telephone companies are classified as ordinary carriers and are regulated by the Federal Communications Commission. No such designation has been applied to websites, although Supreme Court Justice Clarence Thomas argued that digital platforms can be regulated like normal carriers.

CNN tech reporter Brian Fung also detailed the fifth circuit judges’ confusion in Thread on Twitter. Oldham called it “extraordinary” that Twitter has a First Amendment right to ban certain types of speech, even though the First Amendment’s guarantee of free speech rests with Congress, not private companies. Technology group lawyer Scott Keller noted that “when it comes to private entities, the government can’t dictate what they should and can’t distribute,” according to Fung’s report.

Jones was nominated by Reagan and Oldham was nominated by Trump. The third judge in the group, Leslie Southwick, was appointed by George W. Bush.

Technical groups can appeal or go to court

NetChoice and CCIA can search in full force a hearing with all the judges of the court or, ultimately, an appeal to the Supreme Court. They could also await trial in the US District Court for the Western District of Texas, where Judge Robert Pitman granted a preliminary injunction. Pitman found that Texas law “obliges social media platforms to distribute objectionable content and unacceptably restricts their editorial discretion” and that the law’s “bans on ‘censorship’ and restrictions on the distribution of content by social media platforms violate the First Amendment.”

NetChoice called the ruling to set aside Pitman’s decision is “highly unusual” because the panel “set aside the district court’s injunction against HB 20 without making a decision on the merits or issuing a written decision. Given the unprecedented move, NetChoice and CCIA are evaluating our legal options.”

“Separation order 2-1, issued May 11, No consider the merits of the claim – in other words, the court did not assess the constitutionality of HB 20; instead, the court allows the law to take effect while the case is pending in a lower court. In practical terms, this means that the district court can decide on the merits and find HB 20 unconstitutional – although the law is in force, ”writes NetChoice.

Here is another summary Pitman’s solution from our previous coverage:

Under Texas law, a platform that flags a post as misinformation “may discriminate against that user’s point of view by adding their own disclaimer,” Pitman wrote. Thus, the law “restricts the First Amendment right of social media platforms to express opinions when they disagree with or object to content.”

The threat of lawsuits for violating state law “cools the free speech rights of social media platforms.” Pitman also found that the law’s disclosure and operational requirements impose a burden on social media platforms’ editorial discretion and that the law “discriminates based on content and speaker.”

Pitman noted that Texas lawmakers excluded conservative social networks Parler and Gab, only applying the law to platforms with 50 million or more monthly active users in the US. Pitman wrote that one state senator “proposed unsuccessfully to lower the threshold to 25 million monthly users to enable” sites like Parler and Gab.

There are exceptions in the law to allow companies to moderate any post that “the social media platform is specifically authorized to censor under federal law; is the subject of a referral or request from an organization to prevent the sexual exploitation of children and protect victims of sexual abuse from ongoing harassment; directly incites criminal activity or consists of specific threats of violence directed against a person or group of persons because of their race, color, disability, religion, national origin or descent, age, sex, or status as an enforcer or judge; or is an illegal expression.”

“No option is being considered”

“This inexplicable order is contrary to the established First Amendment Act,” CCIA President Matt Schruers said in a statement. said. “No option is being considered. We will do everything necessary to ensure that the free market, and not government decree, decides what to do and what not to distribute to speech digital services.”

When Texas law was entered into force in September 2021industry groups said the law could force social media to post misinformation and incite hatred, and that it “seeks to punish social media companies for enforcing policies that protect Internet users from dangerous online content.”

NetChoice and CCIA separately win injunctive relief Florida law blocking it would make it illegal for major social networks like Facebook and Twitter to ban politicians and impose other restrictions on tech companies. Florida appealed the injunction to the United States Court of Appeals for the Eleventh Circuit. Oral arguments were will take place on April 28and the decision has not yet been made.

This story originally appeared on Ars Technique.

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