Texas cites Clarence Thomas in defense of its social media law

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With technical teams asks the US Supreme Court to block New Texas law against social media ‘censorship’“The state’s defense rests in part on an opinion delivered last year by Judge Clarence Thomas in a case involving Donald Trump and Twitter.

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Thomas’ opinionlike us wrote at the timecriticized Section 230 legal protection afforded to online platform moderation decisions and argued that freedom of speech law should not necessarily prevent lawmakers from regulating these platforms as ordinary media.

“In many ways, the digital platforms that are presented to the public are reminiscent of traditional brick-and-mortar operators,” Thomas wrote. “Although digital and not physical, they are basically communication networks and ‘carry’ information from one user to another. The traditional telephone company laid physical wires to create a network that connected people. Digital platforms are laying down an information infrastructure that can be managed in much the same way.” The similarities between online platforms and brick-and-mortar carriers are “even more pronounced for digital platforms that dominate market share,” Thomas also wrote.

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The April 2021 opinion had no immediate practical implications. That was the concurring opinion in a case in which the Supreme Court vacated the 2019 appeals court. resolution it stated that then-President Donald Trump violated the First Amendment by blocking people on Twitter. The court declared the case “moot” because Trump was no longer president.

But at the time, Thomas’s opinion caused surprise, and it was quoted on Wednesday in Texas response to Big Tech’s attempt to block a state law preventing social media companies from moderating content based on a user’s “point of view”. With the help of Thomas’s opinion, Texas Attorney General Ken Paxton stated that Texas could regulate social media platforms like ordinary operators.

“Texas Law Declares Platforms Common Carriers”

“Even if the Hosting Rule somehow affects First Amendment rights for platforms, the Attorney General will likely win because Texas law declares platforms as shared carriers. Thus, the state can properly limit the ability of platforms to discriminate against their customers. Paxton retorted.

Pointing to historical examples of telegraphs, telephones, and cable operators, Paxton told the Supreme Court that “Texas has as much of an interest in the continued ability of its people to communicate and receive information on platforms as the states have with these previous generations of communications technology. .”

“There is little doubt that the platforms are sufficiently reminiscent of conventional service providers to justify the continued application of these principles, as Judge Thomas explained,” Paxton wrote, referring to Thomas’ concurring opinion in the Trump case. When asked “do platforms have market power”, Paxton quoted Thomas again, writing that “[s]all the lawyers have suggested that they think the platforms have that power.” Paxton also cited Thomas’ statement that social media had become “dominant digital platforms”.

Texas also invoked Thomas’s concurring opinion earlier in the trial when filing summaries in the lower courts.

Texas and Florida laws blocked by First Amendment

Despite Thomas’s views, the courts have held that the First Amendment does not ban sites from restricting speech on their platforms. Even after Thomas spoke his mind, Texas Law and similar in Florida were blocked by federal judges who ruled that the laws violated social media companies’ First Amendment right to moderate user-generated content. Besides, Section 230 of the Communications Decency Act It states explicitly that online platforms are not responsible for restricting access to content that the platforms deem objectionable “regardless of whether such material is constitutionally protected.”

Although the Texas law was initially blocked by a U.S. District Court judge under the First Amendment, it was revived last week United States Court of Appeals for the Fifth Circuit. Judges for the Fifth Circuit issued a one-sentence ruling that did not explain the reasons for the stay of the preliminary injunction. then big technical groups asked the Supreme Court restore the injunction to prevent Texas from enforcing the law while the lawsuit continues.

The Florida law remains blocked and the state is very interested in the outcome of the battle in Texas. Florida filed on Wednesday Summary of the Supreme Court support from Texas, and the Florida note was signed by 11 more states: Alabama, Alaska, Arizona, Arkansas, Iowa, Kentucky, Mississippi, Missouri, Montana, Nebraska and South Carolina.

“The Amici states have a strong interest in protecting sovereign state regulators in this area,” Florida said in a statement. “Indeed, many states have enacted or are considering laws that resemble those of Texas and Florida and believe the Fifth Circuit was right to hold off the district court’s injunction pending appeal.”

The Texas law covers social media platforms with “more than 50 million active users in the United States in a calendar month.” It states that “a social media platform cannot 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 to or otherwise discriminate against self-expression.” By law, users or the Texas Attorney General can sue platforms that violate the ban.

Texas claims the First Amendment does not apply

Texas’ summary argues that its law prohibiting “point of view” moderation does not violate the First Amendment because it “governs conduct, not words, specifically platform discriminatory refusal to provide or discriminatory reduction of service for classes of customers.” based on point of view. The First Amendment generally does not preclude restrictions on “conduct”, even if those restrictions “impose[e] random load on speech. Because the Hosting Rule simply requires the platforms to serve customers on a non-discriminatory basis, it is “perfectly legal for the government” even if the platform provides the service of “hosting another person’s speech”.

Texas said social media cannot rely on “editorial discretion” because “platforms have for years waived responsibility or editorial control over content created by their users.” Texas also argued that “the organization does not exercise ‘editorial discretion’ in controlling communications between third parties. from a rule that limits how they control how users communicate with each other.” The social platforms “were created specifically to host third-party performances and are “open to the public to come and go as they please,” Texas wrote.

Texas said his case is upheld by the Supreme Court. PrunesYard decision including a mall that prohibited visitors from participating in expressive activities not directly related to [the mall’s] commercial purposes,” which violated a California law that prohibits malls from violating the rights of visitors to “speak and petition.” Texas continued:

That court rejected the mall’s argument that it exercised the “First Amendment right not to be compelled by the state to use [its] property as a forum for the utterances of others.” This court concluded that California’s occupancy requirement did not violate the mall’s free speech rights for three reasons. First, because the mall was “open to the public, who could come and go as they pleased,” no reasonable observer would be able to connect the views of any speaker with that of the mall itself. Second, California did not require the mall to house a “specific message”; instead, state law applied equally to all potential speakers and messages. Thirdly, mall could still “outright refuse any association with” an unwanted speaker or message…

The platforms’ speech rights are no more infringed by the Hosting Rule than the mall’s speech rights at PruneYard are violated by California law. First, the platforms remain open to everyone. Second, HB 20 does not dictate any particular message that the platforms should post, only that they should treat their customers the same regardless of those customers’ stated point of view. And third, under HB 20, platforms are still free to disavow any association with spam—in fact, they already do so regularly.

Later, the Supreme Court “unanimously applied and expanded PrunesYardreasoning in FAIR [Rumsfeld v. Forum for Academic and Institutional Rights]explicitly stating that the speech hosting requirement governs the “behaviour, not speech” of the presenter,” Texas wrote.

Big Tech says precedents don’t support Texas

NetChoice and Computer & Communications & Industry Association (CCIA), major technology groups that have filed in the Supreme Court, stated in their resume what PrunesYard and Rumsfeld the cases do not justify the Texas theory. “None of the cases involved a private editorial choice of which speech to distribute,” write NetChoice and CCIA. “AT PrunesYardthe mall owner didn’t even claim to have objected to the content [speech]; the right of access was also not based on the content.” And FAIR distinguished the law school’s “conduct” of employment assistance from “a series of cases” where the court “limited the government’s ability to compel one speaker to accept or post another speaker’s message”.

The tech groups also said that “social media platforms are not common carriers and the First Amendment analysis would not change if they were.”

“Don’t keep too far[ing] yourself as giving neutral, indiscriminate access to their platform without any editorial filtering,” hard evidence suggests that platforms are constantly engaging in editorial filtering, providing a unique experience for each user and restricting both access to their platforms and how they can use the platforms.” they wrote, adding that Supreme Court precedents “recognize that the government cannot transform private organizations that make editorial judgments into conventional carriers.”

NetChoice and CCIA have received support from dozens of technology and advocacy groups who briefs stating that the Texas law grossly violates the rights of platform providers under the First Amendment. The groups argued that if the law were to go into effect, social media would “be powerless to regulate expressions praising terrorists and those involved in bloody campaigns, with horrific potential consequences if even one person engages in impersonation.” And they may be unable to protect children from age-inappropriate content, including objectionable messages that encourage our youth to engage in self-destructive activities.”

This story originally appeared on Ars Technique.

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Credit: www.wired.com /

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