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Social Networks The Internet Government The Courts

Federal Court Blocks Texas' Unconstitutional Social Media Law (eff.org) 292

An anonymous reader quotes a report from the Electronic Frontier Foundation: On December 1, hours before Texas' social media law, HB 20, was slated to go into effect, a federal court in Texas blocked it for violating the First Amendment. Like a similar law in Florida, which was blocked and is now pending before the Eleventh Circuit Court of Appeals, the Texas law will go to the Fifth Circuit. These laws are retaliatory, obviously unconstitutional, and EFF will continue advocating that courts stop them. In October, EFF filed an amicus brief against HB 20 in Netchoice v. Paxton, a challenge to the law brought by two associations of tech companies. HB 20 prohibits large social media platforms from removing or moderating content based on the viewpoint of the user. We argued, and the federal court agreed, that the government cannot regulate the editorial decisions made by online platforms about what content they host. As the judge wrote, platforms' right under the First Amendment to moderate content "has repeatedly been recognized by courts." Social media platforms are not "common carriers" that transmit speech without curation.

Moreover, Texas explicitly passed HB 20 to stop social media companies' purported discrimination against conservative users. The court explained that this "announced purpose of balancing the discussion" is precisely the kind of government manipulation of public discourse that the First Amendment forbids. As EFF's brief explained, the government can't retaliate against disfavored speakers and promote favored ones. Moreover, HB 20 would destroy or prevent the emergence of even large conservative platforms, as they would have to accept user speech from across the political spectrum. HB 20 also imposed transparency requirements and user complaint procedures on large platforms. While these kinds of government mandates might be appropriate when carefully crafted -- and separated from editorial restrictions or government retaliation -- they are not here. The court noted that companies like YouTube and Facebook remove millions of pieces of user content a month. It further noted Facebook's declaration in the case that it would be "impossible" to establish a system by December 1 compliant with the bill's requirements for that many removals. Platforms would simply stop removing content to avoid violating HB 20 -- an impermissible chill of First Amendment rights.

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Federal Court Blocks Texas' Unconstitutional Social Media Law

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  • So there needs to be new guidance for when a private platform services so many people that it is now public utility.

    • by Freischutz ( 4776131 ) on Thursday December 16, 2021 @09:21AM (#62086159)

      So there needs to be new guidance for when a private platform services so many people that it is now public utility.

      The vast majority of widely circulated speech has been on private platforms since the invention of the newspaper. If you don't like the speech on your current private platform, say, Facebook, find another private platform that has speech more to your liking like, say, Parler. That's the way it has been up until now and that's the way it should continue to be.

      • by chill ( 34294 )

        MySpace FTW! Tom Anderson forever!

      • If you don't like the speech on your current private platform, say, Facebook, find another private platform that has speech more to your liking like, say, Pravda

        FTFY

        • by AmiMoJo ( 196126 )

          I think the American version is called "TRUTH Social".

          • I think the American version is called "TRUTH Social".

            And if there is one thing that life has taught me, anything that bandies about words like "Truth" "Freedom" and other such words have an extremely strong tendency to be the opposite.

            In other news, his vaporware company is already under investigation before launching. Seems there was some shady stuff going on back at it's formation.

        • by flink ( 18449 )

          Old joke from right after the fall of the USSR:

          Well, it turns out the Communist part lied to us about communism, but what's even worse is they were telling the truth about capitalism.

      • Re: (Score:3, Funny)

        by Lonewolf666 ( 259450 )

        That sounds like a good way to create more filter bubbles. Say, Facebook AKA Meta allows no conservative speech, then you get a sort of leftist filter bubble. Meanwhile, the right-wing wackos concentrate on a place like Parler, where no one will contradict their ideas.

        Besides, there is the problem that even the platform itself may have their tools thrown from app stores, which makes it more difficult to run it. See
        https://www.dailysignal.com/2021/01/12/what-you-need-to-know-about-big-techs-crackdown-on-trum [dailysignal.com]

        • by cpt kangarooski ( 3773 ) on Thursday December 16, 2021 @10:12AM (#62086321) Homepage

          "Filter bubbles" fall within the protection of the First Amendment. The publisher of the Daily Worker did not have to carry columns by fascists; the publisher of the Deutscher Weckruf did not have to carry columns by communists. (But happily the latter did get shut down when the war broke out)

        • by AmiMoJo ( 196126 ) on Thursday December 16, 2021 @10:26AM (#62086367) Homepage Journal

          Interesting that you would use Facebook as an example, when Facebook is actually very friendly to conservatives.

          https://www.politico.com/news/... [politico.com]

          Twitter is a bit more balanced, but also 1/10th the size of Facebook.

        • You bring up a good point. Why isn't Ilhan Omar suing to have an account on Truth Social or Parler? Aren't they discriminating against liberal views?

        • I remember once upon a time that nerds were excited about filter bubbles. Like remember that company that made a dvd player that let you edit pieces out of movies? And you could download other people's edits? The whole idea was that instead of asking the world to mold itself to your preferences you'd control what you consumed and nobody else had to lose anything to make you happy. Hollywood had it destroyed because it was somehow a threat to their business model or something.

        • That sounds like a good way to create more filter bubbles. Say, Facebook AKA Meta allows no conservative speech, then you get a sort of leftist filter bubble. Meanwhile, the right-wing wackos concentrate on a place like Parler, where no one will contradict their ideas.

          Besides, there is the problem that even the platform itself may have their tools thrown from app stores, which makes it more difficult to run it. See https://www.dailysignal.com/2021/01/12/what-you-need-to-know-about-big-techs-crackdown-on-trump-parler/ [dailysignal.com].

          If that extends to ISPs, one might even be forced to go outside the US. And wouldn't that be fun if US conservatives end up hosting Parler somewhere in Russia?

          Maybe it's because I grew up back in the days when there were still party rags, but what you are describing isn't all that new. I still remember lefties and fascist types coming to blows in the company canteen over politics and having to be physically and forcibly dragged apart by the centrists.

      • by mjwx ( 966435 ) on Thursday December 16, 2021 @10:08AM (#62086311)

        So there needs to be new guidance for when a private platform services so many people that it is now public utility.

        The vast majority of widely circulated speech has been on private platforms since the invention of the newspaper. If you don't like the speech on your current private platform, say, Facebook, find another private platform that has speech more to your liking like, say, Parler. That's the way it has been up until now and that's the way it should continue to be.

        But there in lies the problem. They've always known they could have their own platform but everyone else would ignore that platform. Essentially no-one would be forced to listen to them. What they want is the freedom to speak on whatever platform they like but for it to be forbidden for anyone to criticise them.

        The problem with Parler and other such platforms isn't that they are an echo chamber, it's that they are a very small echo chamber... What they crave is a very large echo chamber where no-one can contradict them.

        In other words... how are they supposed to "own the libs" when everyone is quite literally ignoring them.

        On a more serious note, in British parlance we say "their gaff, their rules" which simply means the owner of the pub gets to set the rules. What is implied is, that if patrons do not like said rules we can go to another pub. This prevents the pub owner from becoming tyrannical and helps filter out the patrons who find simple courtesy too onerous. It's a win-win in my book.

        • So there needs to be new guidance for when a private platform services so many people that it is now public utility.

          The vast majority of widely circulated speech has been on private platforms since the invention of the newspaper. If you don't like the speech on your current private platform, say, Facebook, find another private platform that has speech more to your liking like, say, Parler. That's the way it has been up until now and that's the way it should continue to be.

          But there in lies the problem. They've always known they could have their own platform but everyone else would ignore that platform. Essentially no-one would be forced to listen to them. What they want is the freedom to speak on whatever platform they like but for it to be forbidden for anyone to criticise them. The problem with Parler and other such platforms isn't that they are an echo chamber, it's that they are a very small echo chamber... What they crave is a very large echo chamber where no-one can contradict them. In other words... how are they supposed to "own the libs" when everyone is quite literally ignoring them. On a more serious note, in British parlance we say "their gaff, their rules" which simply means the owner of the pub gets to set the rules. What is implied is, that if patrons do not like said rules we can go to another pub. This prevents the pub owner from becoming tyrannical and helps filter out the patrons who find simple courtesy too onerous. It's a win-win in my book.

          I'm not so sure about the echo chamber thing. Back in they days of yore, the Tory read the Times, went to Tory party events and talked about how the nation would perish if martial law was not imposed this instant so that the communist agitators could be shot for the good of the nation. Meanwhile the Socialist read the Daily Worker, went to Labour party events and talked about how the nation would perish if the revolution did not come instant so that the Imperialist oppressors could be shot for the good of t

          • by shilly ( 142940 )

            But they both watched the same telly and listened to the same radio, which was bound by fairly effective impartiality rules and so told something approximating the truth. And they did this in huge numbers, too.

        • by shipofgold ( 911683 ) on Thursday December 16, 2021 @10:51AM (#62086471)

          The problem with Parler and other such platforms isn't that they are an echo chamber, it's that they are a very small echo chamber... What they crave is a very large echo chamber where no-one can contradict them.

          You are 100% correct. And the idiots had their echo chamber until they got dangerous.

          The problem with Parler and others that got them booted was that their users created dangerous situations and that was the straw that broke the camel's back. Idiots raided the Capitol partly because of what they heard on Parler. Parler users and their lies also have caused the AntiVaxxers to surge which is also dangerous. People have died because of their echo chamber.

          Google/Apple didn't boot them because they didn't like what they said...they have been actually very tolerant. They got booted when things got dangerous and that is how a civil society should operate. Just like you can't yell 'fire' in a crowded theatre, danger to others trumps your right to spout lies.

          I know the argument is "who should judge when things are dangerous?". At this moment the private entities are well suited to do that. Sorry you can't have your wedding cake (as you legislated) and eat it too.

        • by Bigbutt ( 65939 )

          This is what I was thinking as well. It's not that Conservatives don't have their own conservative social media, it's that they can't "own the libs". You can't troll your own kind, they already believe you. Where's the fun in that?

          [John]

    • by thaylin ( 555395 )

      These have nothing to do with utilities. They are not a natural monopoly, they are not a governmental monopoly. They do not provide any service that tend to support a natural monopoly. You just want to remove their free speech.

    • And having the federal government seize private property? Because that's effectively what you're calling for if you're going to adjust the laws so that Twitter and Facebook and the rest cannot exercise any control over their platform. If your goal is Free speech you won't get it by repealing section 230 of the CDA. If you require Twitter and Facebook to carry any and all speech they will be inundated with professional trolls who will prevent ideas that are not in favor of the establishment. Remember the e
    • Given that this is Texas, all they need to do is pass a law allowing private citizens to sue social media networks for statutory damages of at least $10,000 for deplatforming someone. They could call it SB 8 1/2.
  • So, Florida is just GIVING UP it's dunce cap of ignorance that it worked so hard to create and earn? I mean, one of the mid-eastern states started throwing down with the "bathroom bills" which was a shot across their bow. Doubling down on no voting rights for felons that have done their time and banning controlling entry of mask-less minors to major crowded venues light school type of asshatery brought them back to the lead

    We're about 3 really good "Texas Man" stories away from Florida just giving up t
    • Private business: We want to require employees to wear masks.
      DeSantis: I created a law saying you can't do that.
      Private business: We want to fire anyone at any time.
      DeSantis: Go right ahead!
      Private business: We're firing people who aren't vaccinated.
      DeSantis: *head explodes*

    • I vote that we just get Georgia, Alabama, Mississippi, and Louisiana out of the way and let Texas and Florida have at it.

  • So how does Texas' legislature square this with proposed changes to section 230 of the Communications Decency Act to make social media platforms responsible for user content? It's one or the other, boys and girls.

  • by Acron ( 1253166 )

    Companies are not human beings, so they do not innately gain constitutional protection merely be existing. If the ruling is based on "balancing" manipulating "public discourse" being bad, hasn't he court essentially arguing that these companies are public spaces? Which would protect individual speech on these platforms, which is what this law seeks to do. And anything that will move towards 230 being struck down or removed is a good outcome, as it would replace inflexible government regulations with nuan

  • Conservative social platforms have tended to be echo chambers.

    While the true believers won't have their narrative spoiled by the libs, it turns out that even with the high threshold for boredom that modern crypto conservatives have, if they can't yell at the libs in all caps, ready to rumble mode, they lose interest.

  • Irony (Score:4, Insightful)

    by ggraham412 ( 1492023 ) on Thursday December 16, 2021 @11:51AM (#62086707)
    I find it ironic that a ruling making it easier for social media companies to kick users off their platforms is hailed as a victory for free speech.
    • Re:Irony (Score:5, Insightful)

      by quantaman ( 517394 ) on Thursday December 16, 2021 @01:19PM (#62087147)

      I find it ironic that a ruling making it easier for social media companies to kick users off their platforms is hailed as a victory for free speech.

      Yes it is, because the ability to moderate your private platform is an important aspect of free speech. Particularly when you're targeting things like harassment that make it difficult for other people to exercise their right to free speech.

      What "conservatives" (actually trolls) are whining about here is the inability to force other people to host and amplify their speech. They're still free to make that speech as Gab, Parler, and Trump's new thing have demonstrated that there's no shortage of platforms willing to host that speech.

      The problem is they don't like those platforms because no one uses them. Why doesn't anyone use them? Because users don't like using platforms filled with trolls. One of the reasons why Twitter and FB remain popular is they're making efforts to rid their platforms of these trolls who are now trying to force themselves back on through legislative action.

    • Re:Irony (Score:4, Insightful)

      by thegarbz ( 1787294 ) on Thursday December 16, 2021 @02:57PM (#62087631)

      I find it ironic that a ruling making it easier for social media companies to kick users off their platforms is hailed as a victory for free speech.

      You think forcing someone to publish something against their will is better? The fact you think this is ironic means you really don't fundamentally understand free speech at all.

      Hint: It's the right to "freedom of speech" not "freedom of speech for me but fuck your rights".

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