A ‘radical’ ruling sees Texas ban social media moderation

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A federal appeal court reinstated a Texas state law banning “censorship” on social media platforms such as Facebook and Twitter, allowing Texas to enforce the law while the trial continues.

A U.S. district court judge issued a preliminary injunction in December blocking the law, finding it violates social networks’ First Amendment right to moderate user-submitted content. Texas Attorney General Ken Paxton appealed the order to the U.S. Court of Appeals for the Fifth Circuit, and a panel of three judges issued a ruling Wednesday suspending the preliminary injunction.

The ruling does not explain the reasoning of the judges. “It is ordered that the appellant’s objection to suspend the preliminary injunction pending appeal is allowed,” the ruling said. The panel’s ruling was not unanimous, but it didn’t say how each judge voted.

The ruling is “surprisingly radical,” said Corbin Barthold, an internet policy advisor at TechFreedom, a libertarian think tank that has filed for summary judgment in the lawsuit. “Social media companies now face liability for making distinctions based on ‘point of view’. (For example, treating pro-ISIS content differently from anti-ISIS content.) But there are many other difficulties in applying this law. No one — no lawyers, no judges, no experts in the field, not even the law’s own sponsors — knows what compliance with this law looks like,” Barthold said.

In a tweet, Paxton called the ruling a “BIG WIN against BIG TECH”, adding: “I look forward to continuing to defend the constitutionality of HB 20.” The state law says that a “social media platform must not censor a user” based on the user’s “point of view” and defines “censorship” as “block, ban, delete, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against speech.” The Texas Attorney General or users can sue social media platforms that violate this prohibition and obtain injunctive relief and court costs, the law says.

Judges struggle with basic technical concepts

Oral pleadings were held on Monday this week, and the judges “appeared to struggle with basic technical concepts,” Protocol reported. The judges were skeptical of the arguments from NetChoice and the Computer & Communications & Industry Association (CCIA), which sued Texas for blocking the bill. One “judge suggested that Twitter isn’t even a website, and another questioned whether phone companies have the right to kick people off their services,” Protocol wrote.

“Your customers are Internet service providers,” Judge Edith Jones reportedly told NetChoice’s and CCIA’s attorney. “They are not websites.” The members of the two groups are in fact almost entirely websites and online services rather than Internet service providers – see NetChoice’s members here and CCIAs here. Amazon, eBay, Facebook, Google, Twitter, and Yahoo are all 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 fire users,” Protocol reported. “By your theory, can Verizon decide that they will eavesdrop on every phone call…and when they hear speech they don’t like, they end the phone call?” asked Oldham.

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

CNN tech reporter Brian Fung also detailed the confusion of the Fifth Circuit judges in a Twitter thread† Oldham called it “extraordinary” that Twitter has the First Amendment right to ban certain kinds of speech, even though the First Amendment’s free speech is imposed on Congress and not on private companies. The tech groups’ attorney, Scott Keller, pointed out that “when it comes to private entities, the government shouldn’t dictate what to distribute, what they cannot distribute,” according to Fung’s account.

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