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Five things to know about the Texas social media law
rfenst Offline
#1 Posted:
Joined: 06-23-2007
Posts: 39,100
The Hill
The Supreme Court is seen with extra barriers on Wednesday, May 25, 2022 in preparation for a ruling in Whole Women’s Health v. Jackson which could strike Roe v. Wade. The court has until the end of June before their annual summer break to announce decisions.

Texas’s law that restricts social media platforms’ ability to remove users or violative content was temporarily blocked by the Supreme Court on Tuesday, but it’s not the end of the road for the case that may wind up back before the justices.

The ongoing challenge to the Texas law, and to a similar measure in Florida, is providing a test for how First Amendment protections should be applied in the internet age.

Here are five things to know about the law and the Supreme Court’s 5-4 ruling.

How could the law keep companies from moderating content?
Texas’s law, HB 20, forbids social media companies with more than 50 million monthly users from banning Texas-based users over their political views. Gov. Greg Abbott (R) signed it in September, after it passed in the Republican-controlled legislature. The state Republicans branded it as an anti-censorship law, reflecting growing GOP accusations that mainstream platforms are removing content and users with an anti-conservative bias.

But critics of the Texas law — including tech industry groups and a broad coalition of civil society groups — say in practice it would lead to a more dangerous internet environment by interfering with platforms’ ability to remove content that violates platform policies such as pro-terrorist content, animal abuse, pornography and hate speech.

“The heart of the law, which is this must-carry provision that would prohibit the platforms from taking down content, that part of the law will be very problematic for the free speech not only of the platforms, but also of users because it would mean that you would have users subjected to all kinds of content that nobody wants to see no matter what political stripe they have,” said Scott Wilkens, senior staff attorney at the Knight First Amendment Institute at Columbia University.

Experts also say the law would open the floodgates for lawsuits from users accusing tech platforms of taking action against them based on their political views.

NetChoice and the Computer & Communications Industry Association (CCIA), tech groups that count industry giants such as Facebook, Amazon and Google among their members, challenged the law on the basis that it violates the First Amendment rights of the private companies to moderate content in line with their own policies.

How did the case reach the Supreme Court, and how did the justices vote?
The tech groups challenging the Texas law had a mixed record in the lower courts.

In December, a federal judge handed a win to the tech groups by temporarily blocking the Texas law from being enforced. In a 30-page opinion issuing a preliminary injunction, U.S. District Judge Robert Pitman found that the tech groups were likely to ultimately win on the merits.

“In this case, content moderation and curation will benefit users and the public by reducing harmful content and providing a safe, useful service,” wrote Pitman, an Obama appointee. “Here, an injunction will serve, not be adverse to, the public interest.”

But last month, a three-judge panel on the U.S. Court of Appeals for the 5th Circuit halted that ruling without explanation, prompting the tech groups to file an emergency request to the Supreme Court.

The justices’ brief order Tuesday reversing the 5th Circuit came from a five-member majority comprising two of the court’s three liberal members: Justices Stephen Breyer and Sonia Sotomayor. They were joined by Chief Justice John Roberts and his fellow conservatives Brett Kavanaugh and Amy Coney Barrett.

Liberal Justice Elena Kagan indicated that she would have denied the tech groups’ request but provided no rationale. Notably, Kagan did not join a dissenting opinion endorsed by the court’s three most conservative members.

In a dissent penned by Justice Samuel Alito and joined by Justices Clarence Thomas and Neil Gorsuch, the hard-line conservatives made clear their view that the Supreme Court should have left intact the 5th Circuit’s ruling.

Although the dissenters stopped short of making explicit their views on the merits of the underlying legal issues, some court watchers believe the most conservative justices appear inclined to side with Texas if the case returns to the Supreme Court.

What happens next in the legal challenge?
The case now returns to the 5th Circuit, which will weigh the merits of Texas’s appeal. If the deeply conservative 5th Circuit ultimately sides with Texas — as some experts believe it will — the tech groups would be expected to file a formal appeal to the Supreme Court.

In this scenario, the justices would be highly likely to take up the case, perhaps as soon as the court’s next term that begins in October. If the 5th Circuit sides with Texas, its ruling would clash with a decision by the Atlanta-based U.S. Court of Appeals for the 11th Circuit, which just last month ruled in favor of the tech groups by finding that a similar Florida law was likely unconstitutional, teeing up what’s known as a “circuit split.”

The Supreme Court is often inclined to grant review in cases of circuit splits in order to provide a nationally uniform interpretation of federal law. Such clarity would be especially important in the area of online platforms, experts said, where a patchwork of different rules across the country would be unworkable.

“When you have a circuit split about something like the internet … I think that really increases the chances that the Supreme Court will hold arguments and issue a normal opinion, not on the shadow docket, where they determine, ‘OK, what are the First Amendment principles that we apply when the government tries to restrict the ability of private online platforms to monitoring?’” said Jeff Kosseff, a professor of cybersecurity law at the U.S. Naval Academy.

“You can’t have different internet in the 5th Circuit and the 11th Circuit. That’s not a viable way to operate platforms,” he added. “You do need to have an understanding of what the rules are.”

What does the ruling signal for the future of the law?
The Supreme Court’s order Tuesday revealed little about how the court might rule if the case winds up on its docket next term. Neither the five-justice majority nor Kagan offered any explanation of their views, and it’s possible their votes turned entirely on procedural, rather than substantive, considerations.

The key votes may ultimately come down to Kavanaugh and Barrett, according to Kosseff, of the U.S. Naval Academy, who said tech companies may be heartened that the pair voted in their favor.

“I think that it’s at least a good sign for the tech companies that you had Kavanaugh and Barrett voting on their side,” he said, but cautioned, “I think that it’s hard to read too much into how the justices would vote in such a case based on this ruling.”

Even the three hard-line conservative justices who wrote in dissent stopped short of clearly telegraphing their views on the merits of the Texas law, though some experts say it’s likely they would rule in favor of states seeking to tighten regulations.

Among the dissenters, Texas is almost certain to find a sympathetic audience in Thomas, who last year wrote a solo opinion expressing concerns about the highly concentrated power of Big Tech. In this unrelated case, Thomas entertained an argument that is now central to Texas’s defense against the ongoing challenge to HB 20.

“There is a fair argument that some digital platforms are sufficiently akin to common carriers or places of accommodation to be regulated in this manner,” Thomas wrote in his solo opinion.

Texas’s legal position hinges on this very argument — that social media platforms should be seen as common carriers, essentially passive channels of communication, rather than being treated as akin to newspapers. Under law, common carriers enjoy fewer constitutional protections, if any.

Critics of the Texas law have argued the position is weak because the platforms have not acted as common carriers in the past and that they should be treated more like newspapers that are making editorial decisions about what content to host.

Alito, for his part, wrote in his dissent Tuesday that it is “not at all obvious how our existing precedents, which predate the age of the internet, should apply to large social media companies.”

What is happening in other states?
Florida passed a similar law last year that is also being challenged by NetChoice and the CCIA, the same plaintiffs as in the Texas case. In a ruling last week, the Atlanta-based 11th Circuit affirmed a lower court’s finding that major provisions of the Florida law, including a requirement that companies carry speech and content that violates their policies, were likely unconstitutional.

The opinion of the three-judge panel was written by Trump-appointed Judge Kevin Newsom, a well-respected jurist in conservative Federalist Society circles.

But the appellate court also reinstated other parts of the law, including a provision that would require social media platforms to allow deplatformed users to access their own data stored on the platform’s servers for at least 60 days.

Lawmakers in other states are following Texas and Florida in seeking to restrict Big Tech. Georgia’s state Senate earlier this year passed a bill similar to those now being challenged, and Alaska, Ohio and Tennessee are proceeding with their own similar proposals.

“What the courts do with the Florida and the Texas laws is likely to influence what happens to the similar laws that are enacted and in other states,” Wilkens said.
rfenst Offline
#2 Posted:
Joined: 06-23-2007
Posts: 39,100
Supreme Court Blocks Texas Law Regulating Social Media Platforms

The law, prompted by conservative complaints about censorship, prohibits big technology companies like Facebook and Twitter from removing posts based on the views they express.


NYT

WASHINGTON — The Supreme Court on Tuesday blocked a Texas law that would ban large social media companies from removing posts based on the views they express.

The court’s brief order was unsigned and gave no reasons, which is typical when the justices act on emergency applications. The order was not the last word in the case, which is pending before a federal appeals court and may return to the Supreme Court.

The vote was 5 to 4, with an unusual coalition in dissent. The court’s three most conservative members — Justices Samuel A. Alito Jr., Clarence Thomas and Neil M. Gorsuch — filed a dissent saying they would have let stand, for now at least, an appeals court order that left the law in place while the case moved forward. Justice Elena Kagan, a liberal, also said she would have let the order stand, though she did not join the dissent and gave no reasons of her own.

Justice Alito wrote that the issues were so novel and significant that the Supreme Court would have to consider them at some point.

“This application concerns issues of great importance that will plainly merit this court’s review,” he wrote. “Social media platforms have transformed the way people communicate with each other and obtain news. At issue is a groundbreaking Texas law that addresses the power of dominant social media corporations to shape public discussion of the important issues of the day.”

Justice Alito said he was skeptical of the argument that the social media companies have editorial discretion protected by the First Amendment like that enjoyed by newspapers and other traditional publishers.

“It is not at all obvious,” he wrote, “how our existing precedents, which predate the age of the internet, should apply to large social media companies.”

The law’s supporters said the measure was an attempt to combat what they called Silicon Valley censorship, saying major platforms had removed posts expressing conservative views. The law was prompted in part by the decisions of some platforms to bar President Donald J. Trump after the Jan. 6, 2021, attack on the Capitol.

The law, H.B. 20, applies to social media platforms with more than 50 million active monthly users, including Facebook, Twitter and YouTube. It does not appear to reach smaller platforms that appeal to conservatives, like Truth Social and Gettr, the law’s challengers told the Supreme Court.

The law also does not cover sites that are devoted to news, sports, entertainment and other information that their users do not primarily generate. The covered sites are largely prohibited from removing posts based on the viewpoints they express, with exceptions for the sexual exploitation of children, incitement of criminal activity and some threats of violence.

According to two trade groups that challenged the law, the measure “would compel platforms to disseminate all sorts of objectionable viewpoints — such as Russia’s propaganda claiming that its invasion of Ukraine is justified, ISIS propaganda claiming that extremism is warranted, neo-Nazi or K.K.K. screeds denying or supporting the Holocaust, and encouraging children to engage in risky or unhealthy behavior like eating disorders.”

The law requires platforms to be treated as common carriers that must convey essentially all of their users’ messages rather than as publishers with editorial discretion.

In a separate case last week, the U.S. Court of Appeals for the 11th Circuit largely upheld a preliminary injunction against a similar Florida law.

“Social media platforms exercise editorial judgment that is inherently expressive,” Judge Kevin C. Newsom wrote for the panel. “When platforms choose to remove users or posts, deprioritize content in viewers’ feeds or search results, or sanction breaches of their community standards, they engage in First Amendment-protected activity.”

The First Amendment generally prohibits government restrictions on speech based on content and viewpoint. In their emergency application to the Supreme Court, the trade groups challenging the Texas law said it ran afoul of those principles at every turn. “H.B. 20 is a flatly unconstitutional law that compels government-preferred speech from select private entities and would require enormous upheaval to the worldwide operations of covered internet websites,” the application said.

In response to the emergency application, Ken Paxton, Texas’ attorney general, wrote that “the platforms are the 21st-century descendants of telegraph and telephone companies: that is, traditional common carriers.” That means, Mr. Paxton wrote, that they must generally accept all customers.

Judge Robert Pitman of the Federal District Court in Austin issued a preliminary injunction blocking the law in December. “Social media companies have a First Amendment right to moderate content disseminated on their platforms,” wrote Judge Pitman, who was appointed by President Barack Obama.

The state’s appeal was argued on May 9 in the U.S. Court of Appeals for the Fifth Circuit. Two days later, a divided three-judge panel of the court stayed Judge Pitman’s injunction and allowed the law to go into effect. The panel has not yet issued a ruling on the merits of the appeal.

The members of the panel — Judge Edith H. Jones, who was appointed by President Ronald Reagan; Judge Leslie H. Southwick, who was appointed by President George W. Bush; and Judge Andrew S. Oldham, who was appointed by Mr. Trump — gave no reasons for their votes, saying only that “the panel is not unanimous.”

The trade groups challenging the Texas law — NetChoice and the Computer & Communications Industry Association — are represented by prominent conservative lawyers, including Scott A. Keller and Kyle Hawkins, who served as solicitors general of Texas, and Paul D. Clement, who served as U.S. solicitor general in Mr. Bush’s administration. In their emergency application to the Supreme Court, they wrote that social media companies’ content moderation policies were crucial to their identities and missions.

“Without these policies,” they wrote, “these websites would become barnacled with slurs, pornography, spam and material harmful to children.”


Adam Liptak covers the Supreme Court and writes Sidebar, a column on legal developments. A graduate of Yale Law School, he practiced law for 14 years before joining The Times in 2002.
Brewha Offline
#3 Posted:
Joined: 01-25-2010
Posts: 12,147
I thought Truth Social fixed all this.....
Speyside2 Offline
#4 Posted:
Joined: 11-11-2021
Posts: 2,304
Very interesting and thought provoking to say the least Robert.
rfenst Offline
#5 Posted:
Joined: 06-23-2007
Posts: 39,100
Supreme Court Gives Tech Industry Reprieve From Texas Social-Media Law

Law would allow people to sue online platforms if blocked online because of their viewpoints

WSJ

The Supreme Court on Tuesday blocked Texas from immediately enforcing a new state law that aims to prohibit large social-media platforms from suppressing users’ posts based on the content of their speech.

The court, in a brief written order, granted an emergency request by a pair of leading tech-industry trade groups to put the law on hold for now while they challenge it in court.

The groups warned the law would unleash a torrent of hate speech and misinformation on their platforms.

The court’s order came on a 5-4 vote. As is customary for the court’s emergency orders, the majority didn’t explain its reasoning.

Justice Samuel Alito filed a dissent joined by Justices Clarence Thomas and Neil Gorsuch. Justice Elena Kagan also dissented, but she didn’t join the Alito opinion or file her own.

The high court’s action comes in a significant First Amendment case that tests governmental power in setting rules for online discourse, exposing tensions between individual free expression and the constitutional speech rights of internet giants.

The Texas regulations prohibit social-media platforms with at least 50 million monthly active users from censoring users based on their viewpoints, applying to sites including Facebook, Instagram, Pinterest, TikTok, Twitter, Vimeo and YouTube.

The law allows Texas residents, or anyone doing business in the state, to sue platforms for alleged violations and seek court orders against content removal. It also vests enforcement authority with the state attorney general. The law permits plaintiffs to seek injunctive relief and attorneys’ fees, but not damages.

Other battles are moving through the courts, including over a similar law in Florida that has been put on hold during litigation.

Regardless of the preliminary rulings, the future of state regulation of online speech is an issue the Supreme Court likely will have to grapple with more deeply in the months or years ahead.

Republicans backing the Texas law charged that social-media content moderators and their content-screening algorithms were using their far-reaching influence over public debate to silence conservatives and controversial viewpoints, claims that leading tech companies have denied.

Texas Attorney General Ken Paxton, a Republican, didn’t immediately respond to a request for comment.

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Trade groups representing tech giants decried the law as an unconstitutional assault on their own freedom of speech and business practices.

“This ruling means that private American companies will have an opportunity to be heard in court before they are forced to disseminate vile, abusive or extremist content under this Texas law,” said Matt Schruers, president of the Computer & Communications Industry Association, one of the groups that sued the state.

“No online platform, website, or newspaper should be directed by government officials to carry certain speech,” Mr. Schruers said.

A federal district judge in Austin last December held that social-media platforms have a First Amendment right to moderate content disseminated on their platforms and issued a preliminary injunction that suspended enforcement of the law, known as HB 20.

But on May 11, a divided three-judge panel of the Fifth U.S. Circuit Court of Appeals, in New Orleans, issued a stay that allowed Texas to begin enforcing the regulations while the litigation continued. The Supreme Court’s order nullified the stay, meaning the Texas law will likely remain on hold at least for several more months. The court’s order isn’t a ruling on the legality of HB 20.

In addition to First Amendment issues, the case raises questions about whether the Texas law is pre-empted by longstanding federal legal protections for online platforms. Section 230 of the Communications Decency Act of 1996 gave internet platforms broad ability to police their sites as they see fit.

In his dissent, Justice Alito argued it was premature for the Supreme Court to intervene in litigation over “a ground-breaking Texas law that addresses the power of dominant social media corporations to shape public discussion of the important issues of the day.” Blocking Texas from enforcing the law before it could be tested in lower courts was “a significant intrusion on state sovereignty,” he wrote.

Justice Alito said he had “not formed a definitive view” of the issues involved but stressed that “it is not at all obvious how our existing precedents, which predate the age of the internet, should apply to large social-media companies.”

State social-media regulations have produced split outcomes in lower courts. While the Fifth Circuit chose to allow the Texas law for now, the Atlanta-based 11th Circuit last week blocked a similar Florida measure that Republican Gov. Ron DeSantis said was intended to counter “biased silencing” of “our freedom of speech as conservatives.”

“A private entity’s decisions about whether, to what extent, and in what manner to disseminate third-party-created content to the public are editorial judgments protected by the First Amendment,” 11th Circuit Judge Kevin Newsom wrote for a three-judge panel, all Republican appointees. “Social-media platforms’ content-moderation decisions constitute the same sort of editorial judgments” historically made by publishers and distributors of information, he wrote.
BuckyB93 Offline
#6 Posted:
Joined: 07-16-2004
Posts: 14,111
That's a lot of words
HockeyDad Offline
#7 Posted:
Joined: 09-20-2000
Posts: 46,065
I don’t believe this until I see it on Facebook.
Brewha Offline
#8 Posted:
Joined: 01-25-2010
Posts: 12,147
Believing is seeing, HD - Try to get it right, will ya?
HockeyDad Offline
#9 Posted:
Joined: 09-20-2000
Posts: 46,065
Brewha wrote:
Believing is seeing, HD - Try to get it right, will ya?


If that’s what the government mandates.
Brewha Offline
#10 Posted:
Joined: 01-25-2010
Posts: 12,147
HockeyDad wrote:
If that’s what the government mandates.

Sir, it is in the way of things.

And has always been.
ZRX1200 Offline
#11 Posted:
Joined: 07-08-2007
Posts: 60,476
I eagerly await the day the right constricts free speech for the public good, I know Democrats will be OK with it now. I remember when I was naive and believed the left supported rights and America.
MACS Offline
#12 Posted:
Joined: 02-26-2004
Posts: 79,593
DemocRATS are already okay with restricting free speech. It's called hate speech and censoring speech they don't like.
Sunoverbeach Online
#13 Posted:
Joined: 08-11-2017
Posts: 14,586
What happens when you pass your driving test?
You don’t fail.
rfenst Offline
#14 Posted:
Joined: 06-23-2007
Posts: 39,100
ZRX1200 wrote:
I eagerly await the day the right constricts free speech for the public good, I know Democrats will be OK with it now. I remember when I was naive and believed the left supported rights and America.

Requiring one to communicate or transmit one's or another's message violates the First Amendment. You have the right to remain silent (different from the Fifth Amendment). You cannot be compelled to speak or publish by the First Amendment.
rfenst Offline
#15 Posted:
Joined: 06-23-2007
Posts: 39,100
MACS wrote:
DemocRATS are already okay with restricting free speech. It's called hate speech and censoring speech they don't like.

No one likes hate speech or government censoring.
ZRX1200 Offline
#16 Posted:
Joined: 07-08-2007
Posts: 60,476
I don’t think it’s publishing when you’re choosing content bro.
HockeyDad Offline
#17 Posted:
Joined: 09-20-2000
Posts: 46,065
rfenst wrote:
Requiring one to communicate or transmit one's or another's message violates the First Amendment. You have the right to remain silent (different from the Fifth Amendment). You cannot be compelled to speak or publish by the First Amendment.


The beauty of the first amendment is that congress shall create no law….

It doesn’t say jack about social media or mainstream media completely eliminating free speech! We got a loophole that altered the Presidential election. Silicon Valley is in charge now.
MACS Offline
#18 Posted:
Joined: 02-26-2004
Posts: 79,593
Yep... no laws needed when the media will do their bidding.
Sunoverbeach Online
#19 Posted:
Joined: 08-11-2017
Posts: 14,586
What is the name of a man who always knows where his wife is?
A widower.
rfenst Offline
#20 Posted:
Joined: 06-23-2007
Posts: 39,100
HockeyDad wrote:
The beauty of the first amendment is that congress shall create no law….

It doesn’t say jack about social media or mainstream media completely eliminating free speech! We got a loophole that altered the Presidential election. Silicon Valley is in charge now.

They did NOT violate the First Amendment, which only prohibits government restrictions. And, it wasn't a first Amendment issue until two states passed laws because they didn't like the content.
ZRX1200 Offline
#21 Posted:
Joined: 07-08-2007
Posts: 60,476
They didn’t pass laws because they didn’t like the CONTENT.

They didn’t like unequal application of rules. Sometimes I wonder if you do this on purpose or do you think you’re having fun with people here?
HockeyDad Offline
#22 Posted:
Joined: 09-20-2000
Posts: 46,065
rfenst wrote:
They did NOT violate the First Amendment, which only prohibits government restrictions. And, it wasn't a first Amendment issue until two states passed laws because they didn't like the content.


That’s what I said.
rfenst Offline
#23 Posted:
Joined: 06-23-2007
Posts: 39,100
ZRX1200 wrote:
They didn’t pass laws because they didn’t like the CONTENT.

They didn’t like unequal application of rules. Sometimes I wonder if you do this on purpose or do you think you’re having fun with people here?

You think I am trying to have fun with people by f'ing with them? Well, then you know little about who I am and what I am about.

Do what on purpose? Post some good articles on the most current First Amendment Freedom of Speech issue (or other issues) of the day that I find interesting, hoping to read a good discussion and maybe participate in? Hell, yes!!!
bgz Offline
#24 Posted:
Joined: 07-29-2014
Posts: 13,023
Show me in the constitution where it says you have a right to use the internet to login to a thing called twitter and be heard by the world (ok, your followers, which is likely 2 that actually read your sh*t).

In China, they'll go rip your azz out of your card board box, zip you away and you'll never be heard or missed again if you say the wrong thing on the internet.

I believe that's what the First Amendment is for... is to protect against that.
RayR Offline
#25 Posted:
Joined: 07-20-2020
Posts: 8,796
bgz wrote:
Show me in the constitution where it says you have a right to use the internet to login to a thing called twitter and be heard by the world (ok, your followers, which is likely 2 that actually read your sh*t).

In China, they'll go rip your azz out of your card board box, zip you away and you'll never be heard or missed again if you say the wrong thing on the internet.

I believe that's what the First Amendment is for... is to protect against that.


Tell that to the lefties...they kinda like the Chicom cancel culture method I hear.
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