Texas Legislature Sees Florida's Social Media Bill Go Down In Unconstitutional Flames; Decides 'We Can Do That Too!'

from the seriously,-guys? dept

The Republican grievance culture wars about the internet are never ending. The Grand Old Party — which once presented itself as believing in private property rights, keeping government out of business, and mocking “snowflakes” for playing victim all the time — has shown its true colors as being for everything it previously insisted it was against. As we noted earlier this year, a bunch of states with Republican controlled legislatures and governors have been proposing blatantly unconstitutional bills to try to prevent social media companies from moderating disinformation and propaganda. Utah was the first state to pass such a bill, but Governor Spencer Cox wisely vetoed it, noting the Constitutional concerns.

Next out of the gate was Florida, where Governor Ron DeSantis chose poorly, signing the bill that was thrown out last week for being blatantly unconstitutional under basically any standard of review. As we’ve noted, this is all performative nonsense, playing to a base that wants to insist it’s the aggrieved victims, because sometimes when they violate a website’s policies, they face consequences.

Incredibly, though not surprisingly, Texas legislators have looked at Florida’s giant constitutional mess of wasted taxpayer funds and said, “yeah, let’s do that!” Earlier this year, Texas proposed another awful social media content moderation bill, but the legislative session ended without it being voted on. Rather than move on to dealing with actual problems, Texas launched a special legislative session with a long list of culture war grievances — including the social media bill.

And so the bill has be re-introduced and it’s arguably even more blatantly unconstitutional than the Florida bill. Most of the first part of the bill is just creating a ton of silly and wasteful compliance paperwork — requiring social media websites to do a lot more to actually moderate content on their site, including having someone people can call, having an official appeals process, and explaining to people in exact terms why they were moderated (this gambit is a favorite of trolls and assholes, who want this information solely to disingenuously insist that they didn’t break the rules, or to insist that others who broke similar rules were treated differently, usually by removing any and all context from those decisions).

But then the bill veers into even more ridiculous territory. First, it defines “censorship” to mean things that are clearly not censorship. Even if you disagree with the basic premise that moderation is not censorship, the Texas bill defines “censorship” so broadly to make the term meaningless:

“Censor” means to block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression.

De-monetizing is censorship? De-boosting is censorship? In what world? I mean, Fox News refuses to put me on the air to express my views about their propaganda. Is that censorship? The bill does exempt news organizations, but still. Under this bill, it seems that search ranking is censorship. After all, whoever is ranked below the top spot has been “de-boosted” and not provided “equal access or visibility.” I can’t wait until I can sue Google for not putting Techdirt at the top of every search!

The bill then tries to prohibit its definition of “censorship” for viewpoints.

CENSORSHIP PROHIBITED. (a) A social media platform may not censor a user, a user ?s expression, or a user ?s ability to receive the expression of another person based on:

(1) the viewpoint of the user or another person;
(2) the viewpoint represented in the user?s expression or another person?s expression; or
(3) a user?s geographic location in this state or any part of this state.

So, you cannot ban Nazis any more. Or bigots spewing hatred. Sounds great, Texas. I mean… actually, sounds totally blatantly unconstitutional, and a clear waste of Texas taxpayers money, as you will have to go to Court and defend this law that will easily be tossed out as unconstitutional. But, who cares about that when there’s a culture war to fight, and an opportunity to whine about how you’re the victim again?

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Comments on “Texas Legislature Sees Florida's Social Media Bill Go Down In Unconstitutional Flames; Decides 'We Can Do That Too!'”

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83 Comments
That One Guy (profile) says:

Re: 'We lost again, give us even more money!'

Almost certainly but as a PR stunt/bullhorn for the gullible(because it’s sure as hell not a dog-whistle) it’s almost certain that it being shot down is part of the plan, as that’ll just be held up as even more proof of how ‘persecuted’ the poor victimized ‘conservatives’ in america are and how it’s vital to give even more money and vote to get in office even more god fearing conservative politicians.

Anonymous Coward says:

Re: Re: 'We lost again, give us even more money!'

as that’ll just be held up as even more proof of how ‘persecuted’ the poor victimized ‘conservatives’ in america are

One could argue that their control of various states and cities can be used as an augment that they are not persecuted, and that their message gets out just fine.

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Stephen T. Stone (profile) says:

Re:

Fox News is a platform for speech in the same way a newspaper is a platform for speech. That the people what run that specific platform predetermine who gets to use that platform doesn’t make it any less of a platform. The biggest difference between a platform like Fox News and a platform like Twitter is that Twitter doesn’t (generally) predetermine who gets to use the platform.

And just as Fox News can’t censor someone by refusing them a spot on that platform (e.g., Fox News can’t censor Joe Biden by refusing to air his speeches), Twitter can’t censor someone by doing the same (e.g., Twitter can’t censor Donald Trump by kicking him off Twitter). That you still believe moderation is censorship means you’ve either bought lock, stock, and raging dumpster fire into conservative propaganda or you’re a professional troll. Neither option speaks well of you.

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Anonymous Coward says:

Re: Publisher vs Platforms

No. Fox News is a publisher, and not a platform. Only platforms can censor.

Koby, please point to the exact text in either §230 or the 1st amendment that makes the distinction between publisher vs. platform w.r.t. their moderation choices.

I’ll wait…..

If you can’t find it, then maybe, just maybe, it doesn’t exist and you are just full of shit ????.

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Anonymous Coward says:

Re: Re: Re: Publisher vs Platforms

Facebook and twitter etc. offer such a contracts, with the proviso that the use of the service is contingent on you following the rules. It is those who break the rules that get banned. So stop whining that the rules are not to your liking, and go somewhere where you like the rules….

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Koby (profile) says:

Re: Re: Re:2 Publisher vs Platforms

with the proviso that the use of the service is contingent on you following the rules.

On Techdirt here, we decry unconscionable contracts all the time. From businesses suing their own customers because they posted a negative review on a review site, to video games deleting a product that someone purchased, to telecommunication companies disallowing you to purchase your own equipment so that you can avoid bogus fees, just because a corporation writes a contract claiming that they can do anything that they want does not make it okay. States most certainly have the power to void unconscionable terms in a contract to protect consumers, employees, and service subscribers. Writing bogus and unequally enforced rules into a contract is something that states are empowered to modify.

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Samuel Abram (profile) says:

Re: Re: Re:3 Publisher vs Platforms

Writing bogus and unequally enforced rules into a contract is something that states are empowered to modify.

Nice to see you admit that causing an insurrection is a "bogus and unequally enforced rule". To see how full of shit you are, a bot that just retweeted Donald Trump’s tweets was banned but Donald Trump’s twitter account stayed up because he was the president. You’re not asking for equal treatment but special treatment (which is was Trumpy actually got).

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Mike Masnick (profile) says:

Re: Re: Re:3 Publisher vs Platforms

On Techdirt here, we decry unconscionable contracts all the time

Koby, how the fuck is it "unconscionable" to say "you can post on our site as long as you obey our rules"?!?

Are you really that clueless?

Writing bogus and unequally enforced rules into a contract is something that states are empowered to modify.

What is bogus? And what is unequally enforced? (Hint: just because you surround yourself with idiots, assholes and trolls, and don’t realize that people outside of your idiot brigade also get banned, does not mean that rules are enforced unequally).

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Koby (profile) says:

Re: Re: Re:4 Publisher vs Platforms

Koby, how the fuck is it "unconscionable" to say "you can post on our site as long as you obey our rules"?!?

Because saying that the corporation can make up whatever rules they want has never flown before. Dentists can’t just say "you’re not allowed to post a bad review" in their contract. Or "you are not allowed to modify the device that you bought and own". Claiming that you can make up any rule whatsoever is insufficient. States can say that service providers must give notice to customers prior to disconnection. States can say that service providers must enforce rules equally and not selectively. States have been overriding service contracts for years to protect consumers.

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Anonymous Coward says:

Re: Re: Re:5 DMCA, anyone?

Or "you are not allowed to modify the device that you bought and own".

I rather like this example, Koby, though I wonder if you missed the entire "Right to repair" movement. Or, perhaps, simply forgot what it was about.

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Rocky says:

Re: Re: Re:5 Publisher vs Platforms

Because saying that the corporation can make up whatever rules they want has never flown before.

They can make up any rules they want, as long as they are within the law. If you believe otherwise, please show us what laws are being broken by a TOS. I don’t expect you can, all you have are a persecution complex for being an asshole.

But let me point something out, if you click "agree" on a TOS with the intent of not following the rules set forth in it, regardless of what the rules are, there is no contract – you have no right to use the service then, you can’t complain about anything since by your own actions you rendered the contract null and void.

And I have to ask, how fucking stupid do you have to be to agree to a contract and then complain how unfair it is? You read it first, and if you don’t agree with it or find it unfair, you don’t fucking agree to it. But no, you choose to be a stupid fucker while having a meltdown that you aren’t allowed to shit all over someone’s private property.

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Chozen says:

Re: Re: Re:6 Publisher vs Platforms

"They can make up any rules they want, as long as they are within the law. If you believe otherwise, please show us what laws are being broken by a TOS. I don’t expect you can, all you have are a persecution complex for being an asshole."

That is only one thing that voids a contract. 3 things void a contract.

  1. Violation of public policy ~ That is what you got.
  2. Parties not legal persons ~ A minor cannot enter into a contract.
  3. No meeting of the minds the contract is ambiguous ~ This is where all social media TOS fall flat on their face. They are all intentionally ambiguous and therefore not legal. Due to their ambiguity a typical TOS isn’t worth the paper its not printed on.
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Stephen T. Stone (profile) says:

Re: Re: Re:7

They are all intentionally ambiguous and therefore not legal. Due to their ambiguity a typical TOS isn’t worth the paper its not printed on.

If a TOS isn’t a binding contract, how can you thus complain about Twitter or Facebook banning people? I mean, by your own logic, the parties haven’t entered into a contract, so the banned users can’t make the courts legally enforce a contract-that-isn’t.

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That One Guy (profile) says:

Re: Re: Re:8 Re:

If TOS’ had to be specific to be considered legal then by that argument someone could take a dump in the middle of a club and so long as the rules for said club didn’t specifically say that that wasn’t allowed then the club would have no grounds to eject the person, and given I feel very confident that that argument if raised by the disgusting person in question would never fly in court I can’t help but think it might not be as strong an argument as those making it think it is.

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Rocky says:

Re: Re: Re:7 Publisher vs Platforms

  1. Violation of public policy is about employee – employer contracts. Which has zero to do with social media.
  2. If you are a minor there is no contract – hence you aren’t allowed to use the service any way.
  3. If the TOS isn’t legal you have no rights at all to use the service. Also, please give us examples of this "ambiguity".

You think if there is no "legal contract" you are entitled to use a service as you see fit, which is a particular interesting position to take. Does a lack of a legal contract mean you are entitled to use someone else’s property without repercussions?

Thank you for playing, but shooting your feet off isn’t the correct way to win a race.

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Mike Masnick (profile) says:

Re: Re: Re:5 Publisher vs Platforms

Because saying that the corporation can make up whatever rules they want has never flown before.

Corporations can make up rules for participating within their property, so long as they don’t contravene a few very limited restrictions. Saying "don’t be an asshole, don’t harass people" is not, in anyway, unconscionable. I mean, seriously, Koby.

Claiming that you can make up any rule whatsoever is insufficient

I see you moving the goalposts, Kobes, and I won’t allow it. There’s a world of difference between "this website says you need to not harass people or we’ll kick you off" and "you’re not allowed to post a bad review anywhere online." If you can’t tell the difference, you’re too stupid to be here. Go away and wallow in your own stupidity elsewhere.

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That One Guy (profile) says:

Re: Re: Re: Publisher vs Platforms

And social media platforms(or at least the sane ones) don’t offer a ‘once you’re in you can say/do whatever you want’ contract, and in fact will often have a ‘we reserve the right to remove content and revoke membership at our discretion’ clause so your attempt to make this a contractual issue that the platforms are violating probably isn’t doing you as much good as you might think it is.

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Anonymous Coward says:

Re: Re: Re: Publisher vs Platforms

It’s not based on statute, it’s based on contractual relationships.

So right there you admit that your platform vs publishers is just a stinking pile of shit.

When you sign up for social media, you enter a contract to abide by their ToS, and if you break their rules, then guess what, you broke the contract and they have every right to give your ass the boot.

That is their contractual relationship with you as a user of their social media service.

You do not have a right to access other people’s private property unless they expressly allow you to do so, and they can revoke that access for any reason at any time.

Nowhere does the concept of platform vs publisher arise.

Why is that so fucking difficult for you to understand?

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Chozen says:

Re: Re: Publisher vs Platforms

See now you are just being too smart by half. You are playing a linguistic game. platform is a general term used to describe the large collections of bodies that the courts had determined were not publishers and also not distributors.

In the late 90s the term platform started being used to describe these ‘not publishers.’

So yes it is not a term created by an act of congress, it began as a commonly used vernacular.

Now here is where you get too smart by half. The courts started using the word which makes it law genius. It was just recently used in Joe Biden Jr. v. Knight First Amendment Institute ~ April 2021

So since the highest court in the land has used and defined the term it is law.

And yes I know leftwing legal blogs have said there is no such thing … those people are idiots.

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Samuel Abram (profile) says:

Re: Re: Re: Publisher vs Platforms

Do you know what is also law? Manhattan Community Access Corp. v. Halleck, for which Trump-appointed (and voted by GOP senators in an overwhelming majority and voted against by Dem senators unanimously) Justice Brett Kavanaugh:

Under the Court’s cases, a private entity may qualify as a state actor when it exercises “powers traditionally exclusively reserved to the State.” … It is not enough that the federal, state, or local government exercised the function in the past, or still does. And it is not enough that the function serves the public good or the public interest in some way. Rather, to qualify as a traditional, exclusive public function within the meaning of our state-action precedents, the government must have traditionally and exclusively performed the function.

The Court has stressed that “very few” functions fall into that category. … Under the Court’s cases, those functions include, for example, running elections and operating a company town. … The Court has ruled that a variety of functions do not fall into that category, including, for example: running sports associations and leagues, administering insurance payments, operating nursing homes, providing special education, representing indigent criminal defendants, resolving private disputes, and supplying electricity. …

When the government provides a forum for speech (known as a public forum), the government may be constrained by the First Amendment, meaning that the government ordinarily may not exclude speech or speakers from the forum on the basis of viewpoint, or sometimes even on the basis of content[.]

By contrast, when a private entity provides a forum for speech, the private entity is not ordinarily constrained by the First Amendment because the private entity is not a state actor. The private entity may thus exercise editorial discretion over the speech and speakers in the forum. This Court so ruled in its 1976 decision in Hudgens v. NLRB. There, the Court held that a shopping center owner is not a state actor subject to First Amendment requirements such as the public forum doctrine[.]

The Hudgens decision reflects a commonsense principle: Providing some kind of forum for speech is not an activity that only governmental entities have traditionally performed. Therefore, a private entity who provides a forum for speech is not transformed by that fact alone into a state actor. After all, private property owners and private lessees often open their property for speech. Grocery stores put up community bulletin boards. Comedy clubs host open mic nights. As Judge Jacobs persuasively explained, it “is not at all a near-exclusive function of the state to provide the forums for public expression, politics, information, or entertainment[”.]

In short, merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints.

If the rule were otherwise, all private property owners and private lessees who open their property for speech would be subject to First Amendment constraints and would lose the ability to exercise what they deem to be appropriate editorial discretion within that open forum. Private property owners and private lessees would face the unappetizing choice of allowing all comers or closing the platform altogether. “The Constitution by no means requires such an attenuated doctrine of dedication of private property to public use.” … Benjamin Franklin did not have to operate his newspaper as “a stagecoach, with seats for everyone.” … That principle still holds true. As the Court said in Hudgens, to hold that private property owners providing a forum for speech are constrained by the First Amendment would be “to create a court-made law wholly disregarding the constitutional basis on which private ownership of property rests in this country.” … The Constitution does not disable private property owners and private lessees from exercising editorial discretion over speech and speakers on their property. …

A private entity … who opens its property for speech by others is not transformed by that fact alone into a state actor.

(Stephen T. Stone, I know this is what you usually do, but I’m out of Dragon Balls)

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Chozen says:

Re: Re: Re:2 Publisher vs Platforms

Samuel Abram,

When you just copy and paste a decision that means you dont understand it. Halleck is not the droids you are looking for. Halleck is anything moved that ball closer to regulation of social media. Halleck established that social media is in the public interest. That is the legal term that triggers regulation. What Halleck also said is that just calling social media a state actor would be judge made law. It does not prohibit statute from regulating social media in the public interest. It actually encourages it.

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Stephen T. Stone (profile) says:

Re: Re: Re:3

Halleck established that social media is in the public interest.

No, it doesn’t⁠—because Halleck isn’t about social media. It’s about a public access television station. The logic expressed in Halleck vis-á-vis private entities and state actors can be applied to social media, though. Even the Wikipedia page for the decision says this:

The opinion also stated that even if a private organization creates a public forum for speech, the fact that it is a private company means the First Amendment is not applicable. An example the opinion gives is that private organizations such as grocery stores and comedy clubs allow public forums such as bulletin boards or open mic sessions, but only topics that are relevant to these organizations are allowed to be expressed.

That said…

It does not prohibit statute from regulating social media in the public interest.

…this is true. On the other hand…

It actually encourages it.

[citation required]

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Chozen says:

Re: Re: Re:4 You Lose

"First Amendment is not applicable. An example the opinion gives is that private organizations such as grocery"

You just lost the argument because grocery stores are the prime example of private companies being forced by regulation to respect their customers first amendment rights Pruneyard Shopping Center v. Robins (1980). So if as the Helleck decision says, social media is like a grocery store, then the states have just like the State of California has every right to regulate them to protect the free speech rights of their customers.

You lose good day sir!

Stephen T. Stone (profile) says:

Re: Re: Re:5

In re: Pruneyard (emphasis mine):

On December 27, 2012, the Supreme Court of California reaffirmed Pruneyard but narrowed its applicability to the facts of the original case. The entire court concurred in Associate Justice Joyce Kennard’s holding that Pruneyard applies only to "common areas" of shopping centers that are designed and furnished to encourage shoppers to linger, congregate, relax, or converse at leisure, but does not apply to any other open portions of shopping centers merely intended to facilitate the efficient movement of shoppers in and out of tenants, including concrete aprons and sidewalks which shoppers simply walk across as they move between parking lots and big-box stores. In other words, the court effectively immunized most (but not all) strip malls and shopping centers from Pruneyard, except for those with areas analogous to public gathering areas such as plazas, atriums, or food courts. Miriam Vogel, a former Court of Appeal justice who argued for the shopping center tenant (Kroger subsidiary Ralphs), characterized the decision "a great victory for retailers as far as putting another nail in the Pruneyard coffin." However, the decision was not a complete loss for free speech advocates, as the court separately upheld the right of a union to protest on the employer’s premises under the state Moscone Act by a 6–1 majority (the majority, though, was badly split as to why).

Pruneyard has been identified as possible case law by conservative politicians in challenging the protections from liability of Internet service providers, like Facebook and Twitter, under Section 230 of the Communications Decency Act. Section 230 immunizes such providers from liability for content generated by their users, as well as for decisions to remove or moderate content they deem objectionable, language which has enabled the Internet to flourish since its passage in 1996. In the years leading up to and after Donald Trump was elected president in 2016, conservatives claimed that Internet sites were unfairly moderating against their viewpoints and have sought ways to try to weaken Section 230 as applied to sites allegedly engaged in nonneutral practices. Pruneyard has been cited in litigation by conservatives seeking to coerce Internet sites to cease moderation or restrictions on their content, such as in a 2019 case of PragerU seeking to stop YouTube from demonetizing its videos, by equating such sites as the equivalent of shopping malls, but these attempts have been so far rejected by courts. Nevertheless, Trump himself cited Pruneyard in Executive Order 13925, "Preventing Online Censorship", signed in May 2020, which seeks to modify the application of Section 230.

Pruneyard is not the magic bullet you thought it was; invoking its name doesn’t scare me. Try another argument or get lost.

Tanner Andrews (profile) says:

Re: Re: Re:2 Publisher vs Platforms

Manhattan Community Access Corp. v. Halleck

That one was regrettable. The law as stated appears correct, but the application on those particular facts may have been unfortunate. The cable service was transferred from the govt to a private entity in part to allow for viewpoint-based decisions. The govt could not prevent access by critics, where the corp could.

I am not sure how the supremes could reach a different result without some serious pretzel logic. Given how much we pay them to be smart, it might have been nice to see a more useful result. Making careful distinctions is part of their job. Compare Hall v. DeCuir, 95 U.S. 485, and Chiles v. C&O Ry, 218 U.S. 71, , to Plessy v. Ferguson, 163 U.S. 210.

Still, genuinely private corps such as the operators of twitter or daily stormer are even more legitimately entitled to control the use of their respective properties.

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Mike Masnick (profile) says:

Re: Re: Re: Publisher vs Platforms

In the late 90s the term platform started being used to describe these ‘not publishers.’

Your timeline is off by… about 20 years. But okay.

So yes it is not a term created by an act of congress, it began as a commonly used vernacular.

Platform meant something very differently until recently. It used to mean something you could build apps on top of. Only recently (within the last 10 years or so) did it shift to mean a website for user generated content.

Now here is where you get too smart by half. The courts started using the word which makes it law genius. It was just recently used in Joe Biden Jr. v. Knight First Amendment Institute ~ April 2021

Justice Thomas used it in an unbriefed, random thought burp. Not as part of an actual ruling on a case he was briefed on. There is nothing in the law, which is the point that was made which you ignored.

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Chozen says:

Re: Re: Re:2 Publisher vs Platforms

"Justice Thomas used it in an unbriefed, random thought burp. Not as part of an actual ruling on a case he was briefed on. There is nothing in the law, which is the point that was made which you ignored."

The law is all acts passed by congress and all decisions by the courts. A decision by the court is law. As for the use of the term "Platform" it was also used by the court in Halleck.

The cat is out of the bag so to speak. Too many courts SCOTUS included have used "platform" for you to say it means nothing. Sometimes courts create law. Tough @#% go cry on your pillow.

What is is.

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That One Guy (profile) says:

Re: Publisher vs Platforms

No. Fox News is a publisher, and not a platform. Only platforms can censor.

By that argument the government would not be engaging in censorship were they to pass a law that otherwise legal speech that they simply don’t like will be punished and platforms are not allowed to host it.

Seriously, do you even listen to yourself?

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That One Guy (profile) says:

Re: Re: Re: Publisher vs Platforms

Because the groups/individuals being discriminated against were facing that due to factors outside of their control(race, gender, sexual orientation…), remind me again what people are being ‘discriminated’ against for that’s being used to justify bills like this, and please, be specific.

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Chozen says:

Re: Re: Re:2 Publisher vs Platforms

"Because the groups/individuals being discriminated against were facing that due to factors outside of their control"

I see you left religion out. Why? Surry it was just an honest error. It couldn’t possible be because it didn’t fit your narrative? You are such a good honest person you couldn’t possibly engage is just deliberate deceit.

P.S. FYI California Civil Rights code also protects political affiliation. Big Tech has really really fought to get his repealed in California because they realize that if they ever get on the wrong side of a State AG they are up @#$% creek without a paddle.

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That One Guy (profile) says:

Re: Re: Re:3 Publisher vs Platforms

Ah what the hell, I’m already dealing with one dishonest person in this thread might as well make it two.

I wouldn’t think I would need to explain that triple periods typically means ‘and so on’ but I guess for someone like you it needs to be spelled out very clearly that that would also include religion, which might not technically fall into the category of ‘personal factors beyond someone’s control’ but is generally included in anti-discrimination laws because without it the various religions would rip each other to pieces, with ‘No jews/catholics/protestants/muslims and especially atheists‘ signs and/or laws going up all over the place.

This does not help you or Koby in this instance however because even if you want to claim that people are being ‘persecuted’ due to political reasons I need merely repeat the question: Which political actions/words are causing that ‘persecution’ you think is happening, and again, be specific, and keep in mind that if you really want to open that door then keep in mind it swings both ways.

Stephen T. Stone (profile) says:

Re: Re: Re:3

Since someone else called you out on your the first half of your disingenuous bullshit, I’ll handle the second half because fuck you that’s why.

California Civil Rights code also protects political affiliation.

Partly correct on both halves.

California laws protect against employer retaliation for political activity. Labor Codes 1101 and 1102 LC prohibit employers from doing the following:

  • setting any policy that prevents employees from engaging in political activity or running for political office, or that tries to control or direct employees’ political activity
  • attempting to control employees’ political activities by threatening to engage in political activity retaliation
  • retaliating in any way (including through wrongful termination) against an employee for his/her political beliefs or activities

That law doesn’t protect anyone from discriminaton based on political affiliation/activity outside of those situations. An anti-abortion employer in California can legally refuse to hire someone who is pro-choice⁠—but if that employer hires that person, the employer cannot then retaliate against their new employee over those pro-choice views.

Nothing in California law currently protects anyone from being kicked off a social media service operating in California on the basis of political affiliation/activity/belief. The same goes for federal law. Cite the exact law, statute, or “common law” court ruling that directly and explicitly says otherwise, and I’ll concede the point⁠. But I’d bet money you can’t…if I took sucker bets, that is.

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Koby (profile) says:

Re: Re: Re:2 Publisher vs Platforms

It doesn’t matter. Courts have also upheld factors that are within a person’s control, such as familial status and religion. Civil rights are not contingent upon choice, or the lack thereof. Lawmakers CAN require businesses to adhere to particular service standards, even if the business has a contract that claims they can do otherwise.

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Stephen T. Stone (profile) says:

Re: Re: Re:3

Civil rights are not contingent upon choice, or the lack thereof.

Anti-discrimination protections are, though. They’re generally written to prohibit discrimination based on factors of a person’s existence that are out of their control⁠—race, age, gender/biological sex, and disability being primary amongst those factors. Religion comes into play because while people can choose their religion, that choice isn’t as simple as choosing what shirt to wear in the morning⁠—and because if discrimination based on religion was legal, Christians in this country could force every other religious group (including the irreligious) out of polite society by sheer force of numbers.

I can’t think of any good reason, other than sheer unadulterated privilege, to treat political affiliation as we would treat religion vis-á-vis anti-discrimination laws. Or would you like to see lawsuits over that particular type of bullshit flood the courts across the country and turn the judiciary into an even bigger exercise in partisan fuckery?

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Anonymous Coward says:

Re: Publisher vs Platforms - More Kolby bullshit.

Merriam webster defintion of "censor":
"to examine in order to suppress (see SUPPRESS sense 2) or delete anything considered objectionable"
Which is exactly what Fox News is doing when they show anything other than a full statement from e.g. Joe Biden. Of course a "publisher" can censor, every bit as much as a "platform", not that "publisher" vs "platform" is a true dichotomy. The distinction is not real, it is just a fraudulent device to allow the user, typically a republican, to make false claims without their ridiculous fallacy and stupidity to be unavoidably obvious to their audience.

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TaboToka (profile) says:

Re: Publisher vs Platforms

Fox News is a publisher, and not a platform

So you say, so let’s go to their "platform": FoxNews.com uses OpenWeb to host comments on their website.

Interestingly enough, the OpenWeb TOS include these provisions (emphasis mine);

5.3 You shall not … post … any User Content … that …
(ii) you know is false, misleading, untruthful or inaccurate;

(iii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, vulgar, pornographic, offensive, profane, … or is otherwise inappropriate as determined by Us in Our sole discretion; ….

5.4 … We reserve the right to, but do not have any obligation to
(i) remove, edit or modify any User Content in our sole discretion, at any time, without notice to you and for any reasonor for no reason at all; ….

Thus under this soon-to-be-short-lived Texas Law, foxnews.com has to lift all the above restrictions on their platform.

Be careful what you wish for!

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That One Guy (profile) says:

Enjoy your mountain of dick pill ads texas

"Censor" means to block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression.

Setting aside the obvious categories like bigotry and conspiracy theory nutjobbery by that insanely broad definition a spam filter engages in censorship and if censorship is a no-go for online platforms/services then I hope texans are big fans of avalanches of spam because they’re going to be seeing a lot more of it should this unconstitutional dumpsterfire pass.

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Anonymous Coward says:

Go ahead and fucking try

I’d love to see this bill actually put to the test. Hear me out, because it would be fuck-all funny…

Let’s say social media can’t censor anything. There are children and teenagers on social media, some of which belong to parents of the entitled little shitholes that keep crying ‘but muh censirshit!"

What will their reaction be when their kids come across Nazi propaganda? Or Qshit? Probably nothing, right?

But what about (gasp!) LGBTQ material?
What about (gasp again!) religions other than the Judeo-Christian nonsense they claim to follow?
What about someone calling the US ‘a third world shithole, where nearly half of the population are mentally defective?’
Hell, what if they see a bare breast?

None of this is obscene in and of itself, and under this clusterfuck of a bill, it would be required to stay up because ‘cenzirship bad.’ How will they possibly explain these things to their soon-to-be-equally-stupid chuds? I mean, it’ll be funny when they get to use all their buzzwords like ‘triggered’ and ‘snowflake’ – but I predict the shit will hit the proverbial fan once their precious little spawn start asking questions like ‘This person said there is no god, and you can’t prove there is. What say you Mommy?’ or something like ‘Why does that person have two daddies?’ or ‘What’s a Mommy Part?’

I predict at that point, we’ll pivot back to ‘but, but duh childrun!!’ and end up right back to where we are now.

They think they want this, but in reality, they’re not prepared for what happens once they fucking get it. Because god-for-fucking-help these idiots if they somehow get these stupid bills turned into law, and then start the whining back up once the moderation is gone.

Buckle up fuckos! You have no idea what you’ll be in for.

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Anonymous Coward says:

Re: Go ahead and fucking try

You are overlooking an important point, the bigots can and will shout louder and more viscously than the LGBTQ people and other minorities, and the trolls will likely drive them off of the Internet, or at least into private invasion only online spaces. A lot of the trolls, if unleashed, will make Baghdad Bob look like a kind and gentle person.

Anonymous Coward says:

Re: Re: Go ahead and fucking try

You are overlooking an important point

Understood – it will definitely be a pissing contest, that’s for sure. But the minority crowd isn’t the only target here – it’s everyone else that isn’t the simple-minded savage who blames everyone else for why they live in a trailer park. Those middle of the road folks will have a lot more to deal with, and with more skin in the game, it’ll be interesting to see how sides get chosen once each end goes all in.

One group will surely be the bigger asshole. I’m just betting on the biggest asshole to be the whiny fucks who are constantly complaining on social media that they’re being kicked off social media.

Anonymous Coward says:

Re: Re: Re:2 Go ahead and fucking try

RIght! And then what?

Social media will either lose users, turn into the functional equivalent of 8kun, and the swimmers in the shit will once again lose their audience, or there will be a demand to get rid of said losers, affirming once again that they’re not wanted.

Anonymous Coward says:

Re: Re: Re:3 Go ahead and fucking try

Given the political support being given to those loser, the damage will be extensive before the political winds change, assuming the increased noise from the those losers does not result in the US turning into a one part fascist state, because those are the voices that can make themselves heard.

Anonymous Coward says:

Re: Re: Re:4 Go ahead and fucking try

because those are the voices that can make themselves heard

They can only make themselves heard because they play the victim card.

What happens when everyone else feels the same way because now they have to listen to these assholes? Do they just get to say ‘oh well, we just need to live with it’ or do they ask ‘why do I have to put up with this shit?’

All it’s going to take is one of these narrow-minded ‘family values’ groups to have to allow content that runs afoul of their dogma. Then we’re right back to moderation.

Tanner Andrews (profile) says:

Re: Go ahead and fucking try

they’re not prepared for what happens once they fucking get it

Most likely they will not get their bill in effect. A bill to similar effect here was struck down even before it could become effective. No doubt the state will appeal, but even the U.S. 11th Circuit is not going to uphold the stink-bomb that is SB 2021-7072.

If things move more slowly in Texas, or they do not provide an effective date, it may kick in. In such a case, I imagine that the bill will be so short-lived as to be of no real effect.

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That One Guy (profile) says:

Re: Re:

Ah but you see much like everything else that they don’t agree with or that disagrees with them all of that falls right into the category of ‘fake news’ and therefore doesn’t count, it’s only their speech and their content that deserves to be protected against any consequences.

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Anonymous Coward says:

The problem is services need to be able to block trolls block spam and remove or block users who post racist or hate speech or fake news or else the bad users will drive out the good
Eg every site that allows posts or comments will turn into a
4chan type website

No one wants to scroll thru pages of garbage to find genuine
good content

Republicans are passing bills to make basic standard moderation practices illegal
Or startups will be forced to follow arcane rules that are pointless and expensive to follow laws that make no sense
made by Politicans who don’t understand how the Internet works
Imagine having the laws on content moderation
made by someone who has never used Facebook or Seen a YouTube video and does not use a smartphone

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