And Now The Copia Institute Tells The Fifth Circuit That Texas Doesn’t Get To Regulate The Internet Either

Content Moderation

from the deja-two-thirty dept

As Mike noted the other day, state after state has been playing “fuck around and find out” with all sorts of bills that fundamentally interfere with the First Amendment and Section 230. So far Florida has already wasted over $700k in taxpayer dollars trying to defend their indefensibly censorial law. And now Texas is setting fire to the public treasury as well, as it appeals the injunction of their stupid attempt to control what people can say on the Internet.

So last week the Copia Institute did again what we did when it was Florida that refused to take the judicial hint after its law was enjoined, and filed an amicus brief at the appeals court, this time at the Fifth Circuit. It is, in many ways, a similar brief as before, because when we file these briefs we file usually wearing two hats: as a longtime commenter on issues of tech policy (including free speech and platform liability), and as an entity that very much relies upon the constitutional and statutory rights that the First Amendment and Section 230 afford. The more people think that tech policy regulation is only about “Big Tech” and not about everyone else, including your friendly neighborhood tech news site, the more of a disaster any proposed regulation affecting the Internet will be.

The briefs did, of course, vary a little because there are some differences in the laws. Texas’s, for instance, moronic though it is in its own way, at least didn’t try to exempt businesses that also happen to own theme parks in its state. Florida’s law was also a little more focused on favoring certain media outlets on social media, whereas Texas was more preoccupied with favoring certain speakers, which made the specific mechanics of each law a little different but no less terrible in their application and inevitable impact on online speech. Because no matter how much either state claims its law is about furthering speech, the results of each law, if allowed to come into effect, will be the silencing of it, because these regulatory attacks on the constitutional (First Amendment) and statutory (Section 230) rights platforms depend on to facilitate others’ speech are simply not sustainable if we would like any platforms – big, small, or otherwise – to remain around to facilitate any of it.

And so that’s what we explained in our brief. First in general terms to address the fundamental (if not also willful) misunderstanding of how the First Amendment and Section 230 operate – misapprehensions of which having clearly informed the Texas legislature, as well as the attorney general’s defense of the bill – and then by using the Copia Institute as Exhibit A for how this law, if allowed to come into effect, would hurt us too, even though ostensibly we weren’t directly targeted by it. While it seems pretty obvious, both on the face of the bill and from the attorney general’s defense of it, that what Texas really wanted to achieve with its law was to outright be able to dictate what people could say on the Internet, the cataclysmic and speech-smothering reach of any of these efforts to regulate Internet platforms is often much broader than any crowing politician is prepared to admit.

And so we need to keep showing up in these cases to say so.

Filed Under: 1st amendment, content moderation, section 230, social media, texas