And Now The Copia Institute Tells The US Supreme Court There’s A Big Problem With Texas’s Social Media Law

from the first-amendment-fire-drill dept

Last week a bizarre one-line order from the Fifth Circuit lifted the injunction on Texas’s social media law, allowing it to go into effect, despite all the massive problems with it – including the extent to which it violates the First Amendment and Section 230.

So NetChoice and CCIA filed an emergency application with the U.S. Supreme Court to try to have it at least reinstate the injunction while the case worked its way through the appellate courts. And yesterday Copia Institute filed an amicus brief supporting their application.

The brief is, in many ways, an encore performance of the brief we’d submitted to the Fifth Circuit, using ourselves and Techdirt as an example of how the terms of HB20 violates our constitutional and statutory rights, but this time around there are a few additional arguments that may be worth their own posts (in fact, one is a throwback to an old post). Also, one key argument that we added applies less to the problems with HB20 itself and more to the problems involved with the Fifth Circuit lifting the injunction, and especially in the way that it did. We pointed out that lifting the injunction, and without any explanation for why, looked an awful lot like the sort of prior restraint that had long been considered verboten under the First Amendment. State actors (including courts) are not supposed to chill the exercise of expression unless and until there’s been the adjudication needed to find that the First Amendment permits that sanction. Here the Fifth Circuit technically heard the case, but it issued a sanction stymying the exercise of speech (lifting the injunction) without ever actually having ruled that HB20’s chilling terms were actually ok under the First Amendment. Perhaps the court truly think’s HB20 is perfectly sound under the First Amendment, we don’t really know. And we can’t know, because they didn’t say anything. Which also means there’s nothing to appeal, because if the Fifth Circuit made an error in thinking HB20 is ok (which seems likely, because that law conflicts with so much established First Amendment precedent, as well as common sense) no one can say where that error was, or what of its judgment should be reversed.

Nevertheless, the law is out there, in effect now, doing harm to platforms’ expression. HB20 still needs to be thrown out on the merits, but for the moment we just all need the Supreme Court to get the bleeding to stop.

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Comments on “And Now The Copia Institute Tells The US Supreme Court There’s A Big Problem With Texas’s Social Media Law”

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34 Comments
Anathema Device (profile) says:

That same Fifth circuit “just dismantled the SEC’s power to enforce securities law.” https://twitter.com/mjs_DC/status/1527009488301170688

“the implication of this decision is that most (all?) agency enforcement power is unconstitutional. Which, in plain English, means that the federal government can’t enforce a huge swath of regulations. I mean, this is basically striking down the administrative state.”

https://twitter.com/mjs_DC/status/1527011040730435586

Both decisions (the HB20 one, and this) will need the SC to overturn, and with the current SC, that’s more than likely not going to happen.

You guys are being fucked over by lawless courts and lawless lawmakers.

This comment has been flagged by the community. Click here to show it.

Koby (profile) says:

You Forget Whats Chilling

State actors (including courts) are not supposed to chill the exercise of expression unless and until there’s been the adjudication needed to find that the First Amendment permits that sanction.

The platforms are the ones attempting to chill expression through censorship. The messages posted to social media do not belong to the platforms, as evidenced each time there is a defamation lawsuit. The platform will say, by law, that they are neither considered the speaker nor the publisher. There is no speech that belongs to the platform that they are being denied to publish.

This comment has been deemed insightful by the community.
Stephen T. Stone (profile) says:

Re:

The platforms are the ones attempting to chill expression through censorship.

And if platforms like Twitter could actually censor people, you might have a point. As it stands, all you have is an implication that leads to the obvious question: What expression is being “chilled”? Be down-to-the-details specific about exactly what speech is being “censored”, you coward.

This comment has been deemed insightful by the community.
Anonymous Coward says:

Re:

If I tell people who enter my house that they can’t talk about something I don’t like, and someone talks about something I don’t like, I can kick them out, even if they’re unaware that I don’t like it. I’m not violating any of their rights by doing so.

Twitter can do the same in their house.

Why is this so hard for you to understand?

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Anonymous Coward says:

Re: Re:

How your house became a public square that shapes policy the way Twitter has, for one.

Why can’t phone companies deny service? They are privately owned.

As for TV being regulated it’s not the scarcity of the medium but its intrusiveness which gives the FCC its standing. The internet is far more intrusive. Internet streaming should be held to the same standard as live broadcasting.

This comment has been deemed insightful by the community.
Anonymous Coward says:

Re: Re: Re:

a public square that shapes policy the way Twitter has

Twitter isn’t a public square. “A bunch of people talk here” does not convert private property into a public square.

Why can’t phone companies deny service? They are privately owned.

A phone company must obtain the proper licensing from a governmental regulatory body, under which it contractually agrees to provide its services to all (aka common carriage). Therefore it cannot deny service except in situations permitted in the regulatory contract, if any.

The internet is far more intrusive

Why? I find the internet (and TV, for that matter) to be pretty non-intrusive.

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Anonymous Coward says:

Re:

The platforms are the ones attempting to chill expression through censorship.

So what is being censored, NeoNazi? Is it COVID DENIAL, WHITE SUPREMACY AKA NEONAZI IDEOLOGY, AND TERRORISM, OR TO BE MORE ACCURATE, RACE-BASED TERRORISM?

The messages posted to social media do not belong to the platforms

Which is why they continue to operate. But of course, you’d like them to be accountable, because then the Kochs, the Murdochs and their shitty ilk can then force compliance through lawsuit instead of paying them to host COVID DENIAL, WHITE SUPREMACY AKA NEONAZI IDEOLOGY, AND TERRORISM, OR TO BE MORE ACCURATE, RACE-BASED TERRORISM.

Again, privately-owned “public” spaces are still private spaces, NeoNazi. No amount of money will change the rules, though you hope the Kochs and the Murdochs will do so.

The door is that way. Get the fuck out before you start being homicidal.

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That One Guy (profile) says:

Re: Re: Re:

That’s… not a ‘view’ but regardless that would either be a one-off mistake by the speaker or someone deliberately being an asshole so I’m curious which you’re referring to when you say people are being ‘censored’ when you use that as an example because moderating one of those is a lot more justified than the other.

Anonymous Coward says:

Re: Re:

While I’m also wary of corporate control over information as well, since Rupwrt Murdoch and the Kochs do it all the time…

The current American government is incapable of doing what more sophisticated authoritiarian states are currently doing in terms of censorship.

Meanwhile the Republican Party is doing a fine job of ensuring that no other opposition exists in the states they chooae to “run”.

Tanner Andrews (profile) says:

Re: Re: Re:2 sophistication

Okay, I challenge you to explain exactly how China is ‘more sophisticated’ than the US in terms of censorship

Obviously the Great Firewall is the most notable example of censorship in Red China. However, they have a lot of effective censorship. Most criticism of the government on their social media seems to disappear promptly.

The speed and thoroughness suggest that there is a large army of official monitors keeping eyes on social media. They seem to prevent mentions of various things like
* tien an men square
* covid-19 origins
* sex harassment by party bosses
* treatment of uighurs, along with spelling of same
* free tibet
* dalai llama
* blind scientists
* re-education camps

They also block many web sites, and slow others to inutility. It is a lot of work to put up an illusion of a useful and informative array of accessible web services, while tamping down those which might lead to criticism of the officials in charge. Red China is clearly willing to do that work.

Tanner Andrews (profile) says:

Re: Re: Re:4 sophistication in eye of beholder

Red China has many clever technological measures, along with an army of jackbooted thugs, to enforce its censorship. At least the technological measures seem more sophisticated than what is used in the States, which generally relies solely on thugs rather than a Great Firewall.

Since the original request was to identify more sophisticated censorship, I think my answer suffices. If you want to move the goalposts to a certain measure of sophistication, then I will ask you to at least furnish the yardstick.

Art W says:

Just following the lead SCOTUS set themselves

Let’s face it. SCOTUS set this kind of behavior up when they decided the abortion law in Texas should just go into effect without a statement or legal reasoning. If SCOTUS can do it with a problematic Texas law. The the 5th Circuit can feel free do to so too… Even if this is not how things are supposed to work.

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Naughty Autie says:

Re: To put it so you can understand it...

The ISP is like a phone line, Twitter is like the company with a publicly availble phone number. The phone company has to let me call up PepsiCo, but if PepsiCo doesn’t like the way I’m talking about Mountain Dew, there’s nothing stopping them putting the phone down on me or even blocking my number if they deem my interactions with the call centre employees to be abusive on my part. Get it? Got it? Good.

Tanner Andrews (profile) says:

Re: not addressing the problem of poop from flying pigs

brief doesn’t address the common carrier claim

I have not seen a non-frivolous argument that twitter, facebook, &c., are any sorts of common carriers. It may be that the common carrier issue is omitted because of page limits.

These limits also lead to omission of discussion as to need for stronger umbrellas to avoid faeces from flying swine.

Joachim Martillo (user link) says:

HB 20 Regulates Conduct Not Freedom of Expression

The amicus brief of Copia Institute has one virtue. Unlike the typical pro-Net choice amicus brief, that of Copia does not make questionable assertions about common carriage.

HB 20 is overly complex, and Copia’s brief is correct that the phrase “social medium platform” is an artificial construct. It does not belong in the statute.

Massachusetts Common Carriage Law is short, sweet, and much nastier to a social medium ICS/common carrier than HB 20.

Massachusetts General Laws Chapter 159
Section 1. Every common carrier of merchandise or other property shall receive, transport and forward all property offered for such purposes by other such carriers as promptly, faithfully and impartially, at as low rates of charge, and in a manner and on terms and conditions as favorable to the carrier offering such property, as he on the same day and at the same place receives, forwards and transports, in the ordinary course of business, property of a like description offered by persons other than such carriers. Such carrier shall not discriminate against any particular person or subject him to any undue or unreasonable prejudice or disadvantage. The supreme judicial or superior court shall have jurisdiction in equity to enforce this section.
Section 2. Every such carrier who wilfully neglects or refuses to comply with the preceding section shall forfeit not less than fifty nor more than five hundred dollars, to the person offering the property for transportation.

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