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.
Filed Under: 1st amendment, 5th circuit, content moderation, free speech, hb20, prior restraint, supreme court, texas
Companies: copia institute, techdirt
Comments on “And Now The Copia Institute Tells The US Supreme Court There’s A Big Problem With Texas’s Social Media Law”
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.
You Forget Whats Chilling
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.
Re:
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.
Re:
Have you tried not being a fuck-knuckle on someone else’s property?
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?
This comment has been flagged by the community. Click here to show it.
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.
Re: Re: Re:
I can’t even begin to explain how wrong this entire comment is.
Re: Re: Re:
Twitter isn’t a public square. “A bunch of people talk here” does not convert private property into a public square.
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.
Why? I find the internet (and TV, for that matter) to be pretty non-intrusive.
Re: Re: Re:2
Shit, we can’t even get common carrier rules to apply to ISPs, how in the world are we going to start applying them to individual websites?
This comment has been flagged by the community. Click here to show it.
Re: Re: Re:2
So Twitter is irrelevant and small when it comes to liability and it controls global free speech when Musk wants to buy it.
Re: Re: Re:3
Twitter’s size is irrelevant when it comes to its liability. Twitter does not control global free speech. Not even close.
Re: Re: Re:3
Your strawman is bad and you should feel bad.
Re:
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?
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.
This comment has been flagged by the community. Click here to show it.
Re: Re:
Lots of views get censored like misgendering or whatever. It’s not just the extremes but you already knew that.
Re: Re: Re:
Explain how misgendering is a view? Either you do it by mistake or you do it intentionally but it’s certainly not a viewpoint.
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.
Re: Re: Re:
Misgendering may not be an extreme, but it can and does lead to extremes such as rape and murder. I, therefore, do not see much of a difference. Got any other non-points to make, you walking hate crime?
Re:
[Hallucinates facts still not in evidence]
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”.
Re: Re: Re:
The current American government is incapable of doing what more sophisticated authoritiarian states are currently doing in terms of censorship.
Okay, I challenge you to explain exactly how China is ‘more sophisticated’ than the US in terms of censorship.
Re: Re: Re:2 sophistication
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.
Re: Re: Re:3
“Effective” =/= “sophisticated”.
Re: Re: Re:3
What AC says about about ‘effective’ not equalling ‘sophisticated’ is absolutely correct. In addition, Chinese citizens have shown themselves to be more sophisticated than PRC Government’s censorship, thereby rendering it wholly ineffective.
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.
Re:
Twitter. Is NOT. The. Government.
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.
Common Carrier or Not?
As much as I want SCOTUS to tell Texas, Florida and anyone else supporting HB20 to go screw off, the Netchoice brief doesn’t address the common carrier claim and Id be interested in what they have to say on the topic.
Re:
Why should the brief address that claim, other than to call bullshit? Social media services aren’t common carriers; anyone who thinks otherwise is only fooling themselves.
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.
Re:
Websites are the source/destination, not the conduit. To stupidly pretend differently you might as well say that every telephone is also a common carrier, that I can force you to carry my messages on your phone without your say.
Re: Re:
Posting your comment 6 hours and 20 minutes after someone else already made the same point with an equally clear explanation…
Re: not addressing the problem of poop from flying pigs
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.
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.
Re:
… said nobody literate, ever.