Texas’ Ridiculous Content Moderation Bill Put On Hold Until The Supreme Court Can Consider It
from the a-brief-reprieve dept
Normally, this wouldn’t be surprising, and normally, this wouldn’t even require a blog post, but because nothing in the 5th Circuit makes sense these days, it is a little surprising and it is worth a post to note that despite the insanity of Judge Andy Oldham’s ruling putting Texas’ content moderation law back on the books, he has now agreed to put that ruling on hold while the parties ask the Supreme Court to hear the case.
Again, such a thing is pretty standard in lots of cases, but this is the case where, back in May, Oldham decided to say that the law should go into effect immediately without any explanation at all. That necessitated a rush to the Supreme Court’s shadow docket, where the justices put the law on hold, in order to allow the regular, normal procedure to take place. As you’re well aware, months later, Oldham finally came out with his batshit crazy decision that required Oldham to ignore a century’s worth of precedent, as well as decades worth of conservative 1st Amendment orthodoxy in order to argue that the 1st Amendment’s association rights no longer apply to social media.
NetChoice and CCIA, the plaintiff trade groups in the case, asked Oldham to stay his ruling (that is, stop it from taking effect) in order to ask the Supreme Court to weigh in. A few weeks ago, Florida already asked the Supreme Court to hear its appeal of the 11th Circuit’s rejection of a similar law. The two laws are not identical, and differ in some potentially important ways, but the two appeals courts rulings are in clear conflict, and it is extremely likely that the Supreme Court will take these cases (and likely merge them into one), in what may be the most important Supreme Court case regarding the internet ever.
Perhaps surprisingly, Texas chose not to oppose the request for the stay. Again, in normal times, that wouldn’t be a surprise or even noteworthy. But, again, these are not normal times, and Texas politicians keep insisting they really, really need this law. Of course, they’re smart enough to know that it was going to the Supreme Court eventually anyway, so it probably did no one any good to play petty politics over this.
Of course, there’s the other theory as well: that this is a case of the dog (Texas) actually catching the car (a blatantly unconstitutional content moderation law), and having no idea what to actually do with it. I do kinda wonder if at least some of the folks in the Texas government were beginning to realize just how messed up things would be if the law actually went into effect, because it’s literally impossible to comply with. So, getting to wait until the Supreme Court reviews the case gives those folks an “out.” They don’t end up creating a huge mess for the internet just days before the midterm elections, and if (fingers crossed) the Supreme Court gets stuff right next year, they can just blame the Supreme Court to their gullible base, rather than have to deal with the fallout of their spite-driven nonsense.
Filed Under: 5th circuit, content moderation, hb 20, supreme court, texas
Companies: ccia, netchoice
Comments on “Texas’ Ridiculous Content Moderation Bill Put On Hold Until The Supreme Court Can Consider It”
The republicans – or most of them, anyway – are the law and order party right up to the point where lay and order get in the way of their personal agendas.
Problem
as long as the Supreme court says nothing, Texas can treat this as a 1/2 way point and MIGHT do it anyway, JUST to push it to happen, or not.
Iv found it works, that asking Conservatives to Find the Meaning of conservative, by the republican party. It has nothing to do with religious ideals. Its Corporate ideals.
I love explaining to people about making Key words and how the gov./corps love to use what you DONT know against us. And the biggest ideals that capitalists dont like is Nationalism and socialism.
scotus doesnt always make bad decisions
Dont think scotus is completely in gop pocket. They just today turned down Trumps attempt to get them to change the circuit court’s decision about the mar a lago docs, and there were no dissents.
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That could simply be because they’ve got what they wanted from him in the form of several justices and while the GOP still has to bow before their Dear Leader the SC doesn’t.
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That doesn’t mean they’re not in the GOP’s pocket, it just means they weren’t willing to expend long-term political capital to placate Trump. There’s a time limit on Trump now – even in the worst case scenario where he gets re-elected in 2024, he will cease to be of any importance on the day he leaves office, and the smarter money is on him being incapacitated due to ill health or legal/financial issues before then.
There’s no benefit to the GOP’s long-term plans to have made any different decision, and it could be harmful to them by setting precedent that could be used against the GOP in the future. Better to make the clearly correct decision in this specific case, and continue working behind the scenes to elect a competent fascist and overturn more civil rights.
Remember that while they were fighting this case, they botched a child trafficking and abuse case resulting in the alleged bad men going free… because they lost track of the witness.
So defending a performative unconstitutional law mattered more than protecting abused children & the abusers walked free as a bird.
But hey Paxton managed to hide in his wifes car to avoid service in another case so…
Why the hell would people still defend him & want him in the job?
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Moody v. Netchoice is in the Certpool
I can see Moody v. Netchoice in the Eleventh Circuit Certpool.
In the Fifth Circuit Certpool, I did not notice anything that is related to a social medium platform.
Back to the states
I’m going to call it now:
Like with abortion rights, the Supreme Court will twist precedent and say this issue should be passed back to the states so each state can make their own rules. But, wait, won’t this potentially create 50 different laws regulating free speech on the internet? Like the court’s attitude in the recent abortion case: “Not our problem. If the US needs a law regulating free speech on the internet, then Congress should pass a law”.
I also think this is what Texas is counting on, that the Supreme Court won’t make a ruling, but will let the states decide what to do. So in Texas, their law stands.
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“But, wait, won’t this potentially create 50 different laws regulating free speech on the internet? ”
Each state has laws regulating telecom and cable why should social media be any different?
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Because someone mentally competent, unlike Chozen, understands that websites reach everyone, unlike telecom and cable companies that have actual physical presences within states.
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Because social media isn’t a public utility like telecommunications or a one-way broadcast service like cable/satellite service. You try making a social media service that has to comply with 50 different laws saying 50 different things about the kinds of speech your service must or must not host at the same time. I doubt you’ll find a way to do it, but I wish you luck in the attempt.
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AT&T complies with 50 different sets of laws. The easiest solution is to make social media a common carrier. Then all these issues are moot.
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Okay, let’s see you handle this.
Assume Twitter voluntarily bans speech promoting the torturous anti-queer practice of “conversion ‘therapy’ ”. Five states pass laws that say such speech must be hosted by all platforms for speech and must remain visible to all peoples within that state. Another five states pass laws that ban the practice and bar platforms like Twitter from hosting any speech promoting the practice. The other forty states decide to abide by Twitter’s TOS.
Assuming both sets of laws are somehow found to be constitutional: How can Twitter simultaneously follow both sets of laws and keep its TOS the same without the use of geofencing or other such technological “blackout” measures?
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Either be big enough to have enough resources to BRIBE the 10 States with said conflicting laws, like AT&T, or just face criminal charges in those 10 states.
I may not be as ideologically inclined as Chozen, but even I know that Twitter is FUCKED if they try to comply in those 10 states. Geofencing and similar tech can be bypassed.
And I’d assume nothing but greed and harm from those 10 states anyway. If the law cannot be followed, it’s highly likely it was made to be broken, and with that, there’s nothing good about that particular law anyway.
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AT&T (and other telecom businesses) has direct control over where it does and does not do business. Twitter (along with any other website) only does to the extent it can enact geofencing or similar technologies, and those are inherently flawed (see VPNs, for example, as well as the fact that IP addresses are not a perfect way to determine the location of a user).
AT&T currently complies with 50 different sets of laws, but if doing so becomes unworkable, they can limit their services to certain states so that they no longer have to do so and still stay open. Twitter cannot do that anywhere near as effectively.
Additionally, even if Twitter can do so, smaller sites could not, but they would be required to in this hypothetical scenario. Again, smaller companies that provide the same services as AT&T don’t have to follow 50 different sets of regulations because they don’t provide service in all 50 states.
No; it only “solves” the issue of being forced to remove certain content to avoid liability and the issue of having to comply with both those laws as well as those that prohibit moderation of the same content at the same time at best; it does not solve any of the other, myriad issues at play here.
Moreover, treating Twitter as a common carrier creates other problems and, in my opinion, fails to be consistent with the reasons why we allow such regulation of common carriers to begin with.
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They wold only be moot because social media would cease to exist in any6thing like its current form.
Note, common carrier laws apply to companies conveying goods or message between two end points, that is where a one to one relationship exists, Social media is a one to may relationship, and losing people like you to force your way back on to the service will cause them to lose users. The more the bigots on a platform, the smaller their user base becomes, or it fails to grow, hence GAB, Truth social, 8kun etc, have fairly small user bases.
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You want to do business across all 50 states then you need to have a common regulatory scheme in place. That’s why AT&T can easily function under 50 different state codes.
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Twitter doesn’t have much of a choice in the matter. Websites have little say where they can be accessed as a practical matter. Geofencing exists, but it’s imperfect.
Additionally, Texas’s law states that it prohibits targeted websites from using such means to not offer their services to Texas or Texans to begin with. Assuming (without conceding) that that law holds up after all is said and done, such websites won’t have any choice to not do business in all 50 states or even try.
Finally, no one (aside from copyright maximalists) has ever (to my knowledge) even tried to blame telecom, ISPs, or common carriers for facilitating any communication, transaction, etc. or to pass laws that would put liability on them for doing so. Not even the most unreasonable seem to do so. This is very much not the case for social media, where a lot of people have blamed or sued them for actions by third parties and lots of politicians have attempted to (or succeeded in) passing laws that would hold them liable for such. As such, unlike with Twitter and other websites, AT&T, along with other telecom, ISPs, and common carriers, don’t have to worry about such contradictory regulations between different states, nor such negative public attention, nor such lawsuits (frivolous or not) or laws (unconstitutional or otherwise) to begin with, which makes it a whole lot easier to comply with the various regulations among the states.
If would be simply chaos if say 7 states had different laws re social media ,moderation , free
speech on social media,
there,s a reason theres common safety standards for cars trucks airplanes ,emmissions, all across the usa ,
ALL american states ban private citizens making explosive mines or chemical weapons or biological weapons
freedom has limits even in texas
try carrying dynamite or grenades on to a plane
see what happens
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“there,s a reason theres common safety standards for cars trucks airplanes ,emmissions, all across the usa ,”
Ahem no there isn’t. Why do you think there is always news about what California is doing with its auto standards?
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Because California has a specific exemption to those standards but is also something of a leader in setting standards that the rest of the industry soon follows, that’s why.
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Conveniently ignoring the EPA and FDA then.
Typical.