In SCOTUS NetChoice Cases, Texas’s And Florida’s Worst Enemy Is (Checks Notes) Elon Musk.
from the elon's-reputationally-responsibility dept
Next week, the Supreme Court will hear oral argument in NetChoice v. Paxton and Moody v. NetChoice. The cases are about a pair of laws, enacted by Texas and Florida, that attempt to force large social media platforms such as YouTube, Instagram, and X to host large amounts of speech against their will. (Think neo-Nazi rants, anti-vax conspiracies, and depictions of self-harm.) The states’ effort to co-opt social media companies’ editorial policies blatantly violates the First Amendment.
Since the laws are constitutional trainwrecks, it’s no surprise that Texas’s and Florida’s legal theories are weak. They rely heavily on the notion that what social media companies do is not really editing — and thus is not expressive. Editors, Texas says in a brief, are “reputationally responsible” for the content they reproduce. And yet, the state continues, “no reasonable observer associates” social media companies with the speech they disseminate.
This claim is absurd on its face. Everyone holds social media companies “reputationally responsible” for their content moderation. Users do, because most of them don’t like using a product full of hate speech and harassment. Advertisers do, out of a concern for their “brand safety.” Journalists do. Civil rights groups do. Even the Republican politicians who enacted this pair of bad laws do — that’s why they yell about how “Big Tech oligarchs” engage in so-called censorship.
That the Texas and Florida GOP are openly contemptuous of the First Amendment, and incompetent to boot, isn’t exactly news. So let’s turn instead to some delicious ironies.
Consider that the right’s favorite social media addict, robber baron, and troll Elon Musk has single-handedly destroyed Texas’s and Florida’s case.
After the two states’ laws were enacted, Elon Musk conducted something of a natural experiment in content moderation—one that has wrecked those laws’ underlying premise. Musk purchased Twitter, transformed it into X, and greatly reduced content moderation on the service. As tech reporter Alex Kantrowitz remarks, the new approach “privileges” extreme content from “edgelords.”
This, in turn, forces users to work harder to find quality content, and to tolerate being exposed to noxious content. But users don’t have to put up with this — and they haven’t. “Since Musk bought Twitter in October 2022,” Kantrowitz finds, “it’s lost approximately 13 percent of its app’s daily active users.” Clearly, users “associate” social-media companies with the speech they host!
It gets better. Last November, Media Matters announced that, searching X, it had found several iconic brands’ advertisements displayed next to neo-Nazi posts. Did Musk say, “Whatever, dudes, racist content being placed next to advertisements on our site doesn’t affect X’s reputation”? No. He had X sue Media Matters.
In its complaint, X asserts that it “invests heavily” in efforts to keep “fringe content” away from advertisers’ posts. The company also alleges that Media Matters gave the world a “false impression” about what content tends to get “pair[ed]” on the platform. These statements make sense only if people care — and X cares that people care — about how X arranges content on X.
X even states that Media Matters has tried to “tarnish X’s reputation by associating [X] with racist content.” It would be hard to admit more explicitly that social-media companies are “reputationally responsible” for, because they are “associated” with, the content they disseminate.
Consider also that Texas ran to Musk’s defense. Oblivious to how Musk’s vendetta hurts Texas’s case at the Supreme Court, Ken Paxton, the state’s attorney general, opened a fraud investigation against Media Matters (the basic truth of whose report Musk’s lawsuit does not dispute).
Consider finally how Texas’s last-ditch defense gets mowed down by the right’s favorite Supreme Court justice. According to Texas, social-media companies can scrub the reputational harm from spreading abhorrent content simply by “disavowing” that content. But none other than Justice Clarence Thomas has blown this argument apart. If, Thomas writes, a state could force speech on an entity merely by letting that entity “disassociate” from the speech with a “disclaimer,” that “would justify any law compelling speech.”
Only the government can “censor” speech. Texas and Florida are the true censors here, as they seek to restrict the expressive editorial judgment of social-media companies. That conduct is expressive. Just ask Elon Musk. And that expressiveness is fatal to Texas’s and Florida’s laws. Just ask Clarence Thomas. Texas’s and Florida’s social-media speech codes aren’t just unconstitutional, they can’t even be defended coherently.
Corbin Barthold is internet policy counsel at TechFreedom.
Filed Under: 1st amendment, clarence thomas, content moderation, editorial choices, elon musk, florida, reputational responsibility, supreme court, texas
Companies: netchoice, twitter, x
Comments on “In SCOTUS NetChoice Cases, Texas’s And Florida’s Worst Enemy Is (Checks Notes) Elon Musk.”
Man, it’s not enough for Elon to slam his own dick in a car door—now he’s gotta slam a state government’s dick, too. Masterful gambit, Mr. Musk. Just…fucking incredible work there, champ. 🙃
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Let’s hope the car doors they used were on Cybertrucks so those dicks would be severed.
Literally Musk tarnished X’s reputation by associating it with racist content.
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No. No. Just No.
It’s not racism, it’s free speech.
It’s not antisemitism, it’s free speech.
It’s not anti-vax speech, it’s free speech.
It’s not conspiracy theories, it’s free speech.
He’s not a stupid cunt with dumb face and a brain filled with toothpaste, he’s a free speech god!
… says Elon every morning when he looks in the mirror.
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It’s only free speech when he likes it. Otherwise he’ll bring the hammer down
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You know, I think that was kinda the point.
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I’m 99.9997% certain when Elon looks into the mirror in the morning what he says is, “Where’s my ketamine?” so he doesn’t have to connected to the loser he sees.
TFW you do a friendly fire and deplete 3 fascist war chests at once.
Nothing better than the far right wanting things both ways and scoring an own goal.
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Censorship is the silencing of opinions based on viewpoint. Censorship can be committed by governments or by private parties; it is the act of silencing that constitutes the censorship, not by whom it is done. It is irrelevant whether those who were silenced on a platform can speak elsewhere.
“Censorship occurs when individuals or groups try to prevent others from saying, printing, or depicting words and images.“
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Fuck off Mr Rapist, you aren’t welcome here.
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Try as you may, you can’t simply change the meaning of a word because it suits your narrative better.
Re: That is your opinion, and theirs.
You may really, really, REALLY want that to be true, but regardless of how tightly you hold your pearls it is not the law. Nor The Constitution’s 1st Amendment.
Of course, silencing hate speech is clearly censorship to MAGAts, and the White Christian Fascist dream of a theocracy. They, of course, want to silence women (all), and supporters of any outliers that have yet to succumb to their oppression.
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The definition of censorship has nothing to do with the law. Censorship is the silencing of opinions based on viewpoint, by people who control a platform and have the power to do that on that platform.
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The definition of censorship has nothing to do with the law.
ORLY? Then one must assume that any of the folks whining about being ‘censored’ have no legal recourse, apart from shutting up and taking it.
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They still have violence.
Oh wai, we saw Jan 6.
They already used that, and now we have to assume they will murder us for having opinions.
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…lied nobody literate, ever.
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https://xkcd.com/1357/
You don’t really care about censorship, you’re just a little man who’s just sick of being told you’re an asshole and shown the door.
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He’s willfully blind. He refuses to even see the door you’re trying to show him.
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By that logic, Florida and Texas are both trying to censor social media service owners by demanding that the courts strip those owners of their rights to free speech (“you can’t say that on my property…”) and free association (“…and we’ll kick you out if you do”). But somehow, I’m guessing you’ll be on the side of the state governments despite your avowed hatred of “censorship” (which is more a hatred of “websites moderating speech in ways you don’t like” than a hatred of actual censorship).
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Not at all. State governments have no business trying to control what may be said on social media platforms. The only things they can control are the things they are in charge of, such as public schools and libraries. Even there, they have a moral obligation to the foundational values of this country to honor freedom of speech and allow all viewpoints to be represented in books and other media made available through their offices.
In schools, however, only truth should be taught as truth. When there are widespread differences of opinion on a subject, that subject should be taught in a way that informs the students about the variety of beliefs but does not force a particular version on them.
Re: Re: Re: When there are widespread differences of opinion on a subject
So if there are enough flat earthers around we have to start ignoring science?
Or is it only when the idiots are talking about genitals and gender that science is optional?
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See, this sounds like you support the idea of “teaching the controversy” that is Intelligent Design (i.e., creationism) in science classes, which is a patently unconstitutional attempt by religious folks to sneak through the backdoor what can’t get through the front: the teaching of their beliefs to a captive audience of young, impressionable children regardless of the religious beliefs/practices of those children. After all, lots of Christians do have a difference of opinion on the subject of evolution.
Of course, now I can see the kind of “education” about queer people that you’d prefer to happen: “Some people believe the beating and eventual death of Nex Benedict is a horrific tragedy—but other people think that kid was ‘woke’ and therefore deserved to be beaten. Both sides must be heard and the correct answer is somewhere between the two. I am very smart.”
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Yup. I’m a Christian, and I totally believe that evolution is a thing and how all life on earth developed and diverged.
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So when will you accept the truth that trans women are indeed women?
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You first must define what a woman is.
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This got flagged?
You woke lefties screaming for the jews heads like nazis, calling everyone else nazis, and you poor snowflakes can’t even handle seeing the question “what is a woman?”
Pathetic
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If I put a horn on a horse, will you believe in unicorns?
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Can you impregnate them? If not then I guess they aren’t women.
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So all republicans are guilty of censorship?
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Constantly. There’s a reason I haven’t voted for a Republican in over forty years.
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Lied nobody literate, ever.
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What an astoundingly ignorant thing to say, as if you have no idea about word usage. Pretty much proof you’re spewings are worthless drivel.
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FTFY. YW.
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That’s not true. While a private party can leverage the power of the government to file (or threaten to file) a lawsuit and scare the target into silence, they can also use violence (or threats thereof) to chill someone’s speech—and that method doesn’t require any government power.
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Only the American government has to deal with everybody saying what they want to say. Private business owners don’t have to deal with what everybody is saying because they are private businesses. Not wanting to platform Nazis, whose goals are the murder of whole groups of the people, isn’t censorship, it’s a business decision just like not platforming a vegan calling for the murder of meat eaters isn’t censorship.
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Only Affirmative Qualifies
There is an important qualification being omitted: the editors, according to previous court rulings, are only reputationally responsible if the editors AFFIRMATIVELY reproduce the content. Texas notes that the platforms, until now, have claimed that they have NOT affirmatively been reproducing content, and typically disavow any content with which they disagree. Moreover, the general public views posts as being the work of the author, and not the platform. Also, messages from authors are reproduced quite passively by the platforms, with no affirmative action required before the content is posted to be seen by the public.
As such, editorial discretion does not permit the platforms to deny service because affirmative reproduction does not occur, and so platforms may not engage in viewpoint discrimination.
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ok koby troll
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Congratulations, Koby, you’ve just come out against the whole-ass First Amendment.
Any privately-owned platform can absolutely engage in viewpoint discrimination. Twitter can legally ban people for espousing pro-trans rhetoric and a Mastodon instance can legally ban people for espousing anti-trans rhetoric. To proclaim otherwise is to undercut the foundations of free speech and association, for we cannot have the right to speak and associate freely if we cannot have the right to not speak rhetoric and associate with people that we disagree with. Any law that would force a social media service to host a certain kind of legally protected speech is, by its very nature, unconstitutional.
Which reminds me…
Yes or no, Koby: Do you believe the government should have the right to compel any interactive web service into hosting any third-party speech that it would otherwise refuse to host?
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They are a private entity, so of course they can.
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In the real world, messages publisjed on a platform are absolutely clearly associated with the platform. You literally go to the platform to reach them, on a page plstered with the platform’s identity.
Re: Most people just see their doctor and get viagra
I never did understand the hardcore fetish for public humiliation you have.
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FTFY. YW.
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That last sentence should read: “As such, editorial discretion does permit the platforms to deny service…” Sorry for the flub.
Not how that works at all
The idea that the content on a platform doesn’t have any impact on the reputation of the platform so long as it’s not posted by the owners/moderates is so positively absurd as to beggar belief, but I suppose when you have no good arguments for your position you take/make up what you can get.
If the local bar becomes the go-to hangout for the town’s bigots and other scum the bar owner and/or bar staff don’t have to say a word or do a thing, it’s still going to be known as the asshole bar because that’s what people will expect to run into when they go there.
Likewise with social media, if bigots and/or other deranged people become a noticeable percentage of the user base, whether because the site owner likes them(Elon/Twitter), or because the site owner/moderators are prohibited from removing them via unconstitutional laws(every other platform if republicans get their way) the other users aren’t going to care why those people/content are there, they’re just going to notice that they are and judge the platform accordingly.
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Well, if no one was allowed to moderate, no site would suffer reputational damage from not moderating. But it’s still not something you want. If you don’t let anyone weed their lawns, you’re going to make all the lawns ugly. If you don’t let any city sweep the stinking bums off the streets, you’re going to make all the cities stink.
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Haven’t you understood yet that when it comes to social media you are the stinking bum.
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It is something you want, though. You’ve railed against moderation as “censorship” whenever it comes to “viewpoint discrimination” of the…oh, let’s say “very fine people” who espouse bigoted speech. You’ve spent the bulk of your time on this site whining about how Twitter and Facebook and other services are guilty of politically biased “censorship” for punishing people who post (among other things) queerphobic speech. Your whole spiel about “generic speech platforms” and “censorship is the act of the censor” is specifically tailored to the idea that no site should be able to moderate anything but spam, porn, and spam porn (those sick fucks…), and if it does moderate beyond that, the owner of that service should be endlessly harassed until that speech is allowed.
That you would spend all this time trying to make a case for effectively revoking the rights of a service to moderate speech that its owner doesn’t want to host, then turn around and say “oh yeah, no, you absolutely want a service to moderate speech”? It’s absolute proof that you want to force your speech onto other people’s sites without their permission and you’re trying to find some way to legally, morally, and ethically justify that intrusion in the same way a rapist tries to justify their actions after they’ve violated someone’s body (and bodily autonomy).
Also: Just come out and say you want to murder homeless people instead of helping them find a way back into society. You’re halfway there already with your insistence that every individual homeless person is a drug-addicted murderer(-in-waiting) no matter how long they’ve been homeless or why they became homeless.
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There’s nothing wrong with weeds in the lawn or pungent people on the sidewalks. Both those sounds like a ‘you’ problem and not a an actual problem.
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The statistics tell us that there are ~186000 persons in families (including children)/~57000 households that was homeless in January 2023. I’m guessing our resident bigot thinks all of them are drug-addled stinking bums.
Seems to me that everyone not measuring up to what he considers right and proper isn’t real to him and is abstracted down to non-persons that doesn’t count and should be done away with. Isn’t that the definition of a sociopath?
I know it’s kind of off-topic, but renaming Twitter “X” has got to be the most “How do you do, fellow kids?” thing Musk has ever done. I only really noticed how stupid the name is because Mr. Barthold actually called the site “X” instead of “ExTwitter” all through the article.
Recheck notes
For the first time in decades we have a SCOTUS that is aligned with the constitution.
You can bytch all you want about RvW (ignoring the stupidity of Democrats to not solidify that), but case after case has stuck to the very writings, not interpretation, of the constitution.
Florida and Texas are both nearly guaranteed dead just the questions alone show that.
Unfortunately it may kill 230 as well. For the very concern people, completely independent of party alignments, have been pointing out.
You can’t have it both ways. You claim 230 as a in-other-words common carrier. you claim 1A as speach.
If you moderate you loose 230. Moderation, editorial discretion, is speech. And thus you controlled such and are responsible for it.
If you don’t moderate, no governmental body has any right by CL to involve themselves in it.