Censoring the “Censors”
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Privacy, Technology and Perspective
Censoring the “Censors”: This week, a U.S. District Court enjoined enforcement of Texas HB 20, a bill backed by Texas’ deeply conservative legislature and Governor Greg Abbott that would have prohibited “social media platforms” from “censoring” users’ “expressions” based on their “viewpoints.” The court issued its order on the day before HB 20 was to take effect.
Responding to claims that social media platforms are out to “silence conservative ideas [and] religious beliefs,” HB 20 specifically would have required platforms to publish anything and everything without monitoring, curating, or exercising any other editorial judgment at all.
Indeed, HB 20 would have forced platforms not only to publish whatever anyone posted, even if it were to violate the platforms’ policies, but also to present speech and speakers that violate the platforms’ policies “in the same way” as they present speech that does not -- with no exceptions for vaccine misinformation, terrorist content, and Holocaust denials, among other things. (Proposed amendments which would explicitly allow platforms to block such postings were rejected.)
You can read the main decretal portions of HB 20 by clicking on the following link:
https://statutes.capitol.texas.gov/Docs/CP/htm/CP.143A.htm
In NetChoice LLC v. Paxton, No. 1:21-cv-00840-RP (W.D. Tex. Dec. 1, 2021), the federal court in Austin has found HB 20 to be unconstitutional, as violating the platforms’ own First Amendment rights to moderate content which is disseminated on their platforms. Rejecting the claim that social media platforms are “common carriers” like broadband providers or telephone companies, the court explains that social media platforms do not transmit any and all users’ speech indiscriminately, but rather screen and sometimes moderate or curate user-generated content – and that whether such screening is done by algorithm or by hand, it is still the exercise of editorial discretion “to convey a message about the type of community the platform wishes to foster.”
A link to the NetChoice LLC v. Paxton opinion follows:
https://www.courthousenews.com/wp-content/uploads/2021/12/tx-social-media-ruling.pdf
Professor Eric Goldman has written an excellent, detailed analysis of the NetChoice LLC v. Paxton opinion, with more depth about the court’s analysis of transparency, First Amendment scrutiny, and the fact that the court rested its decision entirely on First Amendment grounds without even bothering with Section 230. You can read Professor Goldman’s analysis here:
We agree with Professor Goldman’s analysis entirely, but we would add one caution. The First Amendment’s sweep must be incredibly wide, and it is. It protects the publication of every opinion, be it ignorant, crazy, or cruel; and offers, too, the world’s widest range of protection for “facts” that a speaker believes to be true or fantasies which s/he imagines.
But its sweep is not unlimited. Many civil causes of action – for fraud, negligent misrepresentation, false advertising, personal defamation, commercial disparagement, tortious interference (in many states), invasions of privacy (under many circumstances), intentional infliction of emotional distress, and much else – live in harmony with the First Amendment, as do any number of criminal statutes such as those which criminalize wire fraud, mail fraud, or bomb threats.
We have zero patience – and even less sympathy – for spreaders of vaccine misinformation, terrorist content, or Holocaust denials, and we do not doubt that there is a limit “out there” beyond which the First Amendment would not, or should not, provide a defense.
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Hosch & Morris, PLLC is a boutique law firm dedicated to data privacy and protection, cybersecurity, the Internet and technology. Open the Future℠