Texans can now sue these social networks 1:08 (CNN) — Texans can now sue Facebook, Twitter and YouTube for allegedly censoring their content after a federal appeals court sided with the state law that restricts how social networks can moderate their platforms. The 15-word ruling that allows the law, which had been blocked last year, to go into effect has major potential consequences. More immediately, it creates new legal risks for tech giants and exposes them to a potential wave of litigation that legal experts say would be costly and difficult to defend. Texas law makes it illegal for any social media platform with 50 million or more monthly US users to “block, ban, remove, take down platform, demonetize, curtail momentum, restrict, deny equal access or visibility, or otherwise discriminates against expression.” The law creates enormous uncertainty about how social media will actually work in Texas, according to legal experts, and raises questions about what users’ online spaces will look like and what content they can find there, or whether companies can even do their own thing. services. The ruling also sets the stage for what could be a Supreme Court showdown over First Amendment rights and possibly a dramatic reinterpretation of those rights that affects not just the tech industry but all Americans, and decades of established precedent. In short, the decision has allowed Texas to declare an open season on tech platforms, with huge ramifications for everyone in the country. It could reshape the rights and obligations of all websites, our relationship with technology and the Internet, and even our basic and fundamental understanding of the First Amendment. Controversial law goes into effect The origins of the Texas law, HB 20, lie in the Republican criticism that tech platforms politically discriminate against conservative users, a charge the companies have denied and platform moderation researchers they say there is little systemic evidence to support it. The law, which seeks to address the perceived imbalance, was blocked in December by a district court judge who ruled it unconstitutional under the First Amendment. That decision came months after a similar law, in Florida, was also blocked for the same reason. But all that changed this week, when in oral arguments in the Fifth Circuit Court of Appeals, a three-judge panel confused social media platforms with Internet service providers, questioned whether Facebook and Twitter are websites, and said his surprise that a service like Twitter could “just decide” what content appears on its platform as a matter of course. Texas Attorney General Ken Paxton (2R) and Missouri Attorney General Eric Schmitt (2L) speak to reporters outside the US Supreme Court in Washington on April 26, 2022. The The result was Wednesday’s decision to vacate the lower court order that had prevented the Texas law from going into effect. The ruling quickly led Texas Attorney General Ken Paxton — who also has the power to sue tech companies under HB 20 — to declare victory. “My office just got another BIG WIN against BIG TECH,” Paxton’s office tweeted. The appeals court has not provided a written opinion explaining the decision, and it did not give technology advocacy groups that challenged the law time to file an appeal. “Apparently they don’t think this is disruptive or anything,” said Harold Feld, senior vice president and communications attorney at consumer group Public Knowledge. Whatever happens next, legal experts seem convinced the result will be chaos. Uncharted waters We are now in uncharted waters. For as long as the major US social networks have been around, they have been able to rely on Section 230 of the Communications Decency Act, a liability shield for how platforms handle user-generated content. Section 230 has rescued tech platforms from many lawsuits over the years. But Texas law is poised to change everything. Tech industry opponents have never had anything like HB 20 on their side. The scope of the law is truly broad, according to legal scholars. It is broad both in terms of its text—which explicitly names at least nine types of prohibited content moderation—and its subtext. What does it really mean to “reduce momentum” or “deny equal visibility”? The ambiguity of those terms gives carte blanche to creative claimants willing to stretch definitions of the English language, according to Jeff Kosseff, a professor of law at the US Naval Academy. “Just think of all the actions that could be seen as ‘denying equal visibility’ to user content,” Kosseff tweeted. State law also forces tech companies to fight the same battles over and over, prohibiting them from citing a successful defense in one court as a way to nip similar cases in the bud in other courts. “Those are all things you would do if you wanted litigation to be as attractive, expensive, and difficult to defend as possible,” said Ken White, a First Amendment lawyer better known as @Popehat on Twitter. In theory, Section 230 can still preempt state law and allow tech platforms to continue to evade liability. But the Fifth Circuit’s ruling calls into question much of that. How Social Media Platforms Might Respond Assuming the law is not affected by another injunction, social media platforms must now try to figure out how to comply, knowing that litigation is ongoing and things could still change, again. What does social media look like in a post-HB 20 world? It is not obvious. (Facebook and Twitter declined to comment for this story, and YouTube did not respond to a request for comment.) One option for technology platforms is to stop algorithmic content filtering or ranking altogether. While it’s tempting to imagine all of social media looking like the clean, reverse-chronological font you can find on Twitter today (if you know where to look), that’s simply the best case scenario and not the most likely, according to Daphne. Keller, a platform liability expert at Stanford University. The Texas law opens the door for residents to sue social platforms like Facebook, Twitter and YouTube for allegedly censoring their content. The reality might be more like email before the advent of spam filters. Because algorithms would be prohibited from removing or downgrading material, social media platforms would have to host spam, pornography, or hate speech indiscriminately, an “unmoderated dump,” as Keller described it in a tweet. However, that may not protect tech platforms from lawsuits either. Thanks to the broad language of the law, a plaintiff could try to argue that Facebook has muted a user because her speech is no longer visible beneath a mountain of spam. In this world, Facebook gets sued no matter what it does: sued for removing content and sued for not promoting content. After all, removing algorithmic amplification from some content could be seen as some sort of downgrade, which is illegal under HB 20, Kosseff told CNN. “Who knows!” he said, emphasizing how wide open the possibilities are. In the face of all this uncertainty, technology platforms could simply give up and stop offering services in Texas altogether. But not even leaving Texas could save them. Buried in the law is the prohibition against discriminating against Texans based on their geographic location. By pulling out of Texas, tech companies could expose themselves to accusations that they have geographically discriminated against Texans in violation of HB 20. And that’s without going into all the ways people might maliciously try to circumvent the law. With virtual private networks, it’s trivial for your computer to become “Texan,” even if you’re physically located in Mississippi or Massachusetts. Could anyone in those states benefit from HB 20 even if they don’t live in Texas? As Kosseff would say: Who knows! A Possible Supreme Court Showdown After Wednesday’s decision, the dispute over HB 20 could well end up in the Supreme Court. The groups that challenged HB 20 have at least two obvious options before them: They could go directly to the Supreme Court, or they could request a rehearing before a broader panel of appellate judges in the hope of a different outcome, which it could eventually lead to an appeal to the Supreme Court anyway. At least one justice, Conservative Clarence Thomas, has expressed interest in hearing a case that could allow the Court to rule on platform liability. A case involving HB 20 would present a great opportunity. If that happens, it’s no exaggeration to say that decades of First Amendment precedent may suddenly be in play. A fundamental question at the heart of the case is whether the state of Texas, a government entity, is forcing social media companies to submit speech under HB 20. This concept of “government-compelled speech” has been held unconstitutional for a long time under the First Amendment. But a Supreme Court ruling upholding HB 20 may call that long-standing precedent into question. Landmark decisions dealing with forced speech and editorial curation protections could be substantially reduced, if not nullified, in that scenario, Kosseff said. Because of the broad language of the law, a plaintiff could theoretically try to argue that Facebook has muted a user because their speech is no longer visible beneath a mountain of spam. In this world, Facebook gets sued no matter what it does: sued for removing content and sued for not promoting content. In light of the Court’s apparent willingness to overturn decades of precedent in Roe v. Wade, it’s not hard to imagine the Court reviewing some of your most basic First Amendment convictions. Then there is the fate of Section 230, the quarter-century-old liability shield. Because Section 230 is a federal law that affirms that websites have the right to manage their platforms (in addition to the First Amendment), a Supreme Court ruling upholding Texas state law could create conflict and doubts about federal preference. Could the Court use this opportunity to restrict or nullify Section 230 in the process? It is an unknown. Another issue that could have far-reaching consequences is HB 20’s attempt to define social media platforms as “common carriers” similar to phone companies, rail operators, and electric utilities. Whether you agree that social media platforms should be considered public services or not, a finding confirming that classification would give states around the world a path to regulate online platforms like never before in the history of the internet. , with broad implications for the digital economy. Of course, the Court may not even attempt to weigh in on some of these issues and simply leave them unresolved, perhaps giving HB 20 a thumbs up or thumbs down using the much-maligned shadow dossier, the analyst said. CNN legal Steve Vladeck. Depending on how it turns out, this scenario could be the worst of all worlds: the legal equivalent of blowing things up and letting everyone else pick up the pieces.
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