The 15-word decision, which allows the law, which was blocked last year, to take effect, has significant potential consequences. This immediately creates new legal risks for technology giants and opens them up to a possible wave of litigation that legal experts say would be costly and difficult to defend.
The law creates huge uncertainty about how social media will actually work in Texas, according to legal experts, and raises questions about what consumers’ online spaces might look like and what content they can find there if companies are even able to manage their services. at all.
The ruling also lays the groundwork for what could be the Supreme Court’s opposition to the rights of the First Amendment and possibly a dramatic interpretation of those rights, affecting not only the technology industry but all Americans – and decades of precedent.
In short, the decision allowed Texas to announce an open season on technology platforms, with huge implications for everyone in the country. May change the rights and obligations of all websites; our connection to technology and the Internet; and even our basic, fundamental understanding of the First Amendment.
A controversial law enters into force
The origins of Texas law, HB 20, lie in long-standing Republican criticism that technology platforms discriminate against politically conservative consumers, an accusation that companies have dismissed and that researchers say the platform’s moderators have little systematic evidence to support it.
The law, which aims to address perceived imbalances, was blocked in December by a district court judge who ruled it unconstitutional under the First Amendment. The decision came months after a similar law was blocked in Florida for the same reason.
But that all changed this week, when an oral dispute in the Fifth District Court of Appeal led a three-judge panel to confuse social media platforms with Internet service providers; denies that Facebook and Twitter are websites; and expressed surprise that a service like Twitter could “just decide” what content appears on its platform as a natural issue.
The result was a decision Wednesday to overturn a lower court order that prevented Texas law from taking effect. The decision immediately prompted Texas Attorney General Ken Paxton – who is also empowered to sue technology companies under HB 20 – to declare victory.
“My office has just secured another BIG VICTORY against BIG TECH,” Paxton’s office tweeted.
The Court of Appeals did not provide a written statement explaining the decision and did not offer the technology advocacy groups challenging the law time to appeal.
“Obviously they don’t think it’s destructive or anything like that,” said Harold Feld, senior vice president and communications lawyer at Public Knowledge.
Whatever happens next, legal experts seem convinced that the result will be chaos.
Unstudied waters
We are now in unexplored waters. While the main social networks in the United States exist, they can rely on section 230 of the Communications Decency Act, a shield for responsibility for how platforms process user-generated content. Section 230 has saved technology platforms from many lawsuits over the years. But Texas law is ready to change everything. Opponents of the technology industry have never had something like HB 20 on their side.
The scope of the law is really huge, according to lawyers. It is broad both in terms of its text – explicitly naming at least nine types of moderation of prohibited content – and in terms of its subtext. What does “reducing” or “denying equal visibility” actually mean? The vagueness of these terms provides carte blanche for creative plaintiffs who want to expand the definitions of English, according to Jeff Cosef, a law professor at the US Navy.
“Just think of all the actions that can be seen as ‘denying equal visibility’ to user content,” Cosef tweeted.
State law also forces technology companies to fight the same battles over and over, forbidding them to cite successful defense in one court as a way to end such germ cases in other courts.
“These are all things you would do if you wanted to make the trial as attractive, expensive and difficult to defend as possible,” said Ken White, First Amendment attorney, better known as @Popehat on Twitter.
In theory, Section 230 could still overtake state law and allow technology platforms to continue to evade responsibility. But the decision of the fifth round calls much of this into question.
How social media platforms can react
Assuming the law is not hit by another order, social media platforms must now try to figure out how to comply with it, knowing that the trial is ongoing and things can still change – again.
What does social media look like in the world after HB 20? It is not obvious. (Facebook and Twitter declined to comment on the story; YouTube did not respond to a request for comment.)
One option for technology platforms is to completely stop algorithmic filtering or content ranking. While it’s tempting to imagine that all social media looks like the pure, reverse chronological feed you can actually find on Twitter today (if you know where to look), it’s just the best case scenario, not the most likely. according to Daphne Keller, a platform responsibility expert at Stanford University.
The reality may seem more like email before the advent of spam filters. As algorithms will be banned from removing or reducing material, social media platforms will have to host spam, porn or hate speech indiscriminately – “unmoderated dump”, as Keller tweeted.
However, this may not protect technology platforms from litigation. Thanks to the broad language of the law, a plaintiff may try to argue that Facebook has silenced a user because her speech is no longer visible under the mountain of spam. In this world, Facebook is on trial, no matter what it does: on trial for removing content and on trial for not promoting content.
Ultimately, removing algorithmic amplification of some content can in itself be seen as a kind of downgrade that is illegal under HB 20, Cosef told CNN. “Who knows!” he said, stressing how wide the opportunities are.
In the face of all this uncertainty, technology platforms may simply raise their hands and stop offering services in Texas altogether. But even a withdrawal from Texas may not save them. Buried in law is a prohibition of discrimination against Texans based on their geographical location. By withdrawing from Texas, technology companies could be accused of geographically discriminating against Texans in violation of HB 20.
And this is without going into all the ways in which people can try to maliciously play with the law. With VPNs, it’s trivial for your computer to become a Texan, even if your physical body is in Mississippi or Massachusetts. Can anyone in these states benefit from HB 20, even if they do not live in Texas? As Cosef may say: Who knows!
Possible battle of the Supreme Court
Following Wednesday’s ruling, the HB 20 dispute could end up in the Supreme Court. The groups that challenged HB 20 have at least two obvious options: they can go directly to the Supreme Court or they can request a retrial before a wider panel of appeals judges in the hope of a different outcome – which ultimately account may in any case lead to an appeal to the Supreme Court.
At least one judge, Conservative Clarence Thomas, has previously expressed interest in hearing a case that could allow the Court to rule on the platform’s liability. A case involving HB 20 would present a ripe opportunity. If that happens, it goes without saying that the decades-old precedent of the First Amendment may suddenly be on the line.
A key issue at the heart of the case is whether the state of Texas – a government entity – is forcing social media companies to take the HB 20 speech.
This concept of “government-forced speech” has long been considered unconstitutional under the First Amendment. But a Supreme Court ruling upholding HB 20 may call this long-standing precedent into question. Historic coercive decisions and defenses for editorial oversight could be significantly narrowed if not overturned in this scenario, Cosef said.
In the light of the Court’s apparent willingness to set aside the decades-old precedent in Roe v. Wade, it is not difficult to imagine that the Court is reviewing some of its most basic sentences under the First Amendment.
Then follows the fate of section 230, the quarter-century shield of responsibility. Because Section 230 is a federal law that affirms the rights of websites to manage their platforms (in addition to the First Amendment), a Supreme Court decision upholding Texas law can create conflict by raising questions about federal anticipation. Can the Court take this opportunity to limit or repeal section 230 in the proceedings? Anyone can guess.
Another issue that could have profound implications is HB 20’s attempt to define social media platforms as “shared carriers”, similar to telephone companies, railway operators and electric utilities. Whether you agree that social media platforms should be considered aids or not, a finding confirming this classification will give countries everywhere a roadmap for regulating online platforms as never before in the history of the Internet, with huge implications for the wider digital economy.
Of course, the Court may not even try to weigh some of these issues and simply leave them unresolved – perhaps by giving HB 20 a thumbs up or down, using the very infamous shadow dossier, CNN legal analyst Steve – suggested Vladek.
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 put the pieces together.
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