In the 5th Circuit Court of Appeal’s latest decision about social media companies flagging and banning disinformation, “censorship” is the word of the day, and the concept of “content moderation,” as limited as it often seems, is a foreign concept.
Late on Friday, the court released its decision on Texas bill H.B. 20, rejecting “the idea that corporations have a freewheeling First Amendment right to censor what people say” while giving Texans the green light to sue social media companies for removing their insane posts about vaccines (sorry, I meant “carrots”) causing brain tumors. Of course, this is a—let’s be charitable and call it “interesting”—interpretation of what what online content moderation actually is.
Texas Governor Greg Abbott originally signed H.B. 20 into law last year, allowing Texans to sue large social media companies like Facebook and Twitter for moderating users’ content or banning their accounts. Tech companies argued this bill would restrict them from removing and moderating dangerous content, such as conspiracies, violent threats, or government propaganda. After objections from the biggest tech companies and trade groups, the law was quickly shot down by a federal court.
For some of these outlandish red state laws attacking big tech, that usually spells the end of it. Only H.B. 20 just wouldn’t die. In May, the 5th circuit court of appeals overruled the hold placed on the law by federal courts. That decision kicked the can over to the U.S. Supreme Court, and in a split 5-4 decision SCOTUS put another hold on the law and sent it back down to the lower courts.
Now back in the hands of the 5th circuit, conservative judges including Andy Oldham, a former legal advisor for Abbott who helped write the 100+ page decision, rejected “the idea that corporations have a freewheeling First Amendment right to censor what people say.” The decision further argues that the part of the bill that hinders companies from deleting posts “does not chill speech; instead, it chills censorship… H.B. 20’s prohibitions on censorship will cultivate rather than stifle the marketplace of ideas.”
In the end, it’s a matter of whether editorial discretion is a First Amendment right. Eric Goldman, a professor at Santa Clara University School of Law and co-director of the school’s High Tech Law Institute, said that this decision—at its simplest— is less of a judicial decision and more of a rehash of common right-wing talking points that “reflect the common standard normalization of government censorship that’s ubiquitous in MAGA circles.”
One of the industry-backed groups arguing against the bill, NetChoice, had sued Texas over its bill and has previously lauded SCOTUS’s decision to block H.B. 20 and send it back to the 5th circuit. In a statement, Carl Szabo—the vice president and general counsel of NetChoice—wrote “We remain convinced that when the U.S. Supreme Court hears one of our cases, it will uphold the First Amendment rights of websites, platforms, and apps.”
What Does the 5th Circuit Not Understand About Tech Policy?
Of course, it all goes back to Section 230 of the Communications Decency Act, which essentially says no internet host is liable for the third party content posted on its site. However, the 5th circuit decision refers to social media companies needing to “accept reputational and legal responsibility for the content it edits,” while lumping in social media companies with traditional news outlets. What makes the decision even more confusing is that it argues that 230 “only considers the removal of limited categories of content, like obscene, excessively violent, and similarly objectionable expression. It says nothing about viewpoint-based or geography-based censorship.” Of course, if you think moderating harmful conspiracy theories like anti-vaxxers is “viewpoint-based censorship,” then there’s little hope for any factual discussion online.
Goldman said the decision grossly misinterprets section 230, instead relying on some partisan beliefs in Congress over the letter of the law. He called it “Breitbart style discussion codified in a federal appellate judges writing.”
The ruling is particularly ill-informed and naïve about the state of internet speech and what’s long been happening on social media. At one point, the judges seem mention that platforms have an “obsession with terrorists and Nazis” in order to justify their moderation practices. They cite the need to avoid “speculating about ‘hypothetical’ and ‘imaginary’ cases. As if you really had to go so far to find examples of recognized anti-government groups and recognized terrorists and Nazis who have tried to spread their own brands of hate and violence across the biggest social media platforms.
All throughout the 113 pages of legal rigmarole spread throughout the decision document, there’s a sense of misunderstanding of what actually occurs with online content moderation. At one point the judges say a social media feed is “curated in the same sense that [their] mail is curated because the postal service has used automated screening to filter out hazardous materials and overweight packages, and then organized and affixed a logo to the mail before delivery.” This line misinterprets how people’s social media content algorithms work and otherwise uses a really backwards metaphor to describe user-created content put up for public consumption on a privately-owned platform.
But it’s all a larger screen for what the 5th circuit is arguing, leaving little room for question despite the mountains of back and forth discussion still ongoing in the space.
“It is undisputed that the platforms want to eliminate speech—not promote or protect it. And no amount of doctrinal gymnastics can turn the First Amendment’s protections for free speech into protections for free censoring.”
But whether this actually might change how social media companies operate is one that’s been debated in the legal community. Corbin Barthold, the policy counsel at the think tank TechFreedom, wrote in a lengthy Twitter thread that it could depend on differing interpretations of the 1985 case Zauderer v. Office of Disciplinary Counsel, which determined that companies must disclose some “factual and uncontroversial information” about services.
In a live Twitter Space meeting Monday, Barthold said this decision has implications outside of just social media. He refers to judicial decisions like Miami Herald Publish Co. v. Tornillo, which struck down requirements for equal space in newspapers to endorse certain candidates. The TechFreedom counsel added that decision “constitutes the exercise of editorial control and judgment which everybody has long understood, that is describing a First Amendment right to editorial control and judgment. The majority opinion [of the 5th circuit] says there is no such right.”
What makes this even more complicated is that a very similar bill passed in Florida was rejected by the 11th circuit court of appeals this past May. Goldman said the Supreme Court is teed up to hear more arguments about whether social media companies should be allowed to moderate content on their own sites, and this decision by the 5th circuit could also put more onus on the highest court in the U.S. to fully consider the matter.
Without a full overriding decision from the top of the judicial branch, there isn’t likely to be any end to this migraine-inducing legal hellscape that is the state of online speech.
Additional reporting by Dell Cameron.