stories about: "netchoice"

Texas Says Its Unconstitutional Content Moderation Law Should Still Go Into Effect While We Wait For Appeal; Judge: 'No, That's Not How This Works'

from the good-judge dept

Fri, Dec 10th 2021 3:36pm — Mike Masnick

Last week, the district court Judge Robert Pitman wrote an excellent ruling tossing out Texas' silly content moderation law as clearly unconstitutional under the 1st Amendment. As was widely expected, Texas has appealed the ruling to the 5th Circuit (undeniably, the wackiest of the Circuits, so who knows what may happen). However, in the meantime, Texas Attorney General Ken Paxton also asked the lower court to have the law go into effect while waiting for the appeals court to rule!

A stay is also supported by the widely recognized principle that enjoining a state law inflicts irreparable harm on the state, and that the public’s interest is aligned with the state’s interest and harm. Plaintiffs, in contrast, will not be irreparably harmed if a stay is granted. This is evidenced by the fact that (1) their supportive members stated they either already comply with aspects of the law or could not explain how the law would be burdensome in practice; and (2) Plaintiffs’ other members, filing as amici in opposition to the Preliminary Injunction, have demonstrated no harm will occur by enforcement of H.B. 20. For all these reasons, as further set forth below, a temporary stay while the Fifth Circuit considers the merits of this Court’s Preliminary Injunction is warranted.

It is really incredible:

The Attorney General has also raised questions never considered by the Fifth Circuit or the Supreme Court as to common carriage and the First Amendment. Correspondingly, the Attorney General has demonstrated a likelihood of success on the merits regarding Plaintiffs’ claims. While this Court may have rejected the Attorney General’s arguments, it did so by relying on readily distinguishable First Amendment case law and giving dispositive weight to a novel “fact”: whether the entity “screen[s] and sometimes moderate[s] or curate[s]” user generated content.

Therefore, given the novel nature of Plaintiffs’ claims and the substantial support for the Attorney General’s arguments, the Court of Appeals should have an opportunity to consider these issues before the injunction is implemented.

Basically, "even though we lost easily, we really made the better arguments, so therefore you should let the law go into effect." It's nonsense.

Remember, the key reason that the judge blocked the law from going into effect was because it so obviously violates the 1st Amendment, so letting the law go into effect fundamentally would violate 1st Amendment rights. Texas' argument here that blocking the law from going into effect "inflicts irreparable harm on the state" is positively bizarre. "If we can't violate the 1st Amendment rights of websites, then we're irreparably harmed" is a dumb argument. The plaintiffs in the case, NetChoice and CCIA fired back with the proper "LOL, wut?" opposition brief, though most of that focused on Paxton wanting the other parts of the case to continue to move forward in the district court while the appeal is happening (and basically to get into the intrusive discovery process).

The judge wasted little time in rejecting Paxton's nonsense:

The State largely rehashes the same arguments this Court rejected in its Order. The State’s new argument—that the preliminary injunction is overbroad—also asserts, again, that HB 20 is not unconstitutional. (Id. at 13). However, the Court already found that Plaintiffs are likely to establish that Sections 2 and 7 of HB 20 are unconstitutional and, as a result, fashioned a narrow, preliminary injunction. The Court is also not persuaded by the State’s contention that preliminarily enjoining the enforcement of Section 2—which contains disclosure requirements—was too broad a remedy because one of Plaintiffs’ members happens to already satisfy “several” disclosure requirements. (Id. at 13). Whether one of Plaintiffs’ members makes a business decision to publish certain disclosures, even if a few of those disclosures align with Section 2’s requirements, does not impact this Court’s decision that the State cannot constitutionally enforce Section 2’s many requirements imposed on social media platforms. Accordingly, the Court declines to stay its Order.

It also sides with NetChoice in staying the other parts of the case until after the appeal.

To preserve court resources and for judicial efficiency, whatever the posture of this case when it returns to this Court, the Court will exercise its discretion to stay this case and preserve its current posture

In other words, no, Paxton, you're not likely to succeed, and if you do, we can take up the issue then...

Filed Under: 1st amendment, appeals, content moderation, robert pitman, texas
Companies: ccia, netchoice

Texas Court Gets It Right: Dumps Texas's Social Media Moderation Law As Clearly Unconstitutional

Legal Issues

from the nicely-done dept

Thu, Dec 2nd 2021 9:35am — Mike Masnick

Back in June we reported on how Florida's social media moderation bill was tossed out as unconstitutional in a Florida court. The ruling itself was a little bit weird, but an easy call on 1st Amendment grounds. It was perhaps not surprising, but still stupid, to see Texas immediately step up and propose its own version of such a bill, which was signed in September. We again predicted that a court would quickly toss it out as unconstitutional.

And that's exactly what has happened.

There was some whispering and concerns that Texas' law was craftier than the Florida law, and parts of it might survive, but, nope. And this ruling is actually more thorough, and more clear than the slightly jumbled Florida ruling. It's chock full of good quotes. The only thing that sucks about this ruling, honestly, is that Texas is definitely going to appeal it to the 5th Circuit court of appeals and the 5th Circuit is the craziest of Circuits and seems, by far, the most likely to ignore the basic 1st Amendment concepts in favor of some weird Trumpist political grandstanding.

However, for this brief shining moment, let's celebrate a good, clean ruling that vindicates all the points many of us have been making about just how batshit crazy the Texas law was, and how it was so blatantly an infringement on the 1st Amendment rights of websites. There are a bunch of pages wasted on proving that the trade groups who brought the lawsuit have standing, which aren't worth rehashing here beyond saying that, yes, trade groups for internet companies have the standing to challenge this law.

From there, the ruling gets down to the heart of the matter, and it's pretty straight forward. Content moderation is the same thing as editorial discretion and that's clearly protected by the 1st Amendment.

Social Media Platforms Exercise Editorial Discretion Protected by the First Amendment

Judge Robert Pitman cites all the key cases here -- Reno v. ACLU (which tossed out all of the CDA -- minus Section 230 -- as unconstitutional, but also clearly established that the 1st Amendment applies to the internet), Sorrell v. IMS Health (establishing that the dissemination of information is speech) and, perhaps most importantly, Manhattan Cmty. Access v. Halleck, the Justice Brett Kavanaugh-authored ruling we've highlighted many times for making it quite clear that private internet companies are free to moderate however they see fit. It also cites the key case that was instrumental to the ruling in Florida: Miami Herald v. Tornillo, which made clear the 1st Amendment protections for editorial discretion:

Social media platforms have a First Amendment right to moderate content disseminated on their platforms. See Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1932 (2019) (recognizing that “certain private entities[] have rights to exercise editorial control over speech and speakers on their properties or platforms”). Three Supreme Court cases provide guidance. First, in Tornillo, the Court struck down a Florida statute that required newspapers to print a candidate’s reply if a newspaper assailed her character or official record, a “right of reply” statute. 418 U.S. at 243. In 1974, when the opinion was released, the Court noted there had been a “communications revolution” including that “[n]ewspapers have become big business . . . [with] [c]hains of newspapers, national newspapers, national wire and news services, and one-newspaper towns [being] the dominant features of a press that has become noncompetitive and enormously powerful and influential in its capacity to manipulate popular opinion and change the course of events.” Id. at 248–49. Those concerns echo today with social media platforms and “Big Tech” all the while newspapers are further consolidating and, often, dying out. Back to 1974, when newspapers were viewed with monopolistic suspicion, the Supreme Court concluded that newspapers exercised “editorial control and judgment” by selecting the “material to go into a newspaper,” deciding the “limitations on the size and content of the paper,” and deciding how to treat “public issues and public officials—whether fair or unfair.” Id. at 258. “It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time.”

There's also a fun bit for all the very silly people who keep insisting that social media websites are "common carriers" which could subject them to certain restrictions. The court says "nope," highlights how very different they are from common carriers, and moves on.

This Court starts from the premise that social media platforms are not common carriers. “Equal access obligations . . . have long been imposed on telephone companies, railroads, and postal services, without raising any First Amendment issue.” United States Telecom Ass’n v. Fed. Commc’ns Comm’n, 825 F.3d 674, 740 (D.C. Cir. 2016). Little First Amendment concern exists because common carriers “merely facilitate the transmission of speech of others.” Id. at 741. In United States Telecom, the Court added broadband providers to its list of common carriers. Id. Unlike broadband providers and telephone companies, social media platforms “are not engaged in indiscriminate, neutral transmission of any and all users’ speech.” Id. at 742. User-generated content on social media platforms is screened and sometimes moderated or curated. The State balks that the screening is done by an algorithm, not a person, but whatever the method, social media platforms are not mere conduits. According to the State, our inquiry could end here, with Plaintiffs not needing to prove more to show they engage in protected editorial discretion. During the hearing, the Court asked the State, “[T]o what extent does a finding that these entities are common carriers, to what extent is that important from your perspective in the bill’s ability to survive a First Amendment challenge?” (See Minute Entry, Dkt. 47). Counsel for the State responded, “[T]he common carriage doctrine is essential to the First Amendment challenge. It’s why it’s the threshold issue that we’ve briefed . . . . It dictates the rest of this suit in terms of the First Amendment inquiry.” (Id.). As appealing as the State’s invitation is to stop the analysis here, the Court continues in order to make a determination about whether social media platforms exercise editorial discretion or occupy a purgatory between common carrier and editor.

There's also a short footnote totally dismissing the fact that the Texas bill, HB20, tries to just outright declare social media sites as common carriers. That's not how any of this works.

HB 20’s pronouncement that social media platforms are common carriers... does not impact this Court’s legal analysis.

The judge briefly notes that social media is obviously different in many ways than newspapers, and that AI-based moderation is certainly a technological differentiator, but then brings it back around to basic principles: it's still all editorial discretion.

This Court is convinced that social media platforms, or at least those covered by HB 20, curate both users and content to convey a message about the type of community the platform seeks to foster and, as such, exercise editorial discretion over their platform’s content.

In fact, Texas legislators' and the governor's own hubris helped sink this bill by admitting in the bill itself and in quotes about the bill, how this is all about editorial discretion.

Indeed, the text of HB 20 itself points to social media platforms doing more than transmitting communication. In Section 2, HB 20 recognizes that social media platforms “(1) curate[] and target[] content to users, (2) place[] and promote[] content, services, and products, including its own content, services, and products, (3) moderate[] content, and (4) use[] search, ranking, or other algorithms or procedures that determine results on the platform.” Tex. Bus. & Com. Code § 120.051(a)(1)–(4). Finally, the State’s own basis for enacting HB 20 acknowledges that social media platforms exercise editorial discretion. “[T]here is a dangerous movement by social media companies to silence conservative viewpoints and ideas.” Governor Abbott Signs Law Protecting Texans from Wrongful Social Media Censorship, OFFICE OF THE TEX. GOVERNOR (Sept. 9, 2021), https://gov.texas.gov/news/post/governorabbott- signs-law-protecting-texans-from-wrongful-social-media-censorship. “Texans must be able to speak without being censored by West Coast oligarchs.” Bryan Hughes (@SenBryanHughes), TWITTER (Aug. 9, 2021, 4:34 PM), https://twitter.com/SenBryanHughes/status/ 1424846466183487492 Just like the Florida law, a “constant theme of [Texas] legislators, as well as the Governor . . . , was that the [platforms’] decisions on what to leave in or take out and how to present the surviving material are ideologically biased and need to be reined in.” NetChoice, 2021 WL 2690876, at *7. Without editorial discretion, social media platforms could not skew their platforms ideologically, as the State accuses of them of doing. Taking it all together, case law, HB 20’s text, and the Governor and state legislators’ own statements all acknowledge that social media platforms exercise some form of editorial discretion, whether or not the State agrees with how that discretion is exercised.

And then, once it's clear that moderating is the same as editorial discretion, it's easy to see how the bill's restrictions are a clear 1st Amendment problem. It does this, first, by highlighting the impossible choices the bill puts in front of social media companies, using the example of content about Nazis.

The State claims that social media platforms could prohibit content categories “such as ‘terrorist speech,’ ‘pornography,’ ‘spam,’ or ‘racism’” to prevent those content categories from flooding their platforms. (Resp. Prelim. Inj. Mot., Dkt. 39, at 21). During the hearing, the State explained that a social media platform “can’t discriminate against users who post Nazi speech . . . and [not] discriminate against users who post speech about the antiwhite or something like that.” (See Minute Entry, Dkt. 47). Plaintiffs point out the fallacy in the State’s assertion with an example: a video of Adolf Hitler making a speech, in one context the viewpoint is promoting Nazism, and a platform should be able to moderate that content, and in another context the viewpoint is pointing out the atrocities of the Holocaust, and a platform should be able to disseminate that content. (See id.). HB 20 seems to place social media platforms in the untenable position of choosing, for example, to promote Nazism against its wishes or ban Nazism as a content category. (Prelim. Inj. Mot., Dkt. 12, at 29). As YouTube put it, “YouTube will face an impossible choice between (1) risking liability by moderating content identified to violate its standards or (2) subjecting YouTube’s community to harm by allowing violative content to remain on the site.”

And thus:

HB 20’s prohibitions on “censorship” and constraints on how social media platforms disseminate content violate the First Amendment.

Why?

HB 20 compels social media platforms to significantly alter and distort their products. Moreover, “the targets of the statutes at issue are the editorial judgments themselves” and the “announced purpose of balancing the discussion—reining in the ideology of the large social-media providers—is precisely the kind of state action held unconstitutional in Tornillo, Hurley, and PG&E.” Id. HB 20 also impermissibly burdens social media platforms’ own speech. Id. at *9 (“[T]he statutes compel the platforms to change their own speech in other respects, including, for example, by dictating how the platforms may arrange speech on their sites.”). For example, if a platform appends its own speech to label a post as misinformation, the platform may be discriminating against that user’s viewpoint by adding its own disclaimer. HB 20 restricts social media platforms’ First Amendment right to engage in expression when they disagree with or object to content.

At this point, the court dismisses, in a footnote, the two cases that very silly people always bring up: Pruneyard and Rumsfeld. Pruneyard is the very unique shopping mall case, which has very limited reach, and Rumsfeld is about a university allowing or not allowing military recruiters on campus. Supporters of efforts to force websites to host speech point to both cases as some sort of "proof" that it's okay to compel speech, but both are very narrowly focused, and anyone relying on either is doing a bad faith "well, in these cases you could compel speech, so in this case obviously you can as well." But the judge isn't having any of it.

The Court notes that two other Supreme Court cases address this topic, but neither applies here. PruneYard Shopping Center v. Robins is distinguishable from the facts of this case. 447 U.S. 74 (1980). In PruneYard, the Supreme Court upheld a California law that required a shopping mall to host people collecting petition signatures, concluding there was no “intrusion into the function of editors” since the shopping mall’s operation of its business lacked an editorial function. Id. at 88. Critically, the shopping mall did not engage in expression and “the [mall] owner did not even allege that he objected to the content of the [speech]; nor was the access right content based.” PG&E, 475 U.S. at 12. Similarly, Rumsfeld v. Forum for Academic & Institutional Rights, Inc. has no bearing on this Court’s holding because it did not involve government restrictions on editorial functions. 547 U.S. 47 (2006). The challenged law required schools that allowed employment recruiters on campus to also allow military employment recruiters on campus—a restriction on “conduct, not speech.” Id. at 62, 65. As the Supreme Court explained, “accommodating the military’s message does not affect the law schools’ speech, because the schools are not speaking when the host interviews and recruiting receptions.”

Even more importantly, the court rejects the transparency requirements in HB20. Again, this part was one that some people thought might slide through and be left in place. We've discussed, multiple times, how transparency on these issues is important, but that mandated transparency actually creates serious problems. The court, thankfully, agrees.

To pass constitutional muster, disclosure requirements like these must require only “factual and noncontroversial information” and cannot be “unjustified or unduly burdensome.” NIFLA, 138 S. Ct. at 2372. Section 2’s disclosure and operational provisions are inordinately burdensome given the unfathomably large numbers of posts on these sites and apps. For example, in three months in 2021, Facebook removed 8.8 million pieces of “bullying and harassment content,” 9.8 million pieces of “organized hate content,” and 25.2 million pieces of “hate speech content.” (CCIA Decl., Dkt. 12-1, at 15). During the last three months of 2020, YouTube removed just over 2 million channels and over 9 million videos because they violated its policies. (Id. at 16). While some of those removals are subject to an existing appeals process, many removals are not. For example, in a three-monthperiod in 2021, YouTube removed 1.16 billion comments. (YouTube Decl., Dkt. 12-3, at 23–24). Those 1.16 billion removals were not appealable, but, under HB 20, they would have to be. (Id.). Over the span of six months in 2018, Facebook, Google, and Twitter took action on over 5 billion accounts or user submissions—including 3 billion cases of spam, 57 million cases of pornography, 17 million cases of content regarding child safety, and 12 million cases of extremism, hate speech, and terrorist speech. (NetChoice Decl., Dkt. 12-2, at 8). During the State’s deposition of Neil Christopher Potts (“Potts”), who is Facebook’s Vice President of Trust and Safety Policy, Potts stated that it would be “impossible” for Facebook “to comply with anything by December 1, [2021]. . . [W]e would not be able to change systems in that nature. . . . I don’t see a way that we would actually be able to go forward with compliance in a meaningful way.” (Potts Depo., Dkt. 39-2, at 2, 46). Plaintiffs also express a concern that revealing “algorithms or procedures that determine results on the platform” may reveal trade secrets or confidential and competitively-sensitive information. (Id. at 34) (quoting Tex. Bus. & Com. Code § 120.051(a)(4)).

The Section 2 requirements burden First Amendment expression by “forc[ing] elements of civil society to speak when they otherwise would have refrained.” Washington Post v. McManus, 944 F.3d 506, 514 (4th Cir. 2019). “It is the presence of compulsion from the state itself that compromises the First Amendment.” Id. at 515. The provisions also impose unduly burdensome disclosure requirements on social media platforms “that will chill their protected speech.” NIFLA, 138 S. Ct. at 2378. The consequences of noncompliance also chill the social media platforms’ speech and application of their content moderation policies and user agreements. Noncompliance can subject social media platforms to serious consequences. The Texas Attorney General may seek injunctive relief and collect attorney’s fees and “reasonable investigative costs” if successful in obtaining injunctive relief. Id. § 120.151.

I'll just note that we had just mentioned that Washington Post v. McManus case earlier this week in calling out the Washington Post's hypocrisy in calling for mandatory disclosure rules for internet companies...

And Judge Pitman isn't done yet with the constitutional problems of HB20.

HB 20 additionally suffers from constitutional defects because it discriminates based on content and speaker. First, HB 20 excludes two types of content from its prohibition on content moderation and permits social media platforms to moderate content: (1) that “is the subject of a referral or request from an organization with the purpose of preventing the sexual exploitation of children and protecting survivors of sexual abuse from ongoing harassment,” and (2) that “directly incites criminal activity or consists of specific threats of violence targeted against a person or group because of their race, color, disability, religion, national origin or ancestry, age, sex, or status as a peace officer or judge.” Tex. Civ. Prac. & Rem. Code § 143A.006(a)(2)–(3). When considering a city ordinance that applied to ‘“fighting words’ that . . . provoke violence[] ‘on the basis of race, color, creed, religion[,] or gender,”’ the Supreme Court noted that those “who wish to use ‘fighting words’ in connection with other ideas—to express hostility, for example, on the basis of political affiliation, union membership, or []sexuality—are not covered.” R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 391 (1992). As Plaintiffs argue, the State has “no legitimate reason to allow the platforms to enforce their policies over threats based only on . . . favored criteria but not” other criteria like sexual orientation, military service, or union membership. (Prelim. Inj. Mot., Dkt. 12, at 35–36); see id.

There's also some good language in here for those who keep insisting that setting (often arbitrary) size barriers or carveouts on these laws is perfectly fine. Not so if they lead to discriminatory impact on venues for speech:

HB 20 applies only to social media platforms of a certain size: platforms with 50 million monthly active users in the United States. Tex. Bus. & Com. Code § 120.002(b). HB 20 excludes social media platforms such as Parler and sports and news websites. (See Prelim. Inj. Mot., Dkt. 12, at 17). During the regular legislative session, a state senator unsuccessfully proposed lowering the threshold to 25 million monthly users in an effort to include sites like “Parler and Gab, which are popular among conservatives.” Shawn Mulcahy, Texas Senate approves bill to stop social media companies from banning Texans for political views, TEX. TRIBUNE (Mar. 30, 2021), https://www.texas tribune.org/2021/03/30/texas-social-media-censorship/. “[D]iscrimination between speakers is often a tell for content discrimination.” NetChoice, 2021 WL 2690876, at *10. The discrimination between speakers has special significance in the context of media because “[r]egulations that discriminate among media, or among different speakers within a single medium, often present serious First Amendment concerns.” Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 659 (1994). The record in this case confirms that the Legislature intended to target large social media platforms perceived as being biased against conservative views and the State’s disagreement with the social media platforms’ editorial discretion over their platforms. The evidence thus suggests that the State discriminated between social media platforms (or speakers) for reasons that do not stand up to scrutiny.

And, of course, everyone's favorite: HB 20 is unconstitutionally vague.

First, Plaintiffs take issue with HB 20’s definition for “censor:” “block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression.” Tex. Civ. Prac. & Rem. Code § 143A.001(1). Plaintiffs argue that requiring social media platforms to require “equal access or visibility to” content is “hopelessly indeterminate.” (Prelim. Inj. Mot., Dkt. 12, at 37) (quoting id.). The Court agrees. A social media platform is not static snapshot in time like a hard copy newspaper. It strikes the Court as nearly impossible for a social media platform—that has at least 50 million users—to determine whether any single piece of content has “equal access or visibility” versus another piece of content given the huge numbers of users and content. Moreover, this requirement could “prohibit[] a social media platform from” displaying content “in the proper feeds”

There are some other drafting oddities that the Judge calls out including this one:

HB 20 empowers the Texas Attorney General to seek an injunction not just against violations of the statute but also “potential violations.” Tex. Civ. Prac. & Rem. Code § 143A.008. Unlike other statutes that specify that the potential violation must be imminent, HB 20 includes no such qualification. See, e.g., Tex. Occ. Code § 1101.752(a) (authorizing the attorney general to seek injunctive relief to abate a potential violation “if the commission determines that a person has violated or is about to violate this chapter”). Subjecting social media platforms to suit for potential violations, without a qualification, reaches almost all content moderation decisions platforms might make, further chilling their First Amendment rights.

As in the Florida case, the court here notes that even if there were some reason under which the law should be judged under intermediate, rather than strict, scrutiny, it would still fail.

HB 20 imposes content-based, viewpoint-based, and speaker-based restrictions that trigger strict scrutiny. Strict scrutiny is satisfied only if a state has adopted ‘“the least restrictive means of achieving a compelling state interest.”’ Americans for Prosperity Found. v. Bonta, 141 S. Ct. 2373, 2383, 210 L. Ed. 2d 716 (2021) (quoting McCullen v. Coakley, 573 U.S. 464, 478 (2014)). Even under the less rigorous intermediate scrutiny, the State must prove that HB 20 is ‘“narrowly tailed to serve a significant government interest.’” Packingham v. North Carolina, 137 S. Ct. 1730, 1736 (2017) (quoting McCullen, 573 U.S. at 477). The proclaimed government interests here fall short under both standards.

It's not even a difficult call. It's the kind of "duh" explanation that made it easy for us to say upfront that this law was so obviously unconstitutional:

The State’s first interest fails on several accounts. First, social media platforms are privately owned platforms, not public forums. Second, this Court has found that the covered social media platforms are not common carriers. Even if they were, the State provides no convincing support for recognizing a governmental interest in the free and unobstructed use of common carriers’ information conduits. Third, the Supreme Court rejected an identical government interest in Tornillo. In Tornillo, Florida argued that “government has an obligation to ensure that a wide variety of views reach the public.” Tornillo, 418 U.S. at 247–48. After detailing the “problems related to government-enforced access,” the Court held that the state could not commandeer private companies to facilitate that access, even in the name of reducing the “abuses of bias and manipulative reportage [that] are . . . said to be the result of the vast accumulations of unreviewable power in the modern media empires.” Id. at 250, 254. The State’s second interest—preventing “discrimination” by social media platforms—has been rejected by the Supreme Court. Even given a state’s general interest in anti-discrimination laws, “forbidding acts of discrimination” is “a decidedly fatal objective” for the First Amendment’s “free speech commands.”...

And, the court practically laughs out loud at the idea that HB 20 was "narrowly tailored."

Even if the State’s purported interests were compelling and significant, HB 20 is not narrowly tailored. Sections 2 and 7 contain broad provisions with far-reaching, serious consequences. When reviewing the similar statute passed in Florida, the Northern District of Florida found that that statute was not narrowly tailored “like prior First Amendment restrictions.” NetChoice, 2021 WL 2690876, at *11 (citing Reno, 521 U.S. at 882; Sable Commc’n of Cal., Inc. v. FCC, 492 U.S. 115, 131 (1989)). Rather, the court colorfully described it as “an instance of burning the house to roast a pig.” Id. This Court could not do better in describing HB 20.

End result: injunction granted, the law does not go into effect today as originally planned. Texas will undoubtedly now appeal, and we can only hope the 5th Circuit doesn't muck things up, as it's been known to do. Depending on how this plays out, as well as how the 11th Circuit handles the Florida case, it's possible this could hit the Supreme Court down the road. Hopefully, both the 11th and the 5th actually take heed of Justice Kavanaugh's words in the Halleck case, and choose to uphold both district court rulings -- and we can get past this silly Trump-inspired moral panic attack on the 1st Amendment rights of social media platforms -- the very same rights that enable them to create spaces for us to speak and share our own ideas.

Filed Under: 1st amendment, content moderation, florida, hb20, section 230, social media, strict scrutiny, texas
Companies: ccia, netchoice

Texas' Unconstitutional Social Media Censorship Bill Challenged In Court, Just As Texas Joins The Legal Fight For Florida's Unconstitutional Social Media Bill

Legal Issues

from the florida-and-texas;-what-a-pair dept

Fri, Sep 24th 2021 3:43pm — Mike Masnick

Texas and Florida. Florida and Texas. Two states with governors who have decided that culture warrioring and "owning the libs" is way more important than the Constitution they swore to protect and uphold. As you'll recall, last month Texas Governor Greg Abbott decided to use the internet services he hates to livestream his signing of the clearly unconstitutional HB20 that seeks to block social media sites from moderating how they see fit.

As we had pointed out, Florida had beaten Texas to the punch on that and a court had already tossed out the bill as an unconstitutional infringement of 1st Amendment rights. Now a state that was looking to actually do things correctly would maybe see that and recognize that maybe it's not worth wasting millions of taxpayer dollars to do the exact same thing, but Texas went ahead.

And, now, the same two organizations that sued to strike down Florida's law, NetChoice and CCIA, have similarly sued to strike down Texas' law.

At bottom, H.B. 20 imposes impermissible content- and viewpoint-based classifications to compel a select few platforms to publish speech and speakers that violate the platforms’ policies—and to present that speech the same way the platforms present other speech that does not violate their policies. Furthermore, H.B. 20 prohibits the platforms from engaging in their own expression to label or comment on the expression they are now compelled to disseminate. And in light of the statute’s vague operating provisions, every single editorial and operational choice platforms make could subject those companies to myriad lawsuits.

These restrictions—by striking at the heart of protected expression and editorial judgment—will prohibit platforms from taking action to protect themselves, their users, advertisers, and the public more generally from harmful and objectionable matter. At a minimum, H.B. 20 would unconstitutionally require platforms like YouTube and Facebook to disseminate, for example, pro-Nazi speech, terrorist propaganda, foreign government disinformation, and medical misinformation. In fact, legislators rejected amendments that would explicitly allow platforms to exclude vaccine misinformation, terrorist content, and Holocaust denial.

Additional H.B. 20 provisions will work to chill the exercise of platforms’ First Amendment rights to exercise their own editorial discretion and to be free from state-compelled speech. H.B. 20 will impose operational mandates and disclosure requirements designed to prescriptively manage—and therefore interfere with and chill—platforms’ exercise of editorial discretion. In a series of intrusive provisions, H.B. 20 requires “social media platforms” to publish how they intend to exercise their discretion, document in excruciating detail how they exercise their editorial discretion over potentially billions of pieces of content, and operate inherently burdensome and unworkable individualized complaint mechanisms—all of which together work to compel or otherwise challenge the platforms’ countless daily uses of editorial discretion.

Notably, the lawsuit does not challenge the email filter provisions in the law, which effectively means that on December 2nd, if no one else tries to stop it, spam filters may be in violation of Texas' law. As Prof. Eric Goldman has noted, any spammer whose email is caught in a spam filter will then be able to sue the filter provider and seek statutory damages. Fun stuff!

Meanwhile, also this week, just to show how totally committed Texas Attorney General Ken Paxton is to unconstitutional restrictions on the free exercise of editorial discretion, he also filed an amicus brief in the appeal of the Florida ruling. A bunch of other states (Alabama, Alaska, Arizona, Arkansas, Kentucky, Mississippi, Missouri, Montana, and South Carolina) all signed on, but this is a Texas product. Also, it's hot garbage. It insists that these bills don't regulate speech -- when they very, very clearly do.

But the district court’s First Amendment analysis is riddled with errors. It veered off course from the outset by concluding that S.B. 7072 regulates speech, when that law instead regulates conduct that is unprotected by the First Amendment: social media platforms’ arbitrary application of their content moderation policies.

I mean, what? Of course, content moderation policies are protected by the 1st Amendment. It's basic editorial discretion.

The entire amicus brief tries to claim that editorial discretion is "conduct" and not speech -- and that would upend basically all 1st Amendment precedent. And if Texas actually got its way with this, then that would enable the government to regulate who could appear on Fox News and other media organizations, claiming that those demands are "conduct, not speech."

Nothing in S.B. 7072’s neutrality and disclosure provisions regulates the speech of Plaintiffs or the members of their trade associations—they “neither limit[] what [Plaintiffs or their members] may say nor require[] them to say anything.” FAIR, 547 U.S. at 60. Instead, at most these provisions regulate the conduct of Plaintiffs and their members: their arbitrary and blunderbuss content-moderation policies

This is... wrong. Requiring them not to moderate certain content (as the Florida bill does for political speech) is absolutely requiring them to associate with speech they may disagree with -- and such compelled association is a violation of the 1st Amendment. Did Ken Paxton actually graduate law school without learning this?

Like Florida did in its case, the Texas Amicus brief relies heavily on Rumsfeld v. FAIR. The district court in Florida rightly pointed out that FAIR does not apply here and is easily distinguished:

The Florida statutes now at issue, unlike the state actions in FAIR and PruneYard, explicitly forbid social media platforms from appending their own statements to posts by some users. And the statutes compel the platforms to change their own speech in other respects, including, for example, by dictating how the platforms may arrange speech on their sites. This is a far greater burden on the platforms’ own speech than was involved in FAIR or PruneYard.

But, Texas insists otherwise -- and now we have to hope that the panel of Judges on the 11th Circuit recognizes the absolute garbage that is Texas' brief.

Filed Under: censorship, content moderation, florida, social media, texas
Companies: ccia, netchoice

As Expected: Judge Grants Injunction Blocking Florida's Unconstitutional Social Media Law

Content Moderation

from the boom-goes-the-dynamite dept

Wed, Jun 30th 2021 5:24pm — Mike Masnick

I'm sorry, but those of you looking forward to riding the Friend Feed Flume at Zuckland or the Search Engine Shuffle at GooglePark are probably out of luck. Florida's new social media law (and its theme park owner exemption) is not going to become law.

We've written a few times about Florida's blatantly corrupt and unconstitutional social media content moderation law -- complete with its special carveout for Disney*. The legal challenge to the bill had a hearing in court on Monday, and as we expected, Florida's arguments in favor of the bill were not well received. I listened to the entire hearing and, to put it mildly, the judge was not impressed by Florida's arguments. At one point, he literally asked the lawyer defending the bill if he had ever come across a more poorly drafted piece of legislation. That's generally not a good sign.

And, now, with just hours to go until the law was supposed to go into effect, the judge has granted the preliminary injunction blocking the bill, and the ruling makes it pretty clear that this bill is not going to survive. Of course, Florida will likely appeal the ruling, and it'll be up to the Appeals Court to go into more depth. During the hearing, the judge, Robert Hinkle, more or less admitted this would be the case, and said that his ruling wouldn't go that deep, because what the Appeals Court says will be more important in the long run. Even so, the ruling is worth exploring, as it smashes the law to bits in a variety of ways.

The State of Florida has adopted legislation that imposes sweeping requirements on some but not all social-media providers. The legislation applies only to large providers, not otherwise-identical but smaller providers, and explicitly exempts providers under common ownership with any large Florida theme park. The legislation compels providers to host speech that violates their standards—speech they otherwise would not host—and forbids providers from speaking as they otherwise would. The Governor’s signing statement and numerous remarks of legislators show rather clearly that the legislation is viewpoint-based. And parts contravene a federal statute. This order preliminarily enjoins enforcement of the parts of the legislation that are preempted or violate the First Amendment.

So, let's start with ye olde 1st Amendment. As we predicted, it's pretty clear that this law violates it. The judge agrees. For all the talk of how the law supposedly "protects" the 1st Amendment, the judge recognized it absolutely does the opposite. I've tried to highlight the key bits if you want to skim:

First, the State has asserted it is on the side of the First Amendment; the plaintiffs are not. It is perhaps a nice sound bite. But the assertion is wholly at odds with accepted constitutional principles. The First Amendment says “Congress” shall make no law abridging the freedom of speech or of the press. The Fourteenth Amendment extended this prohibition to state and local governments. The First Amendment does not restrict the rights of private entities not performing traditional, exclusive public functions. See, e.g., Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1930 (2019). So whatever else may be said of the providers’ actions, they do not violate the First Amendment.

Second, the First Amendment applies to speech over the internet, just as it applies to more traditional forms of communication. See, e.g., Reno v. ACLU, 521 U.S. 844, 870 (1997) (stating that prior cases, including those allowing greater regulation of broadcast media, “provide no basis for qualifying the level of First Amendment scrutiny that should be applied” to the internet).

Third, state authority to regulate speech has not increased even if, as Florida argued nearly 50 years ago and is again arguing today, one or a few powerful entities have gained a monopoly in the marketplace of ideas, reducing the means available to candidates or other individuals to communicate on matters of public interest. In Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), the Court rejected just such an argument, striking down a Florida statute requiring a newspaper to print a candidate’s reply to the newspaper’s unfavorable assertions. A similar argument about undue concentration of power was commonplace as the social-media restrictions now at issue advanced through the Florida Legislature. But here, as in Tornillo, the argument is wrong on the law; the concentration of market power among large social-media providers does not change the governing First Amendment principles. And the argument is also wrong on the facts. Whatever might be said of the largest providers’ monopolistic conduct, the internet provides a greater opportunity for individuals to publish their views—and for candidates to communicate directly with voters—than existed before the internet arrived. To its credit, the State does not assert that the dominance of large providers renders the First Amendment inapplicable.

The court then explores various precedential cases regarding the ability of the government to compel a private company to host speech and finds that the arguments of Florida are lacking. Since there are speech issues at stake, the law must be subject to strict scrutiny -- and as such it fails the 1st Amendment test. Indeed, public statements made by Florida's governor Ron DeSantis, grandstanding about this bill, are part of what helped to sink it (it would have been sunk anyway, but it's amusing to see his public statements used by the judge here):

The plaintiffs assert, too, with substantial factual support, that the actual motivation for this legislation was hostility to the social media platforms’ perceived liberal viewpoint. Thus, for example, the Governor’s signing statement quoted the bill’s sponsor in the House of Representatives: “Day in and day out, our freedom of speech as conservatives is under attack by the ‘big tech’ oligarchs in Silicon Valley. But in Florida, we said this egregious example of biased silencing will not be tolerated.” Similarly, in another passage quoted by the Governor, the Lieutenant Governor said, “What we’ve been seeing across the U.S. is an effort to silence, intimidate, and wipe out dissenting voices by the leftist media and big corporations. . . . Thankfully in Florida we have a Governor that fights against big tech oligarchs that contrive, manipulate, and censor if you voice views that run contrary to their radical leftist narrative.” This viewpoint-based motivation, without more, subjects the legislation to strict scrutiny, root and branch. See, e.g., Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 829 (1995) (“The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.”) (citing Perry Ed. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46 (1983)).

Moreover, these statements are consistent with the statutory definition of “social media platform,” which extends only to, and thus makes the legislation applicable only to, large entities—those with $100 million in revenues or 100 million monthly participants. As the Supreme Court has recognized, discrimination between speakers is often a tell for content discrimination. See, e.g., Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 340 (2010) (“Speech restrictions based on the identity of the speaker are all too often simply a means to control content.”). That is the case here. The state has suggested no other basis for imposing these restrictions only on the largest providers. And even without evidence of an improper motive, the application of these requirements to only a small subset of social-media entities would be sufficient, standing alone, to subject these statutes to strict scrutiny. See, e.g., Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U.S. 575, 591 (1983); Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 229 (1987).

And, yeah, the Disney carveout is seen as a tell as well:

Finally, the same is true of the exclusion for social-media providers under common ownership with a large Florida theme park. The State asserted in its brief that the provision could survive intermediate scrutiny, but the proper level of scrutiny is strict, and in any event, when asked at oral argument, the State could suggest no theory under which the exclusion could survive even intermediate scrutiny. The State says this means only that the exclusion fails, but that is at least questionable. Despite the obvious constitutional issue posed by the exclusion, the Legislature adopted it, apparently unwilling to subject favored Florida businesses to the statutes’ onerous regulatory burdens. It is a stretch to say the severability clause allows a court to impose these burdens on the statutorily excluded entities when the Legislature has not passed, and the Governor has not signed, a statute subjecting these entities to these requirements.

The judge then goes even further, by noting that even if you applied intermediate scrutiny (a lower standard) the bill still wouldn't live up to 1st Amendment requirements:

The provisions at issue here do not meet the narrow-tailoring requirement. Indeed, some of the disclosure provisions seem designed not to achieve any governmental interest but to impose the maximum available burden on the social media platforms

The judge also follows up on his comments during the hearing about how poorly drafted the law is to note the many problems in the law for being vague and open to wildly different interpretations, but notes that given the other reasons to block the law, he doesn't need to use the vagueness issue for the injunction.

In the end, the court recognizes that this bill was really all about punishing a few companies, and that's not how the law is supposed to work:

The legislation now at issue was an effort to rein in social-media providers deemed too large and too liberal. Balancing the exchange of ideas among private speakers is not a legitimate governmental interest. And even aside from the actual motivation for this legislation, it is plainly content-based and subject to strict scrutiny. It is also subject to strict scrutiny because it discriminates on its face among otherwise-identical speakers: between social-media providers that do or do not meet the legislation’s size requirements and are or are not under common ownership with a theme park. The legislation does not survive strict scrutiny.

There is also, extremely briefly, a recognition that the law is likely pre-empted by Section 230, basically highlighting that the law clearly violates 230's prohibitions on allowing platforms to moderate as they see fit:

Florida Statutes § 106.072 prohibits a social media platform from deplatforming a candidate for office and imposes substantial fines: $250,000 per day for a statewide office and $25,000 per day for any other office. But deplatforming a candidate restricts access to material the platform plainly considers objectionable within the meaning of 47 U.S.C. § 230(c)(2). If this is done in good faith—as can happen—the Florida provision imposing daily fines is preempted by § 230(e)(3). Good faith, for this purpose, is determined by federal law, not state law. Removing a candidate from a platform based on otherwiselegitimate, generally applicable standards—those applicable to individuals who are not candidates—easily meets the good-faith requirement. Indeed, even a mistaken application of standards may occur in good faith.

The federal statute also preempts the parts of Florida Statutes § 501.2041 that purport to impose liability for other decisions to remove or restrict access to content. See Fla. Stat. § 501.2041(6) (creating a private right of action for damages for violations of § 501.2041(2)(b) and (2)(d)1; id. § 501.2041(2)(b) (requiring a social media platform to apply censorship, deplatforming, and shadow banning standards in a consistent manner); id. § 501.2041(2)(d)1 (prohibiting a social media platform from deplatforming a user or censoring or shadow banning a user’s content without notifying the user); § 501.2041(2) (making any violation of that subsection an unfair or deceptive act or practice within the meaning of § 501.204—and thus providing a private right of action for damages under § 501.211).

Claims based on alleged inconsistency of a platform’s removal of some posts but not others are preempted.

That last line needs to be repeated over and over again for every state considering these kinds of laws.

Anyway, Florida is almost certainly going to waste more taxpayer dollars and appeal this ruling, but it's really difficult to see how the law survives. It was a garbage unconstitutional bill from the very beginning -- a point that many, many people made clear to both Governor DeSantis and the legislators who pushed this bill. But, of course, the goal was never to get this bill into actual law. It was all a big theater production -- to let them pretend to be culture warriors against "the libs" who they claim run social media platforms. It's just unfortunate that they get to throw away taxpayer money on their theatrical grandstanding.

* By the way, if you'd like to see a fun moment in the Florida legislature during the debate over the bill, check out this fairly incredible video of the discussion between Rep. Blaise Ingoglia -- who inserted the Disney carveout -- and Rep. Anna Eskamani who wants to get him on record explaining why. Ingoglia flat out admits that it's to protect Disney, though his argument is so hilariously dumb it's hard to believe it's real. He argues that they need to protect Disney+ reviews (Disney+ doesn't currently have reviews) and that it shouldn't apply to other sites, because Disney creates its own content. This ignores, of course, that the entire bill is about the moderation of 3rd party content (such as, uh, reviews, which are not created by Disney). It's almost as if he doesn't understand what all of this means, and is just making sure to do a favor to Disney, just because.

Filed Under: 1st amendment, content moderation, florida, injunction, section 230, theme parks
Companies: ccia, facebook, google, netchoice, twitter

Florida Steps Up To Defend Its Unconstitutional Social Media Law And It's Every Bit As Terrible As You'd Imagine

Free Speech

from the discredited-nonsense-cited dept

Mon, Jun 28th 2021 5:39am — Tim Cushing

About a month ago, the governor of Florida signed a showboating bill into law -- one that made it illegal to deplatform people running for office. Well, mostly. It exempted "theme park-associated" websites from the bill to appease the state's Disney overlords, but subjected every other site accessible in Florida to First Amendment violations in the form of compelled speech.

The absurdly unconstitutional bill was immediately challenged. NetChoice and CCIA beat everyone else to the courthouse, suing the state to block the law from being enforced. The plaintiffs pointed out the obvious flaws in the bill, as well as its hypocritical exemption of Disney sites from enforcement. It also pointed out this new law was nothing more than performance art that used both the First Amendment and Section 230 as expendable foot soldiers in Governor Ron DeSantis' war on imagined anti-conservative bias. The following is from NetChoice/CCIA's request for an injunction:

Rather than preventing what it calls “censorship,” the Act does the exact opposite: it empowers government officials in Florida to police the protected editorial judgment of online businesses that the State disfavors and whose perceived political viewpoints it wishes to punish. This is evident from Governor Ron DeSantis’ own press release that touts the Act as a means to “tak[e] back the virtual public square” from “the leftist media and big corporations,” who supposedly “discriminate in favor of the dominant Silicon Valley ideology.” The Governor’s press release also leaves no doubt about the Legislature’s unconstitutional viewpoint discrimination: quoting a state legislator, it proclaims that “our freedom of speech as conservatives is under attack by the ‘big tech’ oligarchs in Silicon Valley. But in Florida, [this] … will not be tolerated.”

The state has filed its response [PDF] to CCIA/NetChoice's challenge of the law's constitutionality. And it's just as dumb and wrongheaded as the law that made the state's courtroom presence necessary.

It starts out awful and only gets worse from there.

After years of unprecedented growth by social media platforms, Florida enacted a first-of-its-kind consumer protection law, Senate Bill 7072 (the “Act”), which takes aim at unfair and deceptive business practices by these platforms. The public record is replete with instances of their arbitrary and bad faith content moderation, only some of which are documented in the appendix to this brief. Moreover, the social media behemoths’ power to silence both on their platforms and throughout society has given rise to a troubling trend where a handful of corporations control a critical chokepoint for the expression of ideas. Such unprecedented power of censorship is especially concerning today, when most individuals use social media to obtain their news and government officials harness such mediums to reach the public. The Act seeks to rein in abuse of this power and ensure the widespread dissemination of information from a multiplicity of sources—a governmental objective of the highest order that promotes values central to the First Amendment.

So, it's a "consumer protection law" that only protects people running for office from "tech giants" and only if those "tech giants" aren't Disney or Universal or anyone else who might own a theme park in Florida. That sets the stage for the immense amount of stupidity readers (and the court) will be subjected to.

The immense amount of stupidity arrives in the very next sentence.

In seeking the extraordinary remedy of a pre-enforcement preliminary injunction, Plaintiffs ask the Court to grant them a First Amendment right to disable Florida from even starting the work of preserving the First Amendment rights of its citizens through this law.

Forcing websites to carry users' content is the exact opposite of "preserving First Amendment rights." Sites refusing to carry certain users' content is exactly the First Amendment. When a private company says take your content elsewhere, no one's First Amendment rights are violated.

Dumb, meet dumber.

The law merely prevents online platforms from using their vast powers to distort and suppress the messages of those speakers, leaving platforms free to speak with their own voices and largely free to adopt terms of service as they wish, requiring only that they enforce those terms consistently.

It takes an amazing amount of cognitive dissonance to say that forcing platforms to carry content leaves them "free to speak with their own voices." If a platform says "this content sucks and we won't be its conduit" and the government says "you must carry this content you feel sucks," the platform is forced to speak in the government's voice, rather than its own.

And as for "enforce terms consistently," there's a Pandora's box of subjective interpretation no one should willingly want to open. Case in point, Governor DeSantis' best buddy -- former president Donald Trump -- routinely violated the Twitter Rules but Twitter left his tweets up because he was the nominal leader of the free world and his tweets were considered newsworthy and of public interest. Had Twitter enforced its terms of use consistently, Trump would have been perma-banned long before he actually was.

Dumber and dumber and dumber:

Indeed, given the massive power that social media companies wield over the speech of their users, Florida’s efforts to prevent them from suppressing the speech of Florida’s citizens is little different from traditional common carrier regulation long thought to be constitutionally permissible.

Oh, this bullshit argument again. Trying to equate Facebook with AT&T is a non-starter. Common carriers do not prevent users from saying whatever they want. But neither do they provide platforms for speech that can reach any other user who uses the same service. Common carriers do not moderate content because they are not in the user-generated content business. They are the streets, to use an overused analogy. They are not the billboards alongside the road.

Just brain embolism-triggering levels of stupidity.

Nor is the Act preempted by Section 230 of the Communications Decency Act; Plaintiffs grossly overread that provision as establishing a law-free zone over the entire Internet, even where the regulation in question would promote rather than restrict free expression.

What the fuck is this word salad. Section 230 simply allows companies to make moderation decisions without worrying about being sued for content created by users, whether the content stays up or is taken down. The immunity was added to the Communications Decency Act to encourage active moderation of user-generated content. And, once again, the "regulation in question" does nothing to "promote free expression." What it actually does is allow the Florida government to determine what content platforms must carry.

That's just the first two pages of the 61-page response. But it's enough to show how badly the state is misunderstanding both the First Amendment and Section 230. And the rest of the response shows how deliberately the state is misunderstanding both of these issues.

Here's just one example of the disingenuousness of the state's arguments, pulled from First Amendment lawyer Ari Cohn's two detailed Twitter threads about the state's response. Here's the state's statement in its response:

To be sure, some courts have read Section 230(c)(1) to confer immunity whenever an interactive computer service exercises any of a publisher's "traditional editorial functions -- such as deciding whether to publish, withdraw, postpone or alter content."

Here's Cohn's acidic response to the state's attempt to portray the issue as unsettled:

To be sure, saying "some courts" is a clever way to try to minimize "damn near all of them." But that's not going to fool the court. At the end of the day, 230(c)(1) applies to the editorial discretion to post or remove content.

And if you can't find enough to work with in Cohn's twin threads (one for the First Amendment and one for Section 230), click on over to Eric Goldman's website where he breaks down thirty-one bogus assertions by Florida's government and provides counterpoints and counterarguments for every single one of them.

This is bad legislating compounded by bad lawyering. But, to be fair to the lawyers, they're being paid to advance the state's agenda, even when the state is so clearly in the wrong that only those dying of Kool Aid-enabled cyanide poisoning think these arguments have merit. Compounding the wrongness of the law is the state legislators' decision to create a carve out for companies they wish to appease, which clearly indicates this isn't about equal protection for political hopefuls but rather a way for DeSantis and his buddies to punish tech companies for their perceived bias.

Filed Under: 1st amendment, content moderation, florida, social media
Companies: ccia, netchoice

First Legal Challenge To Florida's Unconstitutional Social Media Moderation Law Has Been Filed

Free Speech

from the and-we're-off dept

Thu, May 27th 2021 12:12pm — Mike Masnick

On Monday we noted that Florida ~~Man~~ Governor Ron DeSantis had signed into law the new blatantly unconstitutional social media content moderation bill, complete with its extra corrupt Mickey Mouse exemption for (Disney) companies who own (Disney) theme parks.

Of course, it's one thing to just note that the bill is unconstitutional and another thing altogether to go through the annoyingly stupid process of proving that the bill is unconstitutional. Now, NetChoice and CCIA have stepped up to the plate and filed the first legal challenge to the bill (as first noted by USA Today who failed to link to the complaint).

The 70 page complaint is pretty impressive to read. The (somewhat long in its own right) Overview highlights the myriad problems in the bill. Here are just the first few paragraphs of the overview, to give you a sense of where the complaint is going.

The Act, a first-of-its-kind statute, was enacted on May 2, 2021 and signed into law on May 24, 2021 to restrict the First Amendment rights of a targeted selection of online businesses by having the State of Florida dictate how those businesses must exercise their editorial judgment over the content hosted on their privately owned websites. The Act discriminates against and infringes the First Amendment rights of these targeted companies, which include Plaintiffs’ members, by compelling them to host—and punishing them for taking virtually any action to remove or make less prominent—even highly objectionable or illegal content, no matter how much that content may conflict with their terms or policies.

These unprecedented restrictions are a blatant attack on a wide range of content-moderation choices that these private companies have to make on a daily basis to protect their services, users, advertisers, and the public at large from a variety of harmful, offensive, or unlawful material: pornography, terrorist incitement, false propaganda created and spread by hostile foreign governments, calls for genocide or race-based violence, disinformation regarding Covid-19 vaccines, fraudulent schemes, egregious violations of personal privacy, counterfeit goods and other violations of intellectual property rights, bullying and harassment, conspiracy theories denying the Holocaust or 9/11, and dangerous computer viruses. Meanwhile, the Act prohibits only these disfavored companies from deciding how to arrange or prioritize content—core editorial functions protected by the First Amendment—based on its relevance and interest to their users. And the Act goes so far as to bar those companies from adding their own commentary to certain content that they host on their privately owned services—even labeling such commentary as “censorship” and subjecting the services to liability simply for “post[ing] an addendum to any content or material posted by a user.”

Under the Act, these highly burdensome restrictions apply only to a select group of online businesses, leaving countless other entities that offer similar services wholly untouched by Florida law—including any otherwise-covered online service that happens to be owned by The Walt Disney Company (“Disney”) or other large entities that operate a “theme park.” This undisguised singling out of disfavored companies reflects the Act’s true purpose, which its sponsors freely admitted: to target and punish popular online services for their perceived views and for certain content-moderation decisions that state officials opposed—in other words, to retaliate against these companies for exercising their First Amendment rights of “editorial discretion over speech and speakers on their property.” Manhattan Community Access Corp. v. Halleck, 139 S. Ct. 1921, 1931 (2019).

Rather than preventing what it calls “censorship,” the Act does the exact opposite: it empowers government officials in Florida to police the protected editorial judgment of online businesses that the State disfavors and whose perceived political viewpoints it wishes to punish. This is evident from Governor Ron DeSantis’ own press release that touts the Act as a means to “tak[e] back the virtual public square” from “the leftist media and big corporations,” who supposedly “discriminate in favor of the dominant Silicon Valley ideology.”2 The Governor’s press release also leaves no doubt about the Legislature’s unconstitutional viewpoint discrimination: quoting a state legislator, it proclaims that “our freedom of speech as conservatives is under attack by the ‘big tech’ oligarchs in Silicon Valley. But in Florida, [this] … will not be tolerated.”

Although the Act uses scare terms such as “censoring,” “shadow banning,” and “deplatforming” to describe the content choices of the targeted companies, it is in fact the Act that censors and infringes on the companies’ rights to free speech and expression; the Act that compels them to host speech and speakers they disagree with; and the Act that engages in unconstitutional speaker-based, content-based, and viewpoint-based preferences. The legislative record leaves no doubt that the State of Florida lacks any legitimate interest—much less a compelling one—in its profound infringement of the targeted companies’ fundamental constitutional rights. To the contrary, the Act was animated by a patently unconstitutional and political motive to target and retaliate against certain companies based on the State’s disapproval of how the companies decide what content to display and make available through their services.

The Act is a frontal assault on the First Amendment and an extraordinary intervention by the government in the free marketplace of ideas that would be unthinkable for traditional media, book sellers, lending libraries, or newsstands. Could Florida require that the Miami Herald publish, or move to the front page, an op-ed or letter to the editor that the State favored, or demand that the Herald publish guest editorials in a state-sanctioned sequence? The answer is obviously no—as the Supreme Court unanimously held five decades ago in Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974). Yet the State now seeks to repeat that history—and to go even further by, for example, compelling the targeted companies to alter and disclose their editorial standards and to provide “detailed” information about the algorithms they use to curate content.

There's more, but that gives you the basics right there. My guess is that Florida will challenge the standing of the two groups bringing the complaint, saying that they are not directly harmed by the bill, even if their members are. So the first fight is likely to be over the question of whether or not these trade groups are adequate stand-ins for their members. Hopefully the court recognizes that, but standing questions (as boring as they are) often become a big deal in cases like this one.

The full complaint digs deep to highlight the many, many, many unconstitutional issues with the bill, including some I had missed on my earlier readings. For example, I didn't realize that the bill creates a new "Antitrust Violator Vendor List" but then makes it so it only can apply to social media companies (that don't own a theme park).

Section 3 is another example of the Act’s irrational targeting of a select, disfavored group of online businesses. Although federal antitrust laws—and Florida’s counterpart statutes—apply across different industries, Section 3 irrationally singles out only the defined “social media platforms” for disfavored treatment because of their role in hosting and moderating online content. Id. Section 3 establishes an “Antitrust Violator Vendor List” of companies and individuals subject to an absolute contracting bar with the State of Florida. Id. (adding § 287.137(3)(b)). These persons and affiliates are also prohibited from receiving “economic incentives” such as “state grants, cash grants, tax exemptions, tax refunds, tax credits, state funds, and other state incentives” under Florida law...

The Antitrust Violator Vendor List may include those merely “accused of” violations by the Florida “Attorney General,” “a state attorney,” or federal authorities (subject to a cumbersome and inadequate process for contesting the Attorney General’s decision before a state administrative law judge). The Act empowers the Florida Attorney General to place an accused company “temporarily” on the Antitrust Violator Vendor List upon a finding of mere “probable cause that a person has likely violated the underlying antitrust laws.” Id. (adding § 287.137(3)(d)(1)). The absolute state contracting bar extends to an ill-defined group of officers, directors, shareholders, and even employees involved in “management” of a company placed on the List, as well as a broad group of “affiliates” of companies that are permanently placed on the List.

Given the long list of cases that have established that allowing government officials to punish companies based on their speech is a 1st Amendment violation, this clause alone seems highly suspect. As the complaint later notes:

The Act is a smorgasbord of constitutional violations.

In the end, the main claims are saying that the bill violates both the 1st and 5th Amendment (and by association the 14th Amendment, which is what establishes that state governments are as bound to the Constitution's limitations as the federal government is). The 5th Amendment claims have to do with due process:

The Act violates due process because it fails to provide fair warning of what conduct is being regulated. FCC v. Fox Television Stations, Inc., 567 U.S. 239 (2012). A law is unconstitutionally vague when people “of common intelligence must necessarily guess at its meaning,” Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926), or where the law lacks definite and explicit standards thereby encouraging “arbitrary and discriminatory” application, Kolender v. Lawson, 461 U.S. 352 (1983).

There's also an expected Commerce Clause claim, basically saying that this is an issue that only the federal government can regulate, since it's regarding interstate commerce. And, finally, a claim that this pre-empted under both the Supremacy Clause and Section 230 itself, which has always been clear that it pre-empts any state attempt at regulating content moderation.

It's a good, strong complaint, and if these organizations can get over the standing hurdle, it seems to have a strong chance of success. And that's because of just how blatant the unconstitutional aspects of the bill truly are. Of course, DeSantis and others in the Florida government were warned of all this before, and they now need to throw a ton of taxpayer money at defending their own unconstitutional culture war. And, somewhat ridiculously, many of DeSantis' biggest fans will simply love the fact that he's wasting their money this way.

Filed Under: 1st amendment, 5th amendment, content moderation, due process, florida, ron desantis, section 230, standing
Companies: ccia, netchoice

Must Read: CCIA Sets US IP Czar Straight On Intellectual Property

Say That Again

from the wow dept

Fri, Mar 26th 2010 10:55am — Mike Masnick

A few days ago, I posted the letter I submitted to the White House IP Czar, Victoria Espinel, concerning her request for comments on the strategic plan for IP enforcement. It was a bit troubling that the questions asked in the RFC focused solely on increased enforcement and the amount of harm done by infringement -- as if it never even occurred to folks that increased enforcement might not be best for culture or the economy, and that there may also be mitigating benefits to infringement. I tried to make that clear in my filing, and it was great to see folks like Public Knowledge and the EFF submit comments as well -- but the really wonderful filing came from the NetCoalition and CCIA, which we discuss below. First, though, it's worth noting that the entertainment industry also made its demands...

The RIAA, MPAA and the Screen Actors Guild teamed up to submit their own filing, and as the LA Times noted "it's a doozy." Consider it a wishlist of protectionist, anti-consumer, anti-innovation policies, basically demanding that the White House prop up their own businesses, because of their unwillingness to adapt:

Among other things, the "creative community organizations" urged that:

The federal government encourage ISPs to use, and companies to develop, monitoring, filtering, blocking, scanning and throttling technologies to combat the flow of unauthorized material online;
Copyright holders be able to combat infringement by making a database of their works available to service providers, rather than submitting individual takedown notices. And once a work is taken down, service providers should be expected to employ "reasonable efforts" to prohibit users from uploading or even linking to them again;
Copyright owners be able to block unauthorized streams of live broadcasts without going through the formal notice-and-takedown process;
The federal government press search engines, social networks, hosting companies, domain name registrars and online advertising and payment networks to cooperate with copyright holders on efforts to combat piracy ("Encouraging these intermediaries to work with content owners on a voluntary basis to reduce infringements, and assuring these intermediaries that such cooperation will not be second-guessed, should be top priories that call for the personal intervention of senior government officials if necessary.");
A federal interagency task force work with industry to interdict prerelease bootlegs of Hollywood blockbusters and crack down on U.S. services that assist foreign piracy hotbeds;
States adopt "labeling laws" that "defined unauthorized online file sharing and streaming as a felony," giving state and local law enforcement jurisdiction to go after unauthorized copying online;
States use consumer protection laws to go after file-sharing sites that "expose consumers to intrusion, viruses and revelation of personal data."

You can read the entire entertainment industry filing below, but be ready to laugh at the highly questionable claims:

IPEC Filing: RIAA, MPAA, SAG However, if you want read something enjoyable you should check out the incredibly long, but ridiculously thorough and brilliant filing from the NetCoalition and CCIA. It's over 100 pages long, but every last page is worth reading. It says everything I wish I could have said in my letter, but does so in excruciating detail, with tremendous sources to back up each point. It kicks off by going through a detailed list of "fallacies" found in the request for comment itself, as well as in the typical complaints from the entertainment industry, including:

The objectivity fallacy: highlighting how the studies from the entertainment industry that pretend to be objective are anything but -- and tend to greatly, if not ridiculously exaggerate the problem.
The lost sale fallacy: of course, demolishing the industry's desire to pretend that each act of infringement represents a "lost" sale.
The causation fallacy: showing how the entertainment industry always places the blame for its problems on infringement, even if there's little evidence to support that any troubles in the industry were due to infringement. Instead, the filing points out that there are many, many reasons why some companies in the industry have run into trouble that have nothing to do with infringement.
The innovation fallacy: dismantling the industry's claim that infringement destroys jobs and discourages innovation, noting that it is historically evident that competition breeds greater innovation than gov't-backed monopolies, which can be shown to create economic rents and dead-weight loss.
The industry size fallacy: a favorite of the entertainment industry, which bundles in all sorts of unrelated industries that just sorta barely are touched by intellectual property (furniture!) to make the industry seem huge, in an effort to imply the importance of extra protectionism. But the filing points out how flawed the methodology is, pointing to the CCIA's own (awesome) use of the same methodology to show that exceptions to copyright contribute more to the economy than the "copyright industries." This part also points out that if the industry really is so big, then it should be well positioned to withstand any challenges...
The equivalence fallacy: picking apart how the entertainment industry likes to lump all forms of infringement into one "evil" bucket, without ever acknowledging that there are very, very different types of infringement, and understanding the differences is key in determining actual harm and any "enforcement" strategies.
The theft fallacy: once again reinforcing that infringement is a different beast than theft, and even the Supreme Court recognizes this... though the entertainment industry seems unwilling to admit it.
The silo fallacy: elegantly highlighting how the industry loves to talk up losses in CD sales, while totally ignoring how other parts of the business, such as live performances, continue to grow. It also highlights how, despite CD and DVD sales dropping, the number of albums and movies being made has vastly increased.
The relevance fallacy: laying out the argument that, even if you accept the industry's claims of losses, they're often submitting aggregate data that includes a variety of different factors and information that may be distorting the direct impact on specific areas, and setting policy based on such aggregate data could be quite damaging.

Seriously, the entire document is wonderful. It feels like it should be published as a book, and should become required reading for anyone ever writing about, litigating or setting intellectual property policy. You can read the whole thing below:

IPEC Comments: CCIA & NetCoalition Of course, after going through the fallacies, the filing gets to specific policy recommendations, wisely going back to the ProIP bill's language, highlighting how the purpose of the IP Czar is really supposed to be about true criminal infringement and counterfeiting, and arguing that any enforcement should be focused on those issues, rather than stepping in on civil disputes in what is, effectively, a business model problem. The filing also points out that diplomats enforcing US IP policy around the world are often uneducated in the balance of interests that IP law is supposed to hold, and frequently just push for greater laws and restrictions, without understanding the harm it causes. Along those lines, the CCIA takes the time to express its grave concerns over ACTA -- noting its broad scope and potential harm both in the US and abroad.

The conclusion of the document sums up everything nicely:

The spread of the global Internet has facilitated the unauthorized and at times infringing distribution of certain forms of intellectual property, especially copyright-protected content. The ease and minimal cost of copying makes meaningful enforcement costly and difficult. This widely recognized problem has stirred passionate debate about how the problem should be handled by copyright owners, the government, and third parties. This problem is amplified and complicated by the importance of both the content and Internet industries in the U.S. export market, as well as and demands for the U.S. to assert leadership at the international level. This creates a danger of rigid, oversimplified policies toward infringement that (a) make little sense in other intellectual property domains, and (b) undermine the perceived legitimacy of the global intellectual property system.

The solutions to the real and perceived problems the disruptive technology of the Internet has caused for certain entertainment and luxury goods companies cannot be solved by greater government intervention or by shifting more costs to Internet companies. Rather, the solution lies in the evolution of business models to adapt to the new realities of the marketplace.

Seriously. This is an absolute must read, start to finish.

Filed Under: enforcement, fallacies, intellectual property, ip czar
Companies: ccia, mpaa, netchoice, riaa, sag

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