The internet is, as most people know, everywhere, which makes it something of a problem for those who either want to regulate it or signal to their supporters that they would, if they could. But they can’t, obviously, because it’s the friggin’ internet, right? Well, the European Union did, to some extent, and Congress holds hearings about it all the time as both sides want to control it, albeit for different reasons.
Then along comes Texas, because it’s Texas, with a cockamamie bill that everyone who has any clue about law and cyberspace knows with absolute certainty can’t be upheld because it’s a flagrant affront to the First Amendment. How bad? This bad.
Sec. 143A.002. CENSORSHIP PROHIBITED.
(a) A social media platform may not censor a user, a user’s expression, or a user’s ability to receive the expression of another person based on:
(1) the viewpoint of the user or another person;
(2) the viewpoint represented in the user’s expression or another person’s expression; or
(3) a user’s geographic location in this state or any part of this state.
This is not a question of whether you wishcast the companies that own the websites you use and enjoy on the internet internet to be public property rather than private, but whether the Republic of Texas gets to make it so, for its own citizens at least because the internet works that way.
The enactment of this law was easy. After all, it would show Texans how fair and just their state government was, seeking to save them from the censorship of their beloved politicians and pundits by the hated Big Tech. And the reason it was so easy was because they know, with as much certainty as an elected official can muster, that this law would never, but never, be upheld in court.
Sure, there were likely some dopes who had no clue how constitutional law worked who believed this law was good, but there’s no requirement that elected officials be knowledgeable or be familiar with reality.
And when the district judge did what he would obviously be required to do, enjoin this law that was an obvious violation of the First Amendment, not to mention just plain dumb in that it demonstrated no grasp of how the internet worked or what businesses on the internet did (is Twitter an ISP because the law says so?), no one was surprised. Of course this happened. No judge in their right mind would do otherwise.
Yesterday, the obvious came crashing down. Following oral argument on the appeal of the district court’s injunction, the Fifth Circuit issued this order.
What this means is that the law that nobody could possibly believe would ever take effect is going to take effect. What this suggests is that, by staying the injunction after oral argument, the non-unanimous panel will uphold this law, and vacate the injunction.
This is nuts. But in the Fifth Circuit, at least for now, this is the law.
And this is the law as of the moment that order was released, even though it would be impossible for internet companies to comply with the procedural requirements of the law even if they wanted to. What this means for the internet in Texas is anybody’s guess at the moment. If compliance is impossible, do they “turn off” the internet to Texas?
But even more to the point, if two judges on the Fifth Circuit panel, for whatever reason, have decided that the Constitution be damned, it’s time to seize control of social media for the public good, what if another state in another circuit decides that it, too, will control the internet and demand the opposite of Texas? After all, if Texas can dictate what internet companies must carry, can’t California or Oregon?
Arguments have been proffered as to why social media websites like Facebook and Twitter should be deemed the public square as a consequence of their market dominance. After all, if that’s where all the people are, what use is yelling into an empty void? And just because the public square is now privately owned doesn’t mean it’s not where everybody wants to jump atop a soapbox and speak their mind, right?
The emotional appeal of these arguments notwithstanding, they remain legally nonsensical. Corporations have First Amendment rights. Corporations (yes, even corporations whose stock trades publicly) are private entities. They can’t be seized for the public good because you want them to be. And you really don’t want them to be anyway, as that would render them as much a tool of the other tribe when they push the buttons of state as yours.
So what happens now that the Fifth Circuit has stayed the injunction? The swiftest mechanism to return the metasphere to equilibrium would be to seek a stay of the stay of the injunction from the Supreme Court using its “shadow docket” for emergency relief. The alternative would be to seek review from the circuit en banc, but that wouldn’t be an emergency proceeding.
In the meantime, what’s to be done? Compliance with this nonsensical law is impossible. Noncompliance is, well, a violation. And the brighter lights in Texas’ state government are about to realize that their joke of a law, designed solely to virtue signal to their red-hatted groundlings who would love this law without the slightest clue of how bad, untenable and unconstitutional it was, has become a reality. This loony law was just upheld and will go into actual effect. What do you plan to do now, Texas? And what do internet companies plan to do about this, unless and until this law is once again enjoined?
Will good citizens of the Republic of Texas wake up this morning to find they can no longer access the interwebs? Not likely, but then an awful lot of legal lunacy has happened of late, making predictions based on law and reason an iffy proposition.
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I’m in Texas and I hate the Yankees.
If you don’t publish this I’m gonna run and tell Greg Abbott and you’ll be in so much trouble.
The nice folks in Boston don’t think much of the Yankees either.
Boston opinions don’t count, ‘cus they ain’t from Texas. I would have thought you would have known that, since you’ve had Houston BBQ.
I’ve had DFW BBQ too, and plan to again when I’m down there next December. Get the hint?
Send me the dates you’ll be here and I’ll arrange for you to meet my better half where y’all can poke fun at me while eating BBQ.
Sounds like a date. I’ll let you know details when they’re firmed up.
Drive down to Lockhart and get Smittys or Blacks. You won’t be disappointed, it’s worth the drive.
Way off topic,–but since it came up– I agree with LY. Add Chisholm Trail or Kreutz to the Lockhart list. The best BBQ in DFW isn’t Sonny Bryan’s or Spring Creek despite the hype. Hard 8 in The Colony isn’t too bad. It’s only about 4 hours from Dallas to Lockhart, and if you stop in Georgetown, I’ll buy y’all a pop with the foam on top.
I’ve mentioned both of those and Kreutz when we had our last BBQ War post on Fault Lines, where people actually had the audacity to suggest that pork was better than beef for Que. SMH…
I would post a link to that article, but I can never remember how to do that.
All y’all wrong.
Coopers in Llano is the best.
“Corporations have First Amendment rights.“. Don’t say that near an opponent of Citizens United.
So much shit in Texas, bound to step in some.
Yeah, but it’s cow shit and smells like money.
But to get kinda to the point of the article…
California environmental restrictions on cars force national manufacturers to follow their laws. California laws on guns effectively ban many common types of firearms from being sold in their state. Neither cars nor guns are made in California.
Texas, Florida , and California drive the textbook market.
So why can’t Texas drive the internet?
Oh, there’s that pesky First Amendment. Well, when the progressives remake it in their model we won’t need to worry about. Only approved speech/thought will be allowed.
I’m not at all familiar with this particular edict of Kirby-Smithdom, but from the description, compliance should be possible by either not censoring anything, or by blanketly censoring everything, so there is no “content-based” decision or activity at issue.
Do you think either of those options are tenable, even if they were sufficient for compliance?
The notion of not having viewpoint related censorship should be tenable. AtL’s comment section, when it existed, came close to such an approach. Also, viewpoint neutrality is a guideline that governmental entities are supposed to observe, so the premise of existing law is that viewpoint-neutral standards are possible. They just aren’t normally imposed on private actors.
Yeah, same thing as ATL except for 10 million per minute. Nothing to it.
The restrictions seem to be against view-point based censorship, well, and anti-Texas geographical censorship. So, these sites could continue to be able to engage in content-based censorship. So, for example, filtering/flagging obscenities, porn, adds, epithets, or incitement would still be acceptable, as long as they didn’t make exceptions for certain groups or perspectives over others.
From a technical perspective, this is actuallly no harder than what they are doing now, though there will be some transition cost as they retool their training data and any hand-coded rules they have implemented. (These aren’t algorithms in the technical sense, though often called such in non-technical media. The actual algorithms are much more fundamental and would generally be unaffected.)
From a ongoing process or personnel perspective, it actually makes their jobs easier, as the automated processing can be more comprehensive, and there will be fewer “exceptions” that will have to be manually adjudicated.
Let’s remember these companies resisted such viewpoint-based censorship for a very long time, at least in a heavy-handed way, at least until 2016. And when they started down that path, they had to hire appropriately and massively, as automated filters simply can’t be made smart enough without human intervention to make the finer grained decisions their new, generally unofficial, rules required.
Do you have a basis for your tech perspective? Others with known tech backgrounds have said otherwise. Bruce and I are both lawyers, and we don’t know squat about the tech involved.
Altering the filtering mechanism is the least of the tech companies’ concerns on this. I’ve only skimmed the changes to existing law, but it seems to only apply to users who are physically in Texas, and there is no technical way for social media platforms to reliably discern this information. The surest thing to use is an IP address, and that’s far from bulletproof as it is only loosely correlated to geographical location. That aspect alone makes compliance damned near impossible. Censor one post from JimBob Cooter in Dallas, and they are liable, even if he’s using a VPN that says he is in SanFran.
And keep in mind, it also applies to content coming *into* the state as well. Francois HippyFace posts from SanFran, and all of Texas has to be allowed to see it. They can block his odes to patchouli in Louisiana, but that shit has to go through in Texas. Them poor suckers have to be able to see every last word from Seaton.
Given the impossibility of figuring out where a user is, companies can’t implement algorithms that whitelist access to and from Texas users. Their only alternative to remain in compliance is to apply the new rules across the entire country, and Texas plainly can’t legislate such a thing. This thing is DOA, even without 1A considerations. No clue why the plaintiffs lawyers didn’t raise this obvious interstate issue, or if they did, how the hell a judge thought Texas could regulate social media companies business outside of the state.
There oughta be a law against a law against allowing them to prevent that.
Aside from the 1st Amendment issues, it seems like there’d be a jurisdiction issue with “(3) a user’s geographic location in this state or any part of this state.”.
It appears that’s to prevent Facebook, etc from simply blocking Texas IP addresses, but if Facebook decides to do completely stop doing business in Texas would it still be subject to their laws?
I have no idea whether it’s within the realm of possibility, but if I were FB or Twitter, I would cut Texas off tomorrow and announce that Texans can build their own internet with their own social media and have a good ol’ time with their law.
I am not a lawyer, but I’ve worked in high-tech for a few decades. What some of those platforms would like to do is to say, “Fine. We just won’t let anyone from Texas use our platform. Neener, neener!” Many folks in high-tech don’t like being told what to do, and will comply with court orders in the most obnoxious way possible.
But of course the “clever” legislators prevented that with their wording. “Curses, foiled again!” Perhaps they will drag out their T&C and let there be a battle, which would be interesting, since Twitter (for example) has California listed as their choice of governing law for said terms and conditions.
But as I said, I am NOT a lawyer, just an interested bystander.
Great. Now the freeDUMB crowd can’t imagine a scenario where using overtly unconstitutional legislation to ‘own the political opposition’ could possibly go wrong. This should end well.
Jake, some 12-year-old is using your name to write infantile crap like “freeDUMB.” I thought you should know.