I try to stay away from writing about American laws and policies; there are enough American journalists doing that, and a Canadian’s voice is probably unhelpful. But I carve out an exception for myself when the law is particularly heinous or when it might have an impact outside the country. Today’s legal decision, from Fifth Circuit Court of Appeals Judge Andy Oldham, unfortunately satisfies both criteria.
First, a little history: about a year ago, the Texas House of Representatives voted to pass H.B. 20, a law which would effectively prevent online platforms from moderating users’ posts except as legally required — for example, against CSAM — or for imminent threats of violence. It also required platforms to not geofence Texan users or stop operating in the state. In effect, it is a Texan law that would impact users at least across the U.S., if not the world. In May, after much legal back-and-forth, the Fifth Circuit decided that Texas H.B. 20 was enforceable — even though a similar but less authoritarian law in Florida was ruled mostly unconstitutional — but did not provide a legal rationale for why platforms should be compelled to act as though they are common carriers, even though they are not.
Today, after about four months of waiting, the Court dropped its ruling (PDF) with all the subtlety of Wile E. Coyote pushing an anvil off a cliff.
Mike Masnick, Techdirt:
It is difficult to state how completely disconnected from reality this ruling is, and how dangerously incoherent it is. It effectively says that companies no longer have a 1st Amendment right to their own editorial policies. Under this ruling, any state in the 5th Circuit could, in theory, mandate that news organizations must cover certain politicians or certain other content. It could, in theory, allow a state to mandate that any news organization must publish opinion pieces by politicians. It completely flies in the face of the 1st Amendment’s association rights and the right to editorial discretion.
There’s going to be plenty to say about this ruling, which will go down in the annals of history as a complete embarrassment to the judiciary, but let’s hit the lowest points.
It really is the most angrily incoherent First Amendment decision I think I’ve ever read.
This ruling treats internet platforms — not internet service providers, which it explicitly excludes, but individual websites — as though they are a common carrier, like a phone company. If you are worried about a 4chan-like future for every platform you like today, you are painfully optimistic. 4chan would be exempt from this law because it falls below the monthly user threshold, but a version of its scant rules (safe for work) would be difficult to enforce by Twitter or Facebook or Instagram for fear of lawsuits. A scorned user or the Texas Attorney General could make the case their post was removed or demoted from the website because of that user’s viewpoint. It sounds ridiculous because it is.
This seems like the kind of law that, barring action from the U.S. Supreme Court, will fundamentally change the way the internet works for the worse.
Update: More from Masnick on September 23:
Anyway, it’s possible this means that Wikipedia can no longer stop people from adding more and more content (true or not) to Judge Andy Oldham’s profile, because having users take it down would potentially violate the law (but don’t do that: vandalizing Wikipedia is always bad, even if you’re trying to make a point).
The entire law is based on the idea that all moderation takes place by the company itself, and not by users.
Masnick also sees potential issues with Reddit and the job board Indeed.