7 ms·

A single Texas ruling could change the web forever

28 points by fortran77 4y ago

IXxXI 4y ago
If ISP's become liable for content posted by end users. It sets the stage for large numbers of private citizens being banned by ISP's for publishing certain types of content.
ElfinTrousers 4y ago
Here is my rough estimation of the probabilities of various outcomes of this: 0.5: Ruling struck down on appeal in the near future 0.499999999: Ruling appealed and upheld, tech companies shrug and disable moderation, the money's still coming in so it's all good 0.000000001: Other
- Gormo 4y ago
  I can't imagine SCOTUS upholding this. Not only are there clear First Amendment implications, it seems like a clear-cut encroachment by a state government into Federal commerce-clause jurisdiction.
  - ElfinTrousers 4y ago
    Oh, I can think of about four reasons SCOTUS would: Thomas, Gorsuch, Kavanaugh, and Barrett. Which leaves it up to Alito, and that's too close (for me, at least) to call.
    - naikrovek 4y ago
      yeah, extremely conservative people don't see their talking points as being hateful, and instead see them as factual. (source: many, many former extreme conservative acquaintances and friends, also a lot of time in my youth spent in the armed services listening to the most vocally angry people.) they feel their opinions are being unfairly targeted because "snowflakes and princesses" (implying weak-minded people) view those talking points as hate speech, and hate speech is not covered by the first amendment of the US constitution. they view the "hate speech" label as a loophole around free speech guarantees, and they feel it is wielded solely by liberals, and solely to silence their perfectly valid conservative views. so, instead of understanding that reality might differ from their collective view of reality, two things which they view as being exactly equal, they instead attack what they view as the problem: unfair censorship. this ruling seems very likely to be based on this perspective, and if so, is intended to make the first amendment unenforceable in situations where moderation does not outright favor conservative viewpoints. conservatives of this extremity can't compete for mindshare based on their viewpoint, so they compete by changing the rules. this ruling goes against both the letter of the first amendment and the spirit of the first amendment.
    - Gormo 4y ago
      What's your reasoning for suspecting these particular justices would be inclined to abandon application of the commerce clause in a case of actual interstate commerce?
      - ElfinTrousers 4y ago
        What makes you think they wouldn't?
        BizarroLand 4y ago
        What makes you think they would?
        ElfinTrousers 4y ago
        What makes you think they wouldn't?
        BizarroLand 4y ago
        What makes you think they would?
      - mrguyorama 4y ago
        Because these are the same people who described unwanted children as the "stock of babies". Nothing required them to say anything of the sort when overthrowing Roe v. Wade. All they had to do was say "Come on, it was poorly justified back then and should be thrown out for just that reason." but they spent pages and pages trying to talk about there being a moral reason for denying women the right to abort something growing inside them. But they could not keep their personal biases out of the ruling. There's no reason to think any supreme court justice has ever kept personal bias out of their rulings. Each justice has a history of cases and outcomes they've overseen in their time, and usually they are chosen precisely because of that. For instance, are you aware many of the justices appointed by Trump were the justices who oversaw the stopping of counting votes in florida for the 2000 election? It doesn't matter whether their personal opinion comes from a bible verse or a supposed interpretation of the constitution. They are still obvious, previously known biases towards or away from certain opinions, and these justices are appointed by politicized bodies. These justices are part of politics no matter what they may personally believe.
  - jfengel 4y ago
    It is widely thought that SCOTUS decides based on ideology and politics, and only justifies it with the text of the Constitution after the fact. Although they like to present it as some kind of rigorous reasoning, there are always sufficient vaguenesses and internal contradictions to justify any interpretation they prefer. Supreme Court members (the formal title "Justice" seems laughable) have increasingly been chosen for their compliance with the ideology of the party in power. Since that coincides with the party who wrote this law, I think they'll have no trouble upholding it if they wish. I have no idea what grounds they'll use for that, but I don't believe it's relevant. Only the actual decision matters.
    - dev_by_day 4y ago
      > It is widely thought that SCOTUS decides based on ideology and politics Citation needed. Judges have differing judicial philosophies and those philosophies may run contrary to a political parties aims but it does not mean they are servants of political parties. It is likely that the people who think their decisions are purely politically biased are the ones whose politics are not aligned with whatever the court decided. Rarely do they dig into the justifications and expert analysis for a given decision. Both liberal and conservative leaning justices have ruled against things that the parties which helped appoint them wanted.
      - greenhearth 4y ago
        Get real. A bunch of those mofos are on a payroll.
        jfengel 4y ago
        I don't believe they're on a payroll. They don't need to be. They were carefully courted as true believers in their ideological cause. They believe in the votes they cast. And that's actually much more reliable than paying them. People who can be bought can be out-bid. True believers will do it for nothing except the right to make their ideology the law of the land.
  - olliej 4y ago
    - _-david-_ 4y ago
      You are clearly bias. Calling any of them a rapist shows that. None of the justices have any court cases even against them for rape. At least 2 were accused of rape, but that is far from being a rapist. If all that it takes is an accusation then fine. You raped me. That means you are a rapist now. Please make sure you are added to the sex offenders list.
      - mrguyorama 4y ago
        You're missing the concept of "credible accusations". The court of public opinion does not care about "beyond a reasonable doubt" because if we actually limited anything to that nobody would be punished for anything. If you want "convicted" to be the bar before the public treats someone poorly, you're going to have a bad time, because it's terribly difficult to actually convict someone of rape because there's almost never any actual evidence, by the very nature of the crime. Nevermind the fact that lots of people either cannot admit to themselves or don't remember or don't realize they were raped. Very few people who actually commit rape (whether they realize it or not) end up convicted. It's not a rigorous stat, because again, the reality of the situation is only truly known by the two involved, so it often comes down to who you trust. Consider why you trust supreme court justices to not have raped people.
        _-david-_ 4y ago
        >You're missing the concept of "credible accusations". I don't consider them to be credible so I am not missing anything. >The court of public opinion does not care about "beyond a reasonable doubt" because if we actually limited anything to that nobody would be punished for anything. Sure, but people don't need to go calling people rapists just because they got accused. >If you want "convicted" to be the bar before the public treats someone poorly, you're going to have a bad time, because it's terribly difficult to actually convict someone of rape because there's almost never any actual evidence, by the very nature of the crime I just want some level of evidence more than just having an accusation that something happened years ago. That just isn't enough for me to treat someone poorly. Maybe a couple accusations or weird behavior or the alleged suspect getting caught in lies about this issue or something. Eye witness testimony is very frequently inaccurate especially when the incident occurred decades before. And that is with the assumption they aren't making it up. An accusation especially against political people is just not trustworthy in my view to begin with. People lie for politics all the time. People slander/libel for politics all the time. Why should I trust an accusation without any corroborating evidence or additional accusations or anything of the sort? >Nevermind the fact that lots of people either cannot admit to themselves or don't remember or don't realize they were raped. That presumably wouldn't make a difference in this situation. If they won't admit it or don't remember then they won't be accusing justices of doing it. >Very few people who actually commit rape (whether they realize it or not) end up convicted. It's not a rigorous stat, because again, the reality of the situation is only truly known by the two involved, so it often comes down to who you trust I understand. I should have been more clear that I don't strictly need a guilty verdict. I want something more than a single accusation especially against political people. >Consider why you trust supreme court justices to not have raped people. I never said I don't think they raped anybody. They very well may have. I think people who are in positions of power probably on average have lower morals and are more likely to be a rapist. I just don't like going around calling people rapists without any real evidence other than just an accusation that came up years / decades after it allegedly occurred. I think we are getting to a point where people throw around allegations and various -ists and phobias too often. Every day somebody is called a racist or homophobe or is accused of being a traitor to the country. I think we need to cool it with decisiveness and stop with this type of language unless there is a reason to use in a specific case.
- allturtles 4y ago
  I don't see how "the money still comes in" if tech companies shrug and disable moderation. Most advertisers are not going to want their brands on an unmoderated platform where their ads can be shown next to ISIS propaganda, neo-nazi propaganda, or pornography.
  - ElfinTrousers 4y ago
    I sincerely wish that I agreed with you. Not trying to be funny when I say that.
    - jfengel 4y ago
      In addition to the advertisers, there can also be an outflow of users. Most users don't actually like unmoderated forums: they rapidly fill with the most unpleasant and obnoxious voices. Users fleeing will also reduce the rates that advertisers are willing to pay. Especially if "disable moderation" also means turning off spam filters -- and I'm certain that spammers will try to use this ruling to force that.
  - welshwelsh 4y ago
    They won't care if all platforms are unmoderated. What are they going to do, stop advertising?
    - lesuorac 4y ago
      Why would they stop advertising if one location where they advertised was undesirable? Brand Advertisements would just disappear from the internet and stick to the highly regulated TV slots but Mtn Dew isn't going to layoff its whole advertising team just because X Webpage has Pro-Nazi comments.
    - allturtles 4y ago
      They would presumably shift advertising dollars to channels that don't constitute 'social media' under this law: TV, ecommerce sites, search, news sites, etc.
    - 4y ago
- klyrs 4y ago
  > Ruling appealed and upheld, tech companies shrug and disable moderation, the money's still coming in so it's all good Another possibility here is that social media sites impacted by this may implement a Reverse Great Firewall of Texas (and Florida), and possibly terminate employees living in those states who won't relocate.
- Haegin 4y ago
  I feel like I have to be missing something here. If the law is upheld why wouldn't sites just not allow access to their content in Texas? Stick the same front banner up that alcohol or porn sites have where you have to confirm you're over a certain age but this time it's confirming you're not in Texas, and carry on as normal.
4oo4 4y ago
Really curious what someone with a legal background thinks of it, from reading this the judge actually misquoted and completely distorted the decisions he quoted to support this, probably on purpose. https://www.techdirt.com/2022/09/16/5th-circuit-rewrites-a-century-of-1st-amendment-law-to-argue-internet-companies-have-no-right-to-moderate/ https://www.techdirt.com/2022/09/16/5th-circuit-rewrites-a-c... Part of me would like to think that is enough to get it struck down given how sloppy it was. However it would also not surprise me at all if there was some feat of mental gymnastics that would allow it to be upheld either.
- torstenvl 4y ago
  Critical take: https://threadreaderapp.com/thread/1572223690863149058.html https://threadreaderapp.com/thread/1572223690863149058.html This is of low value, because (1) it is more about playing to prevailing Twitter threads (ooooh he dissed the founders as old white men!) rather than legal analysis; and (2) the legal analysis, such as it is, starts from the presumption that social media companies are press rather than another business ("The opinion reaches this conclusion by treating the owners of companies in the biz of speech as identical to the owners of other businesses."). I don't think that presumption is well-established. Critical take: https://www.lawfareblog.com/fifth-circuits-social-media-decision-dangerous-example-first-amendment-absolutism https://www.lawfareblog.com/fifth-circuits-social-media-deci... This one is much better. For example, it rightfully points out that the Fifth Circuit opinion does a poor job connecting its analysis of editorial discretion to First Amendment jurisprudence ("the court never explains why public acceptance of responsibility is necessary as a matter of constitutional law, for First Amendment protection"). In my gut, I still don't agree, but I may come around after digesting this more. This critical piece is of high quality. Supportive take (summarized): https://reason.com/volokh/2022/09/23/another-commentary-on-the-fifth-circuits-texas-social-media-law-decision/ https://reason.com/volokh/2022/09/23/another-commentary-on-t... I can't find the original source, but the pulled quotes seem insightful. "The opinion's critics argue that the First Amendment protects the act of exercising 'editorial discretion': the right of platforms to control what content they transmit. But, critics forget that the First Amendment protects only expressive acts—a point made clear in the two Supreme Court case on which Big Tech (and Judge Oldham's critics) base all their critique: Miami Herald v. Tornillo and Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston. In Miami Herald, the Supreme Court held that when newspaper editors decide to include a particular op-ed in their pages, they convey the editors' message that the article is insightful or otherwise valuable. Similarly, the St. Patrick Day's Parade organizers in Hurley, expressed a message, attributable to them, of general support for each group it approved to march, communicating with the various groups a discrete set of ideas and positions. In contrast, most platform acts of content moderation are not expressive under the Supreme Court tests. Most obviously, they are not expressive because most are never communicated and therefore cannot convey a message. For instance, shadow banning, by which a platform renders a user's posts invisible to all but that user, cannot convey a message because no one knows, except the platform, that it is happening."
haspoken 4y ago
https://archive.ph/n06fH https://archive.ph/n06fH
olliej 4y ago
kazinator 4y ago
I would rather be told that I can't remove postings from my BBS (due to content, rather than storage issues, say) than be told that I'm liable for the content. The threat of making ISP's liable for content is, by far, worse. "What, I can't delete stuff from the forum I run? Geez." "Wait, so that means I'm not liable for it? Phew, actually!" "Oh, and so that means I don't have to police the forum content to comply with laws? Fantastic news: less uncompensated work for me!"
- DoItToMe81 4y ago
  The ruling solely applies to social media with 50+ million monthly users. It doesn't affect you, or ISPs, but powerful media interests are trying to make you believe it does.
  - kazinator 4y ago
    If three users each refresh the page 18 million times, there is your 50 million a month. :)
DoItToMe81 4y ago
Sounds reasonable. You can't and shouldn't treat companies that have the power to dictate what hundreds of millions see as though they're just a normal hobbyist forum.
cetahfh14615 4y ago
I can't see this panning over well without the supreme court establishing some sort of discretionary middle ground. One camp says the platforms are like newspapers, the other says they are like email companies. Imo the platforms are neither. Content moderation is necessary, moderation of more extreme and malicious viewpoints is necessary, but in recent years a boundary has been crossed with regard to what constitutes "malicious" content (e.g. someone rationally questioning a supposedly widely held viewpoint and being silenced without explanation. The act of censoring someone for making a good faith argument solely because the censor disagrees is in itself malicious) The companies have shown a lack of discretion in this regard and the current application of the 1st is unsustainable long term

28 points by fortran77 4y ago

If ISP's become liable for content posted by end users. It sets the stage for large numbers of private citizens being banned by ISP's for publishing certain types of content.

ElfinTrousers 4y ago

Here is my rough estimation of the probabilities of various outcomes of this: 0.5: Ruling struck down on appeal in the near future 0.499999999: Ruling appealed and upheld, tech companies shrug and disable moderation, the money's still coming in so it's all good 0.000000001: Other

Gormo 4y ago
I can't imagine SCOTUS upholding this. Not only are there clear First Amendment implications, it seems like a clear-cut encroachment by a state government into Federal commerce-clause jurisdiction.
- ElfinTrousers 4y ago
  Oh, I can think of about four reasons SCOTUS would: Thomas, Gorsuch, Kavanaugh, and Barrett. Which leaves it up to Alito, and that's too close (for me, at least) to call.
  - naikrovek 4y ago
    yeah, extremely conservative people don't see their talking points as being hateful, and instead see them as factual. (source: many, many former extreme conservative acquaintances and friends, also a lot of time in my youth spent in the armed services listening to the most vocally angry people.) they feel their opinions are being unfairly targeted because "snowflakes and princesses" (implying weak-minded people) view those talking points as hate speech, and hate speech is not covered by the first amendment of the US constitution. they view the "hate speech" label as a loophole around free speech guarantees, and they feel it is wielded solely by liberals, and solely to silence their perfectly valid conservative views. so, instead of understanding that reality might differ from their collective view of reality, two things which they view as being exactly equal, they instead attack what they view as the problem: unfair censorship. this ruling seems very likely to be based on this perspective, and if so, is intended to make the first amendment unenforceable in situations where moderation does not outright favor conservative viewpoints. conservatives of this extremity can't compete for mindshare based on their viewpoint, so they compete by changing the rules. this ruling goes against both the letter of the first amendment and the spirit of the first amendment.
  - Gormo 4y ago
    What's your reasoning for suspecting these particular justices would be inclined to abandon application of the commerce clause in a case of actual interstate commerce?
    - ElfinTrousers 4y ago
      What makes you think they wouldn't?
      - BizarroLand 4y ago
        What makes you think they would?
        ElfinTrousers 4y ago
        What makes you think they wouldn't?
        BizarroLand 4y ago
        What makes you think they would?
    - mrguyorama 4y ago
      Because these are the same people who described unwanted children as the "stock of babies". Nothing required them to say anything of the sort when overthrowing Roe v. Wade. All they had to do was say "Come on, it was poorly justified back then and should be thrown out for just that reason." but they spent pages and pages trying to talk about there being a moral reason for denying women the right to abort something growing inside them. But they could not keep their personal biases out of the ruling. There's no reason to think any supreme court justice has ever kept personal bias out of their rulings. Each justice has a history of cases and outcomes they've overseen in their time, and usually they are chosen precisely because of that. For instance, are you aware many of the justices appointed by Trump were the justices who oversaw the stopping of counting votes in florida for the 2000 election? It doesn't matter whether their personal opinion comes from a bible verse or a supposed interpretation of the constitution. They are still obvious, previously known biases towards or away from certain opinions, and these justices are appointed by politicized bodies. These justices are part of politics no matter what they may personally believe.
- jfengel 4y ago
  It is widely thought that SCOTUS decides based on ideology and politics, and only justifies it with the text of the Constitution after the fact. Although they like to present it as some kind of rigorous reasoning, there are always sufficient vaguenesses and internal contradictions to justify any interpretation they prefer. Supreme Court members (the formal title "Justice" seems laughable) have increasingly been chosen for their compliance with the ideology of the party in power. Since that coincides with the party who wrote this law, I think they'll have no trouble upholding it if they wish. I have no idea what grounds they'll use for that, but I don't believe it's relevant. Only the actual decision matters.
  - dev_by_day 4y ago
    > It is widely thought that SCOTUS decides based on ideology and politics Citation needed. Judges have differing judicial philosophies and those philosophies may run contrary to a political parties aims but it does not mean they are servants of political parties. It is likely that the people who think their decisions are purely politically biased are the ones whose politics are not aligned with whatever the court decided. Rarely do they dig into the justifications and expert analysis for a given decision. Both liberal and conservative leaning justices have ruled against things that the parties which helped appoint them wanted.
    - greenhearth 4y ago
      Get real. A bunch of those mofos are on a payroll.
      - jfengel 4y ago
        I don't believe they're on a payroll. They don't need to be. They were carefully courted as true believers in their ideological cause. They believe in the votes they cast. And that's actually much more reliable than paying them. People who can be bought can be out-bid. True believers will do it for nothing except the right to make their ideology the law of the land.
- olliej 4y ago
  - _-david-_ 4y ago
    You are clearly bias. Calling any of them a rapist shows that. None of the justices have any court cases even against them for rape. At least 2 were accused of rape, but that is far from being a rapist. If all that it takes is an accusation then fine. You raped me. That means you are a rapist now. Please make sure you are added to the sex offenders list.
    - mrguyorama 4y ago
      You're missing the concept of "credible accusations". The court of public opinion does not care about "beyond a reasonable doubt" because if we actually limited anything to that nobody would be punished for anything. If you want "convicted" to be the bar before the public treats someone poorly, you're going to have a bad time, because it's terribly difficult to actually convict someone of rape because there's almost never any actual evidence, by the very nature of the crime. Nevermind the fact that lots of people either cannot admit to themselves or don't remember or don't realize they were raped. Very few people who actually commit rape (whether they realize it or not) end up convicted. It's not a rigorous stat, because again, the reality of the situation is only truly known by the two involved, so it often comes down to who you trust. Consider why you trust supreme court justices to not have raped people.
      - _-david-_ 4y ago
        >You're missing the concept of "credible accusations". I don't consider them to be credible so I am not missing anything. >The court of public opinion does not care about "beyond a reasonable doubt" because if we actually limited anything to that nobody would be punished for anything. Sure, but people don't need to go calling people rapists just because they got accused. >If you want "convicted" to be the bar before the public treats someone poorly, you're going to have a bad time, because it's terribly difficult to actually convict someone of rape because there's almost never any actual evidence, by the very nature of the crime I just want some level of evidence more than just having an accusation that something happened years ago. That just isn't enough for me to treat someone poorly. Maybe a couple accusations or weird behavior or the alleged suspect getting caught in lies about this issue or something. Eye witness testimony is very frequently inaccurate especially when the incident occurred decades before. And that is with the assumption they aren't making it up. An accusation especially against political people is just not trustworthy in my view to begin with. People lie for politics all the time. People slander/libel for politics all the time. Why should I trust an accusation without any corroborating evidence or additional accusations or anything of the sort? >Nevermind the fact that lots of people either cannot admit to themselves or don't remember or don't realize they were raped. That presumably wouldn't make a difference in this situation. If they won't admit it or don't remember then they won't be accusing justices of doing it. >Very few people who actually commit rape (whether they realize it or not) end up convicted. It's not a rigorous stat, because again, the reality of the situation is only truly known by the two involved, so it often comes down to who you trust I understand. I should have been more clear that I don't strictly need a guilty verdict. I want something more than a single accusation especially against political people. >Consider why you trust supreme court justices to not have raped people. I never said I don't think they raped anybody. They very well may have. I think people who are in positions of power probably on average have lower morals and are more likely to be a rapist. I just don't like going around calling people rapists without any real evidence other than just an accusation that came up years / decades after it allegedly occurred. I think we are getting to a point where people throw around allegations and various -ists and phobias too often. Every day somebody is called a racist or homophobe or is accused of being a traitor to the country. I think we need to cool it with decisiveness and stop with this type of language unless there is a reason to use in a specific case.
allturtles 4y ago
I don't see how "the money still comes in" if tech companies shrug and disable moderation. Most advertisers are not going to want their brands on an unmoderated platform where their ads can be shown next to ISIS propaganda, neo-nazi propaganda, or pornography.
- ElfinTrousers 4y ago
  I sincerely wish that I agreed with you. Not trying to be funny when I say that.
  - jfengel 4y ago
    In addition to the advertisers, there can also be an outflow of users. Most users don't actually like unmoderated forums: they rapidly fill with the most unpleasant and obnoxious voices. Users fleeing will also reduce the rates that advertisers are willing to pay. Especially if "disable moderation" also means turning off spam filters -- and I'm certain that spammers will try to use this ruling to force that.
- welshwelsh 4y ago
  They won't care if all platforms are unmoderated. What are they going to do, stop advertising?
  - lesuorac 4y ago
    Why would they stop advertising if one location where they advertised was undesirable? Brand Advertisements would just disappear from the internet and stick to the highly regulated TV slots but Mtn Dew isn't going to layoff its whole advertising team just because X Webpage has Pro-Nazi comments.
  - allturtles 4y ago
    They would presumably shift advertising dollars to channels that don't constitute 'social media' under this law: TV, ecommerce sites, search, news sites, etc.
  - 4y ago
klyrs 4y ago
> Ruling appealed and upheld, tech companies shrug and disable moderation, the money's still coming in so it's all good Another possibility here is that social media sites impacted by this may implement a Reverse Great Firewall of Texas (and Florida), and possibly terminate employees living in those states who won't relocate.
Haegin 4y ago
I feel like I have to be missing something here. If the law is upheld why wouldn't sites just not allow access to their content in Texas? Stick the same front banner up that alcohol or porn sites have where you have to confirm you're over a certain age but this time it's confirming you're not in Texas, and carry on as normal.

4oo4 4y ago

Really curious what someone with a legal background thinks of it, from reading this the judge actually misquoted and completely distorted the decisions he quoted to support this, probably on purpose. https://www.techdirt.com/2022/09/16/5th-circuit-rewrites-a-century-of-1st-amendment-law-to-argue-internet-companies-have-no-right-to-moderate/ https://www.techdirt.com/2022/09/16/5th-circuit-rewrites-a-c... Part of me would like to think that is enough to get it struck down given how sloppy it was. However it would also not surprise me at all if there was some feat of mental gymnastics that would allow it to be upheld either.

torstenvl 4y ago
Critical take: https://threadreaderapp.com/thread/1572223690863149058.html https://threadreaderapp.com/thread/1572223690863149058.html This is of low value, because (1) it is more about playing to prevailing Twitter threads (ooooh he dissed the founders as old white men!) rather than legal analysis; and (2) the legal analysis, such as it is, starts from the presumption that social media companies are press rather than another business ("The opinion reaches this conclusion by treating the owners of companies in the biz of speech as identical to the owners of other businesses."). I don't think that presumption is well-established. Critical take: https://www.lawfareblog.com/fifth-circuits-social-media-decision-dangerous-example-first-amendment-absolutism https://www.lawfareblog.com/fifth-circuits-social-media-deci... This one is much better. For example, it rightfully points out that the Fifth Circuit opinion does a poor job connecting its analysis of editorial discretion to First Amendment jurisprudence ("the court never explains why public acceptance of responsibility is necessary as a matter of constitutional law, for First Amendment protection"). In my gut, I still don't agree, but I may come around after digesting this more. This critical piece is of high quality. Supportive take (summarized): https://reason.com/volokh/2022/09/23/another-commentary-on-the-fifth-circuits-texas-social-media-law-decision/ https://reason.com/volokh/2022/09/23/another-commentary-on-t... I can't find the original source, but the pulled quotes seem insightful. "The opinion's critics argue that the First Amendment protects the act of exercising 'editorial discretion': the right of platforms to control what content they transmit. But, critics forget that the First Amendment protects only expressive acts—a point made clear in the two Supreme Court case on which Big Tech (and Judge Oldham's critics) base all their critique: Miami Herald v. Tornillo and Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston. In Miami Herald, the Supreme Court held that when newspaper editors decide to include a particular op-ed in their pages, they convey the editors' message that the article is insightful or otherwise valuable. Similarly, the St. Patrick Day's Parade organizers in Hurley, expressed a message, attributable to them, of general support for each group it approved to march, communicating with the various groups a discrete set of ideas and positions. In contrast, most platform acts of content moderation are not expressive under the Supreme Court tests. Most obviously, they are not expressive because most are never communicated and therefore cannot convey a message. For instance, shadow banning, by which a platform renders a user's posts invisible to all but that user, cannot convey a message because no one knows, except the platform, that it is happening."

haspoken 4y ago

https://archive.ph/n06fH https://archive.ph/n06fH

olliej 4y ago

kazinator 4y ago

I would rather be told that I can't remove postings from my BBS (due to content, rather than storage issues, say) than be told that I'm liable for the content. The threat of making ISP's liable for content is, by far, worse. "What, I can't delete stuff from the forum I run? Geez." "Wait, so that means I'm not liable for it? Phew, actually!" "Oh, and so that means I don't have to police the forum content to comply with laws? Fantastic news: less uncompensated work for me!"

DoItToMe81 4y ago
The ruling solely applies to social media with 50+ million monthly users. It doesn't affect you, or ISPs, but powerful media interests are trying to make you believe it does.
- kazinator 4y ago
  If three users each refresh the page 18 million times, there is your 50 million a month. :)

DoItToMe81 4y ago

Sounds reasonable. You can't and shouldn't treat companies that have the power to dictate what hundreds of millions see as though they're just a normal hobbyist forum.

cetahfh14615 4y ago

I can't see this panning over well without the supreme court establishing some sort of discretionary middle ground. One camp says the platforms are like newspapers, the other says they are like email companies. Imo the platforms are neither. Content moderation is necessary, moderation of more extreme and malicious viewpoints is necessary, but in recent years a boundary has been crossed with regard to what constitutes "malicious" content (e.g. someone rationally questioning a supposedly widely held viewpoint and being silenced without explanation. The act of censoring someone for making a good faith argument solely because the censor disagrees is in itself malicious) The companies have shown a lack of discretion in this regard and the current application of the 1st is unsustainable long term