Protecting safety online could become a lot harder.
Thanks to a recent Fifth Circuit decision, the social media services that have become so integrated into our online lives may quickly become much less safe. To combat this, R Street joined the filing of an amicus brief to the U.S. Supreme Court, alongside the Center for Democracy and Technology, the Electronic Frontier Foundation, the National Coalition Against Censorship, the Woodhull Freedom Foundation and the Wikimedia Foundation.
The U.S. Congress has been discussing reforms to Section 230 for some time now, although no singular proposal has emerged with much traction. Into that void, Florida and Texas have stepped up, finding the necessary political will and policy and legal ignorance to advance a bad idea through their state legislatures and governors.
The now-infamous Texas state law HB 20 imposes a range of aggressive transparency obligations on major social media companies, which would be challenging to implement but—at the least—reflect a broad and sympathetic principle that more disclosure could be a good thing. But the law goes too far, setting content-based limitations on how social media companies can engage in moderation. Specifically, social media companies are prohibited from censoring users or content based on “viewpoint.”
The Texas law came on the heels of a similar law in Florida (the notorious “theme park exception” law), one that had been enjoined by the federal district court two months prior to the signing of Texas HB 20. In the Florida case, the initial injunction meant that the bill’s craziest provisions wouldn’t be legally binding unless the law was upheld by the court.
In Texas, similarly, the initial federal court issued an injunction in December, putting the bill’s provisions on ice while the court review continued. But after oral arguments this week, which were widely regarded as confusing and based on what appeared to be a poor understanding of technology, the Fifth Circuit reversed the lower court in a 15-word ruling that overturned the injunction, meaning that HB 20 can take immediate effect. While the Florida law’s fate remains pending after oral arguments last month, lawyers for the state wasted no time in writing to the Eleventh Circuit asking them to take the same approach as the Fifth.
Many experts consider implementation of the law’s content restrictions to be unworkable as written. But if, somehow, the spirit of the bill can be realized despite the messiness of its details, the result would be an internet rife with increased harm, where online safety would come at great cost. Trust and safety teams would be legally prohibited from acting in many circumstances in which the nature of online harm was associated with the speaker’s viewpoint—including, but not limited to, political views broadly defined. And chilling effects would create further incentives to err on the side of leaving content up.
Take into consideration the horrific, blatantly racist mass murder that occurred in Buffalo, N.Y. this past Saturday. It was livestreamed on Twitch. The company took the video down promptly. But experts immediately pointed out that Twitch—were it large enough to be subject to the bill—would likely have been forced to leave the mass shooting video online under HB 20. There could be no clearer example of how this legislation jeopardizes safety online.
Historically, when fundamental rights and freedoms have been threatened by the overaggressive actions of government actors, the best defense has been courts, which for decades championed constitutional rights and protections. That’s not how things seem likely to play out this time. Hopefully the Supreme Court will find more wisdom, or at least sanity, in its review.