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US Court of Appeals Rules Moderation of Social Media Content Must Be Restricted

A federal court ruling leaves major social media platforms with a stark choice: submit to a scourge of lawsuits from their most toxic users, or shut down most of their content moderation and cede their spaces. to those same toxic users.

On Wednesday, a panel of the United States Court of Appeals for the Fifth Circuit overturned the stay of a social media law passed by Texas last year that essentially bans point-based content moderation. seen. The barely single judgment(Opens in a new window) of Justices Edith H. Jones, Andrew S. Oldham and Leslie H. Southwick (one of whom did not sign, according to a notation indicating that the panel was not unanimous) allows the law to go into effect, although a challenge to this law from two tech industry groups may continue.

House Bill 20(Opens in a new window)signed on September 9(Opens in a new window) by Governor Greg Abbott, says online forums with more than 50 million average monthly users “cannot censor a user, a user’s expression, or a user’s ability to receive the expression of ‘another person’ based on: (1) the perspective of the user or another person; (2) the perspective represented in the user’s expression; or (3) the geographic location of a user in that state or any part of that state.”

The law defines “censorship” as anything that impedes a posting: “blocking, prohibiting, deleting, deplatforming, demonetizing, de-boosting, restricting, denying equal access or visibility, or otherwise discriminating against the expression “.

The content that HB 20 says sites can still block is limited to material that federal law allows them to censor, that organizations fighting child sexual exploitation have reported, that “directly incites criminal activity or consists of specific threats of violence “targeting” race, color, disability, religion, national origin or ancestry, age, gender, or status as a peace officer or judge,” or is “otherwise unlawful.”

The Texas Attorney General and individuals can sue social media platforms for violating HB 20.

Defenders of the law, like Abbott, called it a mandatory response(Opens in a new window) to sites favoring speakers on the left over those on the right — the bill and a similar one in Florida were drafted after social sites banned President Trump for inciting the Jan. 6 insurrection and his relentless lies about his 2020 election defeat – but his coverage of the ban on viewpoint moderation goes much deeper.

To put this in more precise terms, HB 20 would require Facebook to accept Vladimir Putin propagandists and deniers and force Twitter to welcome back anti-vaxvers and ISIS advocates.

As Santa Clara University Law School Associate Dean Eric Goldman wrote after the law passed(Opens in a new window):

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“To reinforce the point that lawmakers have no interest in the quality of online discourse, lawmakers rejected amendments that would have allowed internet services to remove content related to Holocaust denial, terrorism or disinformation about vaccines. In other words, the legislator agrees with the unrestricted proliferation of all these categories of content.

Goldman and other legal scholars have repeatedly noted that this loophole violates First Amendment free speech guarantees, which also protect a publisher’s right to choose what to publish. For example, PCMag has the First Amendment right to refuse to publish your comment and to refuse to publish the next post I write.

With the Texas law now in effect, one person in particular should watch its consequences with great interest: future Twitter owner Elon Musk, who keeps saying that Twitter’s moderation policies shouldn’t go beyond blocking. illegal content.

Editor’s note: This post was first related to an older decision in this case from a different set of judges; we’ve corrected it to point to a copy of Wednesday’s decision.

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