BY KAREN GULLO – EFF – Creative Commons
(EFF) – The First Amendment and the freedom of speech and expression it provides have helped make the internet what it is today: a place for diverse communities, support networks, and forums of all stripes to share information and connect people. Individuals and groups exercise their constitutional right to host and moderate sites that offer a common place for people who share a hobby, a religious belief, a political opinion, or a love for a particular kind of music.
Online platforms, from Facebook to your blog, have the right to decide what speech they publish and how they publish it. In that way, online platforms are no different from newspapers or parade organizers.
A federal appeals court in Louisiana, ruling last month in the case Netchoice v. Paxton, dealt a staggering blow to this bedrock principle of free speech online. The U.S. Court of Appeals for the Fifth Circuit upheld an unconstitutional and disastrous Texas law that creates liability for social media platforms’ moderation decisions, essentially requiring that they distribute speech they do not want to host. Texas HB 20 restricts large platforms from removing or moderating content based on the viewpoint of the user. The law was created and passed to retaliate against social platforms that allegedly “silence conservative viewpoints and ideas,” despite there being no evidence that large platforms’ moderation decisions are biased against conservative viewpoints.
Tech industry groups NetChoice and the Computer and Communications Industry Association (CCIA) challenged the law in court. EFF filed amicus briefs in the district, federal appeals, and Supreme Court arguing that while internet users are sometimes justifiably frustrated by social media platforms’ content moderation decisions, they nevertheless are best served when the First Amendment protects those decisions. That First Amendment right helps the internet grow and provides diverse forums for speech.
After a district court preliminarily blocked the law, Texas appealed to the Fifth Circuit, which found that HB 20 doesn’t violate platforms’ First Amendment rights. The court ruled that services do not have a constitutional right to engage in content moderation—instead, the court called platforms’ moderation and curation of content on their sites “censorship.” Large platforms that want to moderate user speech in violation of HB 20 have “an armada of attorneys” to defend them in court, the Fifth Circuit said. The law allows individuals and the state attorney general to sue platforms over content moderation and get reimbursed for their attorney’s fees if they win.
This is an extraordinarily dangerous turn for internet freedom, and the right of people with diverse opinions—that may be unpopular or aggravating to others—to speak freely online. The Fifth Circuit’s ruling is deeply problematic on many levels, including its failure to recognize how Congress, in enacting 47 U.S.C. § 230, has already preempted state censorship laws like HB 20. This post, however, focuses on the terrible implications that the ruling has for online speech.
The logic of the Fifth Circuit’s ruling has damaging implications for every service hosting user-generated speech, not just the largest platforms like Facebook and YouTube. While HB 20 only applies to platforms with more than 50 million users, the court’s holding that the First Amendment does not protect online content moderation can easily be applied beyond them. In the Fifth Circuit, which covers Louisiana, Mississippi, and Texas, this unprecedented scaling back of free speech endangers smaller, less powerful, and less wealthy services. Many small and medium-sized online services, described in our amicus briefs against HB 20, moderate content to serve particular communities, topics, or viewpoints.
The effects cannot be overstated—HB 20 and laws like it will destroy many online communities that rely on moderation and curation and cannot afford to fight the onslaught of lawsuits that the Fifth Circuit invites. Platforms and users may not want to see certain kinds of content and speech that is legal but still offensive or irrelevant to them. Rejecting such content or even deprioritizing it in a feed would come with a ruinously high price tag.
For example, the Fifth Circuit’s holding could allow laws that require sites supporting people suffering from chronic fatigue syndrome to post comments from people who don’t believe this ailment is a real disease. Sites promoting open-carry gun rights that disallow comments critical of gun rights would violate such laws. A site dedicated to remembering locals whose families were affected by the Holocaust could be forced to allow comments by Holocaust deniers. Platforms unable to withstand an attack of harassing comments from trolls could be forced offline altogether.
The Fifth Circuit’s decision allows concerns about private censorship to serve as the basis for government control of speech. Whatever your political views, we hope you recognize the danger of the Fifth Circuit’s decision, because it fundamentally alters our ability to decide for ourselves the types of speech and views we want to see and associate with, including our right to exclude others or ourselves from speech we don’t like. Community-led and diverse forums dedicated to particular topics and for particular people with specific views—which is nearly all forums—are now potentially under the thumb of the state, which could force them to serve its interests by calling the removal of opposing views “censorship.”
There’s something for everyone on the internet, and that’s how it should be. Of course, it’s true that moderation decisions by large platforms can silence legitimate speech and stifle debate online. But as EFF has repeatedly argued, the way to address the concentration of a handful of large services is by reducing their power and giving consumers more choices. This includes renewed antitrust reforms, allowing interoperability, and taking other steps to increase competition between services.
These efforts would allow people who don’t like the viewpoints expressed on one site to move to another and keep their social networks while increasing the number of platforms that host speech that reflects their views and interests.
Unfortunately, the Fifth Circuit’s decision is likely to result in fewer sites for users to choose from and will likely do very little to alter or diminish the dominance of the platforms. This is because, as the Fifth Circuit observes, the largest services have immense legal resources to fight the lawsuits permitted by HB 20. They will survive, while other smaller sites targeted by new laws similar to HB 20 will not.
Government should not have the power to tell websites what opinions they must host, and we hope to that the Supreme Court will strike down this disastrous law and reject the Fifth Circuit’s dangerous logic that undermines the First Amendment rights of online services and their users.