Wondering why the Texas social media law is such a big deal for big (over 50M users) social media companies?
Let's look at two elements of it -- the "anti-censorship" element, and the enforcement mechanism --from a litigator's view. There are other problems as well. /1
/2 The anti-censorship provision says the site can't censor based on the viewpoint of the person or the person's content. So, clearly, that would mean that you can't censor for saying "boo abortion" or "yay miniature American flags."
/3 But what CAN the site censor? Well, the site can censor content that's illegal, that's outside the protection of the First Amendment, and certain specific threats. That's a very narrow range.
/4 And the site can clearly censor some other things. What other things? Well -- I guess things that are not "viewpoint" based.
What does that mean, exactly? And how easy is it to determine through litigation?
Those are excellent questions, my friend.
/5 See, I say that the site can censor other things because the law REQUIRES the site to post its "Acceptable Use Policy" about "the types of content allowed on the social media policy."
/6 Now, apparently, this means that a site may discriminate based on TYPES of content, just not VIEWPOINT of content. Like, I guess, the site can say "no swearing" but can't say "no swearing about any of
@nickgillespie's leather jackets." Or "no porn" but not "no anti-war porn."
/7 [I assume there is anti-war porn.]
/8 So. Is that fine and dandy? Not really. The distinction is frequently elusive. It's like the First Amendment distinction between content discrimination and viewpoint discrimination -- often fuzzy, often subject to protracted litigation.
But it gets worse.
/9 See, the Texas law lets the AG, or any aggrieved user, sue if they think the site censored improperly, and get attorney fees and costs and injunctions if they win. If the Texas law stands, there's no more saying "it's Twitter's First Amendment right to moderate."
/10 Say Twitter has a no-swearing policy and I say "
@DavidAFrench has a ****-ass opinion about Aquaman." Twitter suspends me. All I have to do is sue and claim Twitter's REAL reason for censoring me is my viewpoint on David, or Aquaman, not my swearing. Twitter has to litigate it.
/11 This will be made easier because automated moderation on scale is always difficult and usually inconsistent and I will be able to point to other times when non-anti-Aquaman swears weren't punished. And people ALWAYS think they're being singled out. It's in the GOP Platform.
/12 So now even if the line between viewpoint and content is easy, and it's NOT, every time a site censors someone for some CONTENT outside their acceptable use policy, if it happened in a remotely controversial context, the user can claim it was actually viewpoint-based and sue.
/13 We're already in the era of performative litigation, and there are tons of orgs out there eager to fund litigation, and it's cheap and easy to do abusive pro se litigation. The result: a flood of ******** lawsuits.
It gets worse.
/14 Texas stuck language in the bill making it deliberately harder for sites to defend claims. First, it made it clear that people can keep suing in different Texas courts until a court with authority over ALL of those courts says the law's invalid.
/15 Furthermore Texas limited nonmutual issue and claim preclusion -- a fancy way of saying if the site goes into a trial court and says "we already won this issue in another case down the hall" the court says "doesn't matter, this is a different case."
/16 Those are all things you'd do if you wanted to make litigation as attractive, expensive, and difficult to defend as possible. Like if you were doing something crazy and telling people to sue over abortions or something.
/17 Anyway, that's the short version of just ONE problem: the law creates a vague and unworkable "acceptable use" vs. "no viewpoint discrimination" conflict, incentivizes people to bring frivolous suits, and ensures endless litigation.
/18 The only practical approach, short of overturning the law, is to make your Acceptable Use policy as broad as the law, allowing EVERYTHING that's not illegal. Please welcome frontal nudity to Club Penguin!
/19 But even that "fine, we'll have a sewer" approach doesn't solve the problem, because every time you censor someone for one of the "permitted" things (threats, say), the user will claim it wasn't a real threat and you were actually after their viewpoint.
/20 I've been describing a practical, litigator-perspective problem. From the perspective of a fan of the First Amendment, the worse problem is that Texas and the Fifth Circuit have decided sites can't have free speech or free association any more.
/end
/21 PS: thanks to David Greene for pointing out something I forgot. The law prohibits viewpoint discrimination even based on viewpoints NOT EXPRESSED ON THE SITE. So all you have to do is say "they censored my porn because I'm a Proud Boy offline."
