Texas and Florida have each passed new aws taking aim at social media companies and how they moderate content. If these laws take effect, platforms will be forbidden from prohibiting or deprioritizing certain kinds of content—creating the potential for a future Twitter landscape filled with hate, porn, terrorist recruitment, Holocaust denial, and really outlandish trolls.
Conservatives have long argued that the platforms discriminate against them by suspending or banning them for sharing political speech, while the platforms say they are only enforcing rules against hate speech or misinformation. On Friday’s episode of What Next: TBD, I spoke with Mark Joseph Stern, a senior writer at Slate who covers courts and the law, about how the legal battle in Texas and Florida could shape online speech for a generation. Our conversation has been edited and condensed for clarity.
Lizzie O’Leary: The Texas bill, HB20, would give social media companies only minimal tools to influence what’s on their sites. How does HB20 work?
Mark Joseph Stern: What it does is essentially strip these platforms of the ability to moderate a vast amount of content through algorithms, by individual decisions made by employees at the company, or by setting policies that users have to abide by. It replaces all of that with a state mandate that forces these platforms to take a very, very hands-off approach and tells them, among other things, that they cannot moderate content, including demoting content in a feed, removing content, or “shadow banning” (as the Texas legislators put it) on the basis of viewpoint. And that includes not just viewpoint in terms of politics or religion or normal debate, but also viewpoint like, did the Holocaust happen? Or should women be stripped of the right to sign contracts? Or should we bring slavery back in the United States? Or should you join ISIS?The world that this law attempts to create is frankly not one in which any rational or decent person would want to use social media for even a second.
When you wrote about HB20 for Slate in May, you described it as “something that empowers aggrieved users to file an unending stream of lawsuits to combat content moderation while creating a slew of onerous regulations that are literally impossible to comply with.” Do you think there is, in any universe, a good-faith reading of this law that comes from a legitimate theory that the platforms discriminate against conservatives?
I think it was written first and foremost as a political stunt. The social media companies are caught in the middle of this battle on the right to persuade the Republican base that they are the victims of this mass censorship campaign, and that the campaign is so bad and stifling speech to such an outrageous degree that the government just has no choice but to step in and use the heavy hand of regulation to fight back.
But I don’t think that’s all it is. I do think that a lot of the legislators who crafted and supported this bill have a pretty intense vendetta against social media companies that they are convinced are censoring Republican and conservative speech, and they feel this is the only way at this stage to push back, so that Republican voices can rise to the top where, under this view, they deserve to be and should be.
How is the Florida bill similar to HB20, and how is it different?
The Florida bill is more focused on deplatforming and was a very direct response to Twitter deplatforming Donald Trump after Jan. 6. The chief regulation there is that no candidate for office can be taken off of a social media platform pretty much under any circumstances, even if they, say, fomented insurrection at the United States Capitol. They have to be allowed to have access to these platforms. Also, posts that are by or about candidates must stay on the website, and the website cannot deprioritize certain posts if they are about a candidate.
The Florida law has this very bizarre bit that bars a social media company from censoring, deplatforming, or shadow banning a “journalistic enterprise” based on the content of its publication. But then it defines a journalistic enterprise so broadly, including any outlet that publishes 100 hours of audio or video online, which would include Pornhub and other user-generated pornography websites, because there’s simply nothing in the bill to restrict that.
It seems to me like there are two ways to look at this overarching issue: from a content moderation standpoint or from a corporate free speech one. From a content moderation standpoint, these social media companies who have banded together here are basically saying what? “This would just turn us into a cesspool”?
That’s the argument. As we discussed earlier, most Americans don’t like being confronted with an endless stream of Nazi hate speech and porn when they log on Twitter, and that is what this bill would do.
But the other argument that these platforms are making—and they are making them as an industry—is that the bills infringe on their corporate free speech. That turning over granular information about their algorithms to the state, for example, is government intrusion into their business. And that has led to a fascinating scrambling of traditional ideological views.
Normally conservatives love corporate speech because it mostly means spending money to help Republicans win elections, right? Here you might expect that if a corporation can spend unlimited money electing candidates, that it can also choose what kinds of expression it wants to present to its users. But we have seen some conservative judges say, “No, no, no. Quite the opposite. Corporations have become a kind of substitute public square where everybody has to go if they want to make their voices heard. And so we should not be looking at these cases as corporate free speech. We should be looking at them as individual free speech being crushed by corporations.”
Is the conservative argument that these companies are then akin to common carriers? That they’re the telephone company or a utility where they have a responsibility to let everybody use them?
That is the theoretical underpinning of these bills and of what conservative judges have put forth. That these companies, YouTube, for instance, is the railroad of the 21st century. And back in the 19th century, railroads were told by the government, “You are the only game in town, so you are not allowed to discriminate against passengers unless you have a really good reason.” And that’s what Republicans and conservative judges have argued here. That if you want your voice heard, Twitter is really the only game in town, and so it has become a common carrier.
Why aren’t they common carriers? Why aren’t they akin to a railroad?
Two things. First, you really can create an alternative to Twitter if you want to. It’s not like a railroad where if the railroad turned you away, you could say, “Well, I’m just going to build my own railroad across the continent.”
The other reason is that the platforms are telling the truth when they say this is not just robotic content moderation but editorial discretion. Facebook and Twitter have these policies about the kinds of speech they wish to promote and the kinds of speech that they do not want to host.
They want to create a safe and welcoming community and they are going to prioritize and deprioritize all kinds of expression to achieve that goal. Is that the exact same thing as a newspaper publishing or not publishing an editorial? Of course not. But for constitutional purposes, it does feel very closely related to a newspaper’s decision over what speech to publish.
While most of the Florida law was struck down by the 11th U.S. Circuit Court of Appeals, the Texas law was recently upheld by the 5th Circuit. The Supreme Court, however, had already put the Texas law on hold. And on Wednesday, Florida turned to the Supreme Court. asking for a hearing on its law. When do you think the court will hear arguments on one—or both—of these laws?
I think it’ll probably happen this term, maybe in early 2023, and we know that because after the 5th Circuit allowed the Texas law to take effect, the companies raced to the Supreme Court and begged for what’s called an emergency stay, that would put the law on pause again. And the Supreme Court granted that stay, and frankly, the Supreme Court just doesn’t do that if it doesn’t have plans to intervene fully at a later date. It almost always sides with the party that it granted the stay to.
What’s interesting here is that the justices were totally scrambled in ideology when this case came to the court. The five justices who halted the Texas law—which by the way is very extraordinary relief; the court’s not supposed to do that unless it’s pretty damn clear that this law is unconstitutional—the five justices were John Roberts, Brett Kavanaugh, Amy Coney Barrett, Stephen Breyer, and Sonia Sotomayor. Not five justices normally hanging out at the same pool party, but here they banded together to issue this stay because I think they all share a pretty similar view of the First Amendment in this context.
On the one hand, these are corporations. They do have rights. On the other hand, Elon Musk isn’t entirely wrong when he says these are quasi-public square, and the kind of speech that exists on these platforms is, in and of itself, crucial to a functioning democracy, elections, etc. I feel like maybe this is just the beginning of some kind of big legal reckoning about how to think about social media platforms and speech, especially in the absence of any congressional movement.
I think that’s right, and seeing this as the first volley in a much broader battle helps clarify why the companies were willing to shell out so much money to set a precedent early on. They want this to be the big landmark Supreme Court decision that says the First Amendment protects corporations’ rights over editorial discretion, which is how they frame content moderation under all circumstances.
Listening to that legal argument it does make me wonder if it sets up a little bit of a clash with another key piece of law that these platforms rely on, Section 230 of the Communications Decency Act, which allows them to say, “Eh, we’re not a publisher. We’re just a platform. We’re not responsible for what people say on our platform.” So how can you, on the one hand, argue, “Yes, we are a publisher who makes editorial decisions,” and on the other say, “Whoops, nope, sorry, whatever the Nazi said, that’s not on us.”
You hope that there’s no penalty for hypocrisy in courts. That’s the short answer. Justice Alito, when he dissented from the Supreme Court’s stay in the Texas case, he pointed this out, and he was not wrong to say, “Look, they’re talking out of two sides of their mouth here.” When it comes to 230 stuff, they say, “We’re not publishers. We have no control over their speech. Do not hold us liable.” But then when it comes to this content moderation regulation, they’re saying, “Oh, my God, we’re absolutely the same as a newspaper. How dare you try to interfere with our editorial decisions?”
That is a legitimate complaint about how these corporations have approached this issue. I frankly do not see good odds of major Section 230 reform or repeal. And so it’s fine for them to just rely on that argument when they’re dealing with these various lawsuits and then turn around when Texas or Florida wants to interfere with their content moderation and make a completely different argument. At the end of the day there’s no law or rule against being a hypocritical litigant.