back to article Appeals court already under fire for upholding Texas no-content-moderation law

The US Fifth Circuit Court of Appeals on Friday said social media platforms are obligated to carry lawful but awful speech, rejecting the entreaties of tech trade groups to block Texas's social media law. "Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say," the three …

  1. Claptrap314 Silver badge

    Here we go...

    FINALLY, a legislative move to limit the have-it-our-way rule of Big Social looks like it might bite. The fact that the plaintiffs are trying to claim first amendment rights to muzzle speech that they don't like as opposed to the interstate commerce clause (which should be a no-brainer) tells you just what kind of funhouse dystopia they want us to live in.

    Newspapers don't get section 230--they get the 1st amendment. Choose one.

    1. Throatwarbler Mangrove Silver badge
      Thumb Down

      Re: Here we go...

      Ladies and gentlemen ... conservative "thought."

      1. Anonymous Coward
        Anonymous Coward

        Re: Here we go...

        Once again, people who call themselves conservatives trumpeting a debunked legal theory based on a debunked misrepresentation of the constitution.

        That mad screaming covering the actual conservatives in the room who point out that esteemed document protects people from censorship by the government. It in no way requires one real or corporate person to host, amplify, or repeat the speech of another. I DOES make any law at the state or federal level that tries to do so invalid.

        All in the name of a desparate attempt to sell the idea that nothing can stop the toxic lunacy, hate speech, and incitement they want to spread.

        The only problems is that I have little faith left in the current supreme court. I thought Roberts was doing alright, but the recent "conservative" additions are dangerous swine. One was put in a stolen seat by blocking a valid appointment, one is clearly applying her personal religious beliefs into flawes legal arguments, and one squeaked onto the bench through a partisan vote ignoring credible allegations of drunken sexual assaults, who has then followed on with a series of poorly based judgements on women's issues. And of course the pre-existing condition of Clarence Thomas and his insurrectionist ties.

        1. ecofeco Silver badge

          Re: Here we go...

          Exactly, and since conservatives have made it a codified point that corporations have rights, this then violates their rights.

          Conservatives: never missing a chance to shoot themselves in the foot.

          1. Michael Habel

            Re: Here we go...

            I think the good Sir is confusing Conservatism with libertarianism.

        2. stiine Silver badge

          Re: Here we go...

          Please explalin Teddy Kennedy's career to the rest of us.

          1. keith_w

            Re: Here we go...

            Unlike the judges under discussion, Ted Kennedy was elected, not appointed.

        3. Clunking Fist

          Re: Here we go...

          "conservatives trumpeting a debunked legal theory based on a debunked misrepresentation of the constitution."

          Really? I don't know your credentials, but a Court of Law says you may well be wrong.

      2. Version 1.0 Silver badge
        Joke

        Re: Here we go...

        I was watching John Goodman saying "Cool as a cucumber up an archbishop's ass" in the US TV series Treme yesterday after enjoying the new Jazz Fest DVD ...

        So I guess I can re-quote John Goodman referring to Trump?

    2. DS999 Silver badge

      Re: Here we go...

      I'm all for dropping Section 230. Facebook and Twitter don't deserve any protection that newspapers and TV never had, it was a dumb law from day one.

      Just don't get excited it will allow the orange criminal back on Twitter. It will mean social media cracking down a lot harder on hate speech, because they will be the deep pocketed lawsuit magnet when some of that hate speech inevitably results in violence. So they will be forced to err on the side of caution.

      1. Cederic Silver badge

        Re: Here we go...

        As long as they err equally on the side of caution, and also block the people demanding riots, the people supporting looting, the people fundraising to pay bail for arsonists, the people harassing and trying to silence those with whom they disagree.

        Because I can easily find many examples of those on social media, and not a single one is 'orange'.

        1. Jellied Eel Silver badge

          Re: Here we go...

          Because I can easily find many examples of those on social media, and not a single one is 'orange'.

          There's a great example from the invasion of Martha's Vineyard and NBC-

          https://www.breitbart.com/the-media/2022/09/16/nbc-deletes-tweet-comparing-marthas-vineyard-migrants-trash/

          “Florida Gov. DeSantis sending asylum-seekers to Martha’s Vineyard is like ‘me taking my trash out and just driving to different areas where I live and just throwing my trash there,’ a founding member of a foundation that helps refugees says,” the tweet said.

          NBC swiftly tried to delete that tweet, but hey, the Internet never forgets. Unless TPTB get more powers to moderate/censor wrongthink, of course. I prefer more practical solutions, like if I don't want to be exposed to 'extremist' thoughts, I can just ignore left/right biased media. Or commit egregious micro-agressions by citing Breitbart, because I know that'll offend Grauniad readers..

          1. John Brown (no body) Silver badge

            Re: Here we go...

            If that quote is accurate, I'm not surprised they wanted it gone as quickly as possible. A better analogy might have been thought of if the person writing it had stopped to think for a few seconds, but it sounds like a thoughtless "shoot from the hip" comment directly comparing asylum seekers with "trash". Not a good look.

            1. M.V. Lipvig Silver badge

              Re: Here we go...

              It's especially not a good look when made by a person who supports illegals coming into the nation, but only if they know their place. At Martha's Vinyard, their place is "maid" and "gardener," not "resident" or "neighbor." And this is how the typical US liberal truly views the illegal, as a source of cheap labor to be exploited and threatened.

              1. JimboSmith Silver badge

                Re: Here we go...

                I’ve been to Martha’s Vineyard as I had a friend who lived there (now sadly dead). Out of season as it is now most of those with money have buggered off. Those still there are the year round residents and are not those rich people who own large properties. They’re often blue collar workers and they’re the ones who have had to help these migrants.

                1. Jakester

                  Re: Here we go...

                  What about the year-round residents of Arizona and Texas who continue to have to help the many thousands of illegal immigrants into their communities? Many there are also blue-collar workers?

                  Martha's Vineyard declared themselves a sanctuary city, so if all those rich people have buggered off for the off season, then their homes and properties must certainly be vacant. What better sanctuary could they give to the immigrants they claim to welcome by giving them sanctuary in their vacant properties?

            2. Jellied Eel Silver badge

              Re: Here we go...

              If that quote is accurate, I'm not surprised they wanted it gone as quickly as possible.

              It appears to be accurate, and as you say, appears to have been someone speaking without thinking. Or possibly Freudian. Regardless, it's a bit of a mess. But I think the bigger mess is the way media and politics has become ever more polarised, despite Biden's claim that he was going to heal the divide.

              It is rather unpleasent, ie illegal immigrants are being used as political pawns. But both sides have been doing that, so the Federal 'night flights' shuttling migrants from Democrat cities to Republican ones, like Florida. Politicians claim those were also without warning, but I suspect they were co-ordinated within the DHS. It has exposed hypocrisy though, eg-

              https://www.bbc.co.uk/news/world-us-canada-62921858

              Three states - Texas, Arizona and Florida - have announced initiatives to move migrants to Democratic-led ones, which they have accused of being "sanctuary" jurisdictions that fail to enforce immigration laws.

              Which is curiously worded given the Bbc's previously reported as US cities declared their 'sanctuary' status. The VP declares the US borders are secure, then gets a couple of buses demonstrating they're perhaps not. The Mayor of Chicago buses her migrants out into Republican controlled suburbs without notice or warning. And then there's Martha's Vineyard, where home owners have notices welcoming all, yet can't cope with only 50 people they're supposedly welcoming. Not a good look for one of the richest, least diverse and least populated parts of the US.

              They do have a small point though, ie another spox said the Vineyard is full. They don't have enough housing for their workers. Plenty of empty bedrooms and land for the wealthy though, but that's a challenge with gentrification. So their response to the 'invasion' has been to call out the National Guard, and shipping their guests to a military base. Chicago's response has been equally hypocritical. One of the largest US cities, currently de-populating claims it doesn't have the support services or infrastructure to host a few hundred migrants, but a suburb apparently can.

              But such is politics. The media (and left) still seems fixated on Trump, yet De Santis is probably a much greater threat. The Dems may try running Newsom against him, which would be.. entertaining. But politicians seem increasingly out of touch. Polls say people's concerns are mainly the crime and the economy. Crime especially in a lot of Democrat controlled cities, like Chicago and NY. And some of those cities seem to want to make that problem worse. Defund the police. End 'cash bail'. I've never been a fan of the US bail system, but there are good reasons to keep (allegedly) violent offenders off the streets pending trial. But politicians are right that the US (and UK) are nations of immigrants, it's just there needs to be some form of management. Add a few hundred thousand people a year, and you need to increase housing, infrastructure and services to support those migrants, which we haven't really been doing.

              1. John Brown (no body) Silver badge

                Re: Here we go...

                "One of the largest US cities, currently de-populating claims it doesn't have the support services or infrastructure to host a few hundred migrants, but a suburb apparently can."

                Everywhere has plenty of space for tax payers. Welfare recipients, not so much.

                "“Give me your tired, your poor, Your huddled masses yearning to breathe free, The wretched refuse of your teeming shore."

                1. Jellied Eel Silver badge

                  Re: Here we go...

                  Yup, it's quite sad really. So the US has gone from Ellis Island and the Statue of Liberty to NIMBY-ism. Ok, so there were some.. issues along the way, like the Emergency Quota and Immigration Acts along the way, but also a Dust Bowl and Great Depression. Some aspects of history may be repeating themselves there though.

                  But the principle still seems sound, just complicated by a bunch of politics. Sanctuary cities want migrants, at least until they show up. Border cities have a surfeit of migrants they can't easily support. Somewhere along the way, a 'superpower' should be able to come up with a solution. History kinda provides that, so set up Ellis-style processing centres, then distribute in some reasonably fair and equitable manner. Challenge seems to be conflicts between Federal & State, and maybe a law or three.

                  But there are vague ambitions to re-industrialise the US, a lot of jobs Americans don't seem to want to do, and a lot of empty buildings. It's the kind of problem perhaps some socially minded billionaires could solve. Buy Detroit, make it great again. Start clearing it's derelict blocks, build affordable housing, infrastructure like schools, clinics/hospitals, tech colleges and incentives to get jobs going there. Sure, it'd take time, cost money, but it's been done before, mostly works and starts rebuilding the tax base of those cities. If not Detroit, there's still a huge amount of Federal land in the US mostly sitting idle that could be used to create 'New Towns'.

                  1. Corey Winston

                    Re: Here we go...

                    I downvoted your post not out of anger nor even a major disagreement with your central point, but because you apparently do not know the meaning of "sanctuary city" and yet you used it in your argument.

                    You wrote, "Sanctuary cities want migrants, at least until they show up." Actually, a sanctuary city is a community that discourages local law enforcement from reporting the immigration status of individuals except in the event of a serious crime. Which means they protect those people and help them to stay after they show up.

                    1. DS999 Silver badge

                      Re: Here we go...

                      Exactly. In some cities in red states even legal immigrants are harassed by police and asked to prove their status, even though "show me your papers please" type of government overreach is supposed to be something conservatives are against.

                      As a result immigrant communities who feel like they can't call the police because they will be removed if they are illegal or harassed even if they are legal won't. And makes them easy prey for criminals as a result.

                      I have long maintained the way to stop illegal immigration is to strongly enforce laws against EMPLOYERS. If there isn't any work for them in the US they won't have reason to come in the first place. And that's not just something that Texas and Arizona need to do, California needs to lead there because they have the most farms and the largest employment of illegals.

                      Everyone is afraid to do that though, because the farm lobby is powerful and they depend on illegal labor for their current price structure. I say if you can't be profitable without illegal labor, why should you get a pass when other employers don't? I'm sure a lot of restaurants would love to hire illegal workers at a fraction of the wage they are paying to help make ends meet right now, but most don't. I'm sure Ford and GM could make more money if they had some illegals on the production line making 1/10th what union workers are paid, but they don't.

                    2. Jellied Eel Silver badge

                      Re: Here we go...

                      I downvoted your post not out of anger nor even a major disagreement with your central point, but because you apparently do not know the meaning of "sanctuary city" and yet you used it in your argument.

                      AFAIK, there is no strict definition, only the way it tends to get reported. With Martha's Vineyard, it was simpler because people had handy posters welcoming migrants, minorities etc. Or there's other media history where cities/states that have identified as 'sanctuaries' have gone on record opposing immigration controls.

                      Problem still seems to be political, ie focusing on political point-scoring rather than actually doing something constructive to solve the problem. Which I guess then gets down to border security vs better measures to integrate migrants into communities that have the infrastructure to support them. Especially when the political stunts may backfire, ie sending Venezualan migrants fleeing socialism into Republican communities, given many migrants are more likely to be small-c conservatives. It's much the same with law & order policy given crime tends to affect minority communities rather than 'liberal' ones like the Vineyard.

                      Oh, and thanks for the comment. I kinda know when my posts are likely to attract downvotes, and it's a shame some of the angry thumbs can't or won't say what they object to.. Which I guess is vaguely back on topic given (anti)social media companies promoting/demoting/hiding content or comments based on 'ratios' and stuff that can easily be gamed.

                  2. DS999 Silver badge

                    Re: Here we go...

                    So the US has gone from Ellis Island and the Statue of Liberty to NIMBY-ism.

                    America has a long history of anti immigrant sentiment, against whoever is perceived as being "other" and arriving in "too large" of numbers. When large numbers of Irish arrived in the 1840s and 1850s there was a lot of anti-Irish sentiment. After that was anti-Italian sentiment, and always plenty of anti-Jewish bias at any time. Since "white" immigration to the US largely ended after WW II, the sentiment has become focused on non-white immigration, allowing them to claim they aren't against immigration just against all the "undesirables" as they see it.

                    When I was a kid I remember protests about the "Cuban boat people" - now Cuban immigrants from the 60s and 70s living in Florida have more and more supported the republican party's anti-immigration rhetoric. It will be interesting to see how DeSantis' stunt with the Venezuelan migrants will play with them, given that they are in the same boat (figuratively speaking) as the Cuban immigrants. They are fleeing communism/socialism/authoritarian/whatever you want to call Venezuela's government just like the fathers and grandfathers of those Cuban-Americans in south Florida did.

        2. John Savard

          Re: Here we go...

          So you're okay with police officers murdering unarmed black people?

          Riots and looting are bad things. It's just that focusing on them, without recognizing what black people in America have had to endure for so long is now, at long last, being recognized as racist.

          That's not the same as supporting looting, arson, and vandalism.

          For some reason, a significant group of people in the United States is trying to fight against the realization that change has to come; that hard-working law-abiding black Americans must finally recieve justice, that they must live in a country where they can hold their heads high, and expect the same kind of experiences in their daily lives that white people have been able to expect all along. That's what we've seen when Trump was voted in, and that's what we've seen on January 6th.

          The Confederate flags make it useless to keep lying any more.

          The shameless use of voter suppression by Republicans make it useless to keep lying any more.

          1. Drew Scriver

            Re: Here we go...

            A lot of the "voter suppression" rules are deemed essential for election integrity by western European countries. To wit: voter ID. Try voting without one in western Europe... for that matter, in some EU-countries it is even illegal to leave your own premises without an ID-card. In other words, you won't even be able to travel to a polling station without an ID-card - let alone cast your ballot.

            To be fair, there are some practices that reek of voter suppression, but progressive countries tend to address those specific issues rather than removing any and all perceive barriers - many of which are deemed essential to free and fair elections.

            1. DS999 Silver badge

              Re: Here we go...

              Voter ID in and of itself is not voter suppression. It only becomes that in states where getting an ID is difficult for some people.

              Poor people are much less likely to own a car, and if you don't own a car you don't have a driver's license. You can get a non-driver's ID but that's not free in most states but it needs to be if that's a requirement for voting. Otherwise it is just another version of the poll tax that the Voting Rights Act made illegal.

              It also needs to be easier to obtain that ID. Requiring other documents only works for people who have them. Poor people tend to move a lot, and are much more likely to have been evicted from where they live at least once in their lives. As a result they are less likely to have copies of their birth certificate. Now theoretically you can get another copy but that's complicated if you don't live in the state where you were born and again there's a fee for that which is effectively a poll tax if getting a birth certificate is necessary to get an ID.

              There should be some sort of system in place where you can bring a couple people who have IDs who will vouch for your identity to get an ID. Make them sign something under penalty of a felony that you are who you say, and the state can issue you a non-driver's ID.

              I won't even get into the bullshit states like Texas are pulling with alternate forms of voter ID, where a gun license is considered a valid ID for voting but a student ID from the University of Texas is not. Pretty clear who they do and don't want voting.

          2. Cederic Silver badge

            Re: Here we go...

            re: "So you're okay with police officers murdering unarmed black people?"

            I'm sorry, you'll have to point out to me where I said anything remotely along those lines.

            Hint: I didn't.

        3. shayneoneill

          Re: Here we go...

          "As long as they err equally on the side of caution"

          They have no obligation to do that.The founding fathers where adamant about that.

    3. Trotts36

      Re: Here we go...

      Absolutely.

      What’s more frightening is the amount of down votes and critical replies. I thought reg readers were critical thinkers ? Or has Millennial thin skin and woke Marxism invaded IT ??

      1. Anonymous Coward
        Anonymous Coward

        Re: Here we go...

        nah, just normal people generally aren't racist right wing cunts

        1. Trigun

          Re: Here we go...

          Nor left wing ones either, one hopes.

        2. Drew Scriver

          Re: Here we go...

          Since we're supposedly all in IT, let's first define terms like "racism".

          And keep the arguments free of derogatory, biased gutter language.

          1. shayneoneill

            Re: Here we go...

            Ah yes, my degree in IT qualifies me as a Linguist and social scientist.

            I have a better suggestion: Leave the definition to people who are experts in the topic? Or do we just not do that now? If so cool, Under my definitions, as an IT professional, a man is not a man unless he features at least one coprocessor. Dont tell me I'm wrong, Wittgenstein might have been a philiosopher, but he couldnt deploy a kubernetes cluster to save his ass.

    4. genghis_uk

      Re: Here we go...

      I can't believe so many people still get this wrong...

      Section 230 does not just protect the big tech companies, it actually protects everyone that hosts a comments section where others can post. In fact, the big guys would happily see 230 scrapped as they are the only ones with money enough for the inevitable lawsuits - it would remove competition and stifle more speech.

      Newspapers get the 1st amendment because everyone does in the US. It is the freedom to say what you want without the Government being able to stop you. Newspaper editors review a few hundred articles from their staff a week and determine the direction that they want to go in before being published - Compare that with a social media platform where posts come in too fast to count and the direction is the community guidelines set by the platform. So articles by the Times / Post etc. are covered by the 1st amendment but the comments and any other interactive part of their websites are also covered by S230.

      S230 does not override the 1st amendment (actually laws can't override the constitution) but it gives an early get out before the expensive 'discovery', so that platforms are not overwhelmed with costs. Remove S230 and moderation is still covered by the 1st amendment (despite what these idiots in Texas just said!) but he costs can spiral massively. I predict that this will not last the first test case and the 5th Circuit judges will be made to look stupid.

      Due to scale, moderation efforts will always miss some posts so it is easy to find examples where it went wrong. This does not necessarily indicate bias, just a failure to catch everything. Note: if a platform wants to only host speech about teddy bears and rainbows, why should they be forced to host speech about anything else? If Twitter does not want far right comments, it is perfectly within its rights to remove it - try posting a slightly negative comment about Trump on 'Truth Social' and see how long it lasts. This is by design, not every platform has to host all speech and that is not necessarily a bad thing

      Sorry, this may not be how you want it to work but it is how it is... Moderation is not Censorship and S230 does more for the little guys than BigTech despite what a bunch of grandstanding politicians say

      1. Hawkeye Pierce

        Re: Here we go...

        Completely agree with the above. Furthermore, I'd point out the ludicrous statement from the ruling that "... the platforms argue... a corporation's unenumerated right to muzzle speech."

        As you point out the First Amendment does indeed prevent a Government from muzzling an individual. But a corporation (platform) removing comment from an individual in no way "muzles" speech - said individual is perfectly entitled to take their comment and post, or speak, or otherwise publish that anywhere else they want (that will allow them).

        While I accept that a major platform banning comment does remove a large proportion of the potential audience, it is ridiculous to equate that to being muzzled.

      2. Michael Wojcik Silver badge

        Re: Here we go...

        Correct, as numerous analyses of S.230 have explained over the years. Yet we still have a great many supposedly-educated people, here and elsewhere (including in the White House) ranting against S.230.

        I've read a great deal about S.230 from many quarters, and have yet to see a cogent, accurate, persuasive argument against it.

    5. Jon 37

      Re: Here we go...

      Newspapers have an editor that reads every story before publication. If a story breaks the rules, then the newspaper can be sued, because they chose to publish it.

      Section 230 says that websites don't need to do that. They can publish without having to check stuff, and if a post breaks the rules they can't be sued over it, they just have to take it down. The original poster remains liable and can be sued.

      Without section 230, websites would have to moderate every single post before it is visible on their site. This includes private messages. Also, they would be a lot stricter about what they allow, since they would be liable for the posting.

      1. Fred Goldstein

        Re: Here we go...

        The case is being argued wrong. This is not about free speech, as users can always go elsewhere or open their own web sites or whatever. It is about a free press. These web sites, including El Reg, are the press. Freedom of speech is the right to say what you want. Freedom of the press includes the right to *not* say what you don't want. Both of these are in the First Amendment and the Court, notoriously trumpy, simply ignored that detail.

        Section 230 was passed to override an egregiously wrong court case (Stratton Oakmont) that held Prodigy liable for a user's post claiming that a company was committing fraud. The company sued Prodigy for libel and won, even though it was not Prodigy the company that said it. And the people who won that lawsuit were in fact later convicted of the very crimes that they were accused of and claimed was libel.

    6. Nameless Faceless Computer User

      Re: Here we go...

      Irony is a concept lost on conservatives. They'll fight for their freedom of free speech to spread hate yet censor messages they don't like such as sexual expression and photographs which contain a female nipple.

    7. GaryLowe

      Re: Here we go...

      So what you're saying is that if someone opens up a private business, say a cake shop, then the government can force said cake shop to make cake for a gay couple even if they don't want to? Is that what you're saying?

      1. Swarthy

        Re: Here we go...

        ODFO.

        We've been over this. The only time that argument holds any value other than signifying "I don't know logic" If you are using it for "Logical Fallacy Bingo".

    8. shayneoneill

      Re: The next generation will attempt to port the kernel to Javascript...

      "Newspapers don't get section 230--they get the 1st amendment. Choose one."

      Fortunately the constitution overrides all laws, which means recipients of section 230 don't have to choose. They get both.

  2. ecofeco Silver badge

    Violation of the Interstate Commerce Clause

    https://www.law.cornell.edu/wex/commerce_clause

    "Dormant" Commerce Clause

    The “Dormant Commerce Clause" refers to the prohibition, implicit in the Commerce Clause, against states passing legislation that discriminates against or excessively burdens interstate commerce

    Also violation of the First Amendment.

    The Appeals Court SHOULD be under fire.

    1. Fred Daggy Silver badge
      Mushroom

      Re: Violation of the Interstate Commerce Clause

      This, and the various Texas court districts supporting patent trolls, is probably proof that Texas is beyond corrupt. Probably beyond saving, too.

    2. Michael Wojcik Silver badge

      Re: Violation of the Interstate Commerce Clause

      Well, the Fifth Circuit is one of our more retrograde Federal circuits, so this result isn't surprising. It's also heavily influenced by Texas, since its circuit is Texas, Texas, Texas, parts of Louisiana and Mississippi, and Texas. While the Federal Circuits are not directly under control of the states, that means Texas has an outsized back-room influence on who gets appointed to the Fifth, so if the current judges want to maintain their ideological legacy they'll be inclined to keep Texas happy.

      The panel for this decision was composed of a Reagan appointee (Jones), a W appointee (Southwick), and one of Trump's (Oldham). Jones, a sometimes contender for the Supreme Court, is known for favoring the death penalty, guns, date rape, and restrictions on bankruptcy; she's also big on restricting freedom of expression because fuck you. Southwick's main claim to fame was drawing more than the usual amount of public ire prior to his confirmation by the Senate thanks to a rather blatantly homophobic opinion he'd written for a child-custody case. Oldham clerked for Alito and is perhaps best known for writing an amicus brief against DACA; he's a typical 40-something neo-con, as far as I can see.

      Not folks who are particularly known for their progressive interpretations of the law.

      The argument in the decision looks bogus to me, since it amounts to compelling publication, which is tantamount to compelling expression. It draws on the usual bullshit about "the modern public square", ignoring the fact that the social-media companies are private enterprises and not part of the public sphere at all.

      Jones et al make a stab at the constitutional questions in part III of their decision, but it's not a compelling one. And their consideration of S.230 in III.D dodges its (c)(2) "otherwise objectionable" get-out-free clause, which would appear to trump HB 20 or any other state law. They construe (c)(2) extremely narrowly, with no explicit justification for doing so.

      I certainly hope another circuit will shortly arrive at a conflicting decision, and that even current SCOTUS will reverse the Fifth on this.

      My opinions only; IANAL. (And I have to say in the Fifth's favor that its judges write surprisingly well, for judges. There's a small degree of informality in the style of many of the Fifth's opinions and a tendency to avoid the typical terrible lawyer-speak that tends to pervade court documents.)

  3. Kevin McMurtrie Silver badge

    Mmmm, Ok

    Texans to change their mind when they see "awful" liberal posts in 5...4...3..2...

    1. Yet Another Anonymous coward Silver badge

      Re: Mmmm, Ok

      A 'bot' that posts the Shahada or lines from the communist manifesto, or even some of that Jesus dude's memes about the poor under every maga post

      1. stiine Silver badge

        Re: Mmmm, Ok

        Or dumb quotes on a light-blue background under every video about the climate that doesn't toe a particular line?

      2. Anonymous Coward
        Anonymous Coward

        Re: Mmmm, Ok

        Or a bot that posts bible quotes about how migrants should be taken in and treated as citizens would be. I'm sure good Christian republicans would welcome that.

        1. ICL1900-G3

          Re: Mmmm, Ok

          Absolutely. I wouldn't fancy Jesus' chances if he showed up in Texas these days - long haired hippy communist.

          1. LybsterRoy Silver badge

            Re: Mmmm, Ok

            He didn't do to well with the Romans (or his fellow nationals) either.

          2. Drew Scriver

            Re: Mmmm, Ok

            You're probably right about Jesus not being all too welcome in conservative areas, He wasn't too popular in leftist countries either (e.g. China, USSR).

            Many of His teachings aren't exactly acceptable in progressive western countries either.

  4. Willie T

    Typical conservative “victim”

    …assuming only their comments are being moderated by those liberal (yeah, right) social media companies. If they only knew how many times my comments suggesting they do something unnatural to their own bodies were blocked by automatic moderation!

  5. chuckufarley Silver badge

    So if I wanted to troll Texas...

    ...I could just make a lot posts about the nutritional value of Senior Citizens and the tax burden of Social Security/Medicare coupled with the tax burden of Free School Lunch programs?

    1. Richard 12 Silver badge
      Trollface

      Re: So if I wanted to troll Texas...

      Politicians have more meat on them, and the benefit of historical precedent.

      https://youtu.be/VVsrv5zftYE

      1. John Brown (no body) Silver badge

        Re: So if I wanted to troll Texas...

        "Politicians have more meat on them,"

        Meat? Or fat from the pork barrels?

        1. Tomato42

          Re: So if I wanted to troll Texas...

          gravy is food too...

          1. John Brown (no body) Silver badge

            Re: So if I wanted to troll Texas...

            In Texas, gravy is one of your five-a-day :-)

  6. Winkypop Silver badge
    Facepalm

    Oh Texas!

    More insane bagger shite.

  7. Brewster's Angle Grinder Silver badge

    "I’m confident that [the US Supreme Court] will reverse."

    *Looks at recent record and current disposition of the Supreme Court.*

    I'm, not.

  8. OhForF' Silver badge

    Consitutaional right to block content and legal precedent?

    it throws out years of legal precedent affirming that online platforms have a First Amendment right to decide what appears on their sites.

    Is there really legal precedent and how does the logic work that says the First Amendment give platforms a constitutional right to choose what to publish?

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

    As other commentards have frequently pointed out (in comments to earlier articles) there isn't anything in this that forces platforms to carry your message. There is although nothing in there that says no law can be made that forces platform to carry your message.

    Don't get me wrong, I'm all for platforms being able to set their "house rules" and decide what content they want to promote and not carry anything else. Arguing there is a constitutional right to be able to censor content in the first amendment seems to be a stretch.

    It seems more logical to say the authors of the amendment wanted to protect free speech and thus platforms should not be able to do anything to abridge free speech. IMHO anyone wanting to overturn that Texan law will have a hard time doing that if they don't have other arguments than pointing to the first amendment.

    1. Richard 12 Silver badge

      Re: Consitutaional right to block content and legal precedent?

      It is clearly unconstitutional for the Government to force you to say something you do not wish to say.

      The social media platform therefore has a clear constitutional right to choose which drivel they wish to publish.

      This is a blatantly unconstitutional attempt by the Texas Government to force them to publish things they don't want to say.

      If you accept this, then logically, the Texas Government can force you to say anything.

      1. FeepingCreature

        Re: Consitutaional right to block content and legal precedent?

        I find it funny how people suddenly become constitutional textualists when the topic is social media censorship. Wonder what their opinion on Roe v. Wade was.

        I'm sure a constitutional argument for this move could be made with enough stretching. Something about the emanations of the penumbra of the first amendment.

        (Besides, if the CIA tells you what to censor, are you really distinct from the state?)

      2. Dimmer Silver badge

        Re: Consitutaional right to block content and legal precedent?

        "It is clearly unconstitutional for the Government to force you to say something you do not wish to say."

        But is apparently is not Unconstitutional for them to tell you that you have to buy insurance because you have been born.

        1. Anonymous Coward
          Anonymous Coward

          Re: Consitutaional right to block content and legal precedent?

          where is it stated in the US Constitution that is is forbidden to ask you to buy insurance?

      3. midgepad

        Re: Consitutaional right to block content and legal precedent?

        Are they publishers?

    2. katrinab Silver badge
      Megaphone

      Re: Consitutaional right to block content and legal precedent?

      Yes there is.

      Free speech means two things:

      It means the government can't prohibit you from saying certain things.

      It also means the government can't force you to say things you don't want to say.

      This is a a law where the government forces Twitter, Facebook, etc, to say things they don't want to say, so it violates their first amendment rights.

      1. Yet Another Anonymous coward Silver badge

        Re: Consitutaional right to block content and legal precedent?

        The government prohibits me from saying things all the time. I'm not allowed to make all sorts of claims about my products that I sincerely believe.

        The government also forces me to say all sorts of things about my product which harm sales

      2. Lusty

        Re: Consitutaional right to block content and legal precedent?

        “This is a a law where the government forces Twitter, Facebook, etc, to say things they don't want to say, so it violates their first amendment rights.”

        No it isn’t. It’s a law forcing Facebook et al not to stop other people saying things. If I say I saw a pink zebra on my Facebook page that’s not the same as Facebook saying pink zebras are a thing. If you can’t grasp that then don’t be a part of the debate. The whole point of exempting them from press rules is that they aren’t editing stuff and making it their own content. If they want everything on their platform to be theirs they have an easy choice leading to extra liability.

        1. katrinab Silver badge

          Re: Consitutaional right to block content and legal precedent?

          If they didn't do any moderation of content at all, it would just be a toxic sewer of spam that nobody wanted to visit.

          So they do decide what they want to publish, and because they do, the 1st Amendment means the Government can't interfere in that thought process.

          1. Lusty

            Re: Consitutaional right to block content and legal precedent?

            “ If they didn't do any moderation of content at all, it would just be a toxic sewer of spam that nobody wanted to visit.”

            Have you even used the platform? Facebook shows you your friends. If your friend starts ranting about subjects you don’t like then speak to them or stop being friends. This is the problem, not the platform.

            Facebook are absolutely able to not promote hate speech. They choose to do so for hits and views. They do not need to remove posts to remove visibility. Twitter is more public but again simply not promoting content solves the problem completely.

            1. Anonymous Coward
              Anonymous Coward

              Re: Consitutaional right to block content and legal precedent?

              do you love right wing echo chambers telling lies?

              thats what you end up with

              1. Anonymous Coward
                Anonymous Coward

                Re: do you love right wing echo chambers telling lies?

                I believe it's called "TRUTH Social"

          2. LybsterRoy Silver badge

            Re: Consitutaional right to block content and legal precedent?

            The tiny flaw in your logic is the assumption that a social media site's "moderation" prevents it being a toxic sewer of spam.

        2. Anonymous Coward
          Anonymous Coward

          Re: Consitutaional right to block content and legal precedent?

          it is a law that prevent sites to remove posts that don't follow the moderation rules that the user agreed to when posting.

  9. Rol

    Christian values? By what measure?

    For a nation that claims to be devout Christian, I hear less and less the words "What would Jesus do?" but more and more actions akin to what the devil would do. "Love thy neighbour" is seemingly hate speech in some devoutly Christian circles.

    1. F. Frederick Skitty Silver badge

      Re: Christian values? By what measure?

      A recent study shows that at current rates of change, the US will be a majority atheist country by 2070. Christians will still be the biggest group of sky fairy worshippers though.

    2. John Brown (no body) Silver badge

      Re: Christian values? By what measure?

      ""Love thy neighbour" is seemingly hate speech in some devoutly Christian circles.

      They probably have it confused with "Do not covet thy neighbours[1] wife" and think it means no more swingers parties.

      [1} Note: UK spelling. Jesus is far more likely to be British[2} than a Texan :-)

      [2] Clearly not as there was no place named Britain 2000-odd years ago just as there was no such place name as Texas. But he may have made a whistle stop tour of the Green and Pleasant land though certainly not the Lone Star State[3].

      [3] Yes, I'm trolling Texas Reps :-)

      1. Yet Another Anonymous coward Silver badge

        Re: Christian values? By what measure?

        I think it's well established that Hashem was of course English, although he moved to America on the Mayflower.

        How else would his kid be white ?

      2. midgepad

        Place called Britain

        2000 years ago there was, and the Romans were there, no?

        1. Lusty

          Re: Place called Britain

          Yes, but they called it Britannia

          1. Yet Another Anonymous coward Silver badge

            Re: Place called Britain

            You would think that if you have to carve everything into marble you would invent a language with shorter word endings

            1. ICL1900-G3

              Re: Place called Britain

              Fortunately, they didn't. See Cicero for details.

      3. Man inna barrel

        Re: Christian values? By what measure?

        Clearly not as there was no place named Britain 2000-odd years ago

        I think Brittania existed as far as the Romans were concerned at about that time, along with Gallia (France), and Germania.

    3. Man inna barrel

      Re: Christian values? By what measure?

      That is just the start. As I understand it, the beliefs of many people who claim to be Christian bear very little relation to what Jesus actually said, as recorded in the Bible. I think what people need to understand is that doing what your church says, and living according to the philosophy of Jesus, are two entirely different things. This has been said many times before over the centuries.

      By the way, I am not a Christian. Much too difficult. But it is philosophy worthy of study.

      1. Swarthy
        Devil

        Re: Christian values? By what measure?

        Personally, I love pointing out the dichotomy between Prosperity Gospel and flipping tables & chasing bankers with a whip. Add in that whole Rich Man/Camel analogy and you have to start wondering what they do believe in; 'cause it sure as Hell isn't the teachings of Christ.

  10. gnasher729 Silver badge

    Does that mean Americans in Texas can freely post about their government and its sexual relations with cows, underage girls and boys, drug habits and so on?

    1. John Brown (no body) Silver badge

      It also seems to mean schoolkids can swear[1] in class, deny anything the teacher teaches they don't agree with and claim the Great Pumkin is The Lord Of All Things, freely and without hindrance 'cos "free speech", Texas style!

      [1] Or cuss, if you prefer the new El Reg style guide.

      1. Dimmer Silver badge

        I will throw my 2p worth

        I get so tired of people telling me what I am, think, and are going to do just because of my skin color and where I live.

        I believe that twit/ face have the right to republish anything they want or not. They own the content (if I read the fine print correctly). I also believe I have the right to sue the crap out of them for / if lies they publish about me.

        I believe in the individual, they are unique and all can contribute and should left alone when not bothering someone else.

        I believe one person one vote. I feel that there would not have been a Jan 6 if the courts had actually heard the evidence. If you disagree, please go to the americanbar.org and read each one and you will see the reasons they did not hear it. Let's just use a block chain tech so someone can verify their vote did count. That will stop a lot of this.

        I believe any fines any government agency levies go directly to the effected party. NEVER put in the "general fund". I am still waiting on the state to send the promised Lottery profit to the schools.

        I believe BOTH parties are trying to divide us so they can profit. The media companies sure are.

        I believe in the Constitution of the US as it was written and intended.

        I believe in hearing an opposing view. It is how I learn.

        I believe Hillary should face charges for the mail server and classified doc's on it, and then I will pay attention to what Trump is accused of. It is all a bunch of crap

        I believe the reason the Jan6 thing is so big and the Antifa riots are not is because it was the bureaucrats that had someone breaking down THIER doors.

        For these ideas I am told I am a threat to democracy.

        There is a lot of injustice in the world. Working together, taking to each other without hiding behind some twit/face we can solve it. Speak up, don't allow violence, and don't allow someone to Label you. You are important and an individual.

        1. F. Frederick Skitty Silver badge

          Re: I will throw my 2p worth

          "I believe one person one vote."

          If that was the reality in the US, then we wouldn't have had a Trump presidency and a lot of the neo-fascist surge that followed. Unfortunately, votes in some States are weighted, so that a vote in Wyoming is worth moe than a vote in California for example. Had each vote been valued equally, Clinton would have been president since she got more votes than Trump (and Gore would have been president instead of Bush, as he also won the popular vote but also lost out to the electoral college system).

          1. Yet Another Anonymous coward Silver badge

            Re: I will throw my 2p worth

            The USA is heading toward one person one vote - on the Ankh-Morpork system

            1. Anonymous Coward
              Anonymous Coward

              Re: One man one vote

              "Man" is the operative word.

              The version of the USA that many in MAGA want is very close to Gilead. Women don't count.

              They are heading that way with the laws on abortion. Women in those states have no control over their own bodies.

              They are regressing back to the US of the 17th Century. Only white landowning males will have a vote and if they dare to vote against the establishment then there will be laws that allow the governor to decide who their electoral college votes go towards.

              The USA is in a downward spiral and very much out of control. It will crash and burn. If they are lucky, then it will split into two countries. I pity those in the South as they are kept afloat by the tax dollars from the North and West.

          2. Dimmer Silver badge

            Re: I will throw my 2p worth

            I agree. But we are a group of states and each state has a say as individuals. If not, lets just call it America and not the United States.

            1. Anonymous Coward
              Anonymous Coward

              As an alternate

              The residents of the ~55 nations and territories in North, Central, and South America as well as the outlying Islands may feel strongly that America means more than the "U.S of" part.

              We have a federal government, that means a defined national government that the states bought into when they signed up. All other powers reside with the state or local governments, or the people themselves. That's how it works.

              Instead the misguided leadership of my party is selling the notion that they can and should pick and choose when the law applies. One of many wrong notions they are pushing these days. So I have to vote against them until we can seat people that handle the responsibility of office deserve the paycheck.

              Those people will stop trying to reduce the Constitution to a talking point and buzzword, stop trying to govern by fiat, stop trying to steal elections while whining about elections that weren't stolen, they lost. They lost through lies, through corruption, through sheer incompetence. That they lost along with the critical slice of the conservative movement that gave it both a majority and it's moral authority.

              So as a conservative, not a flavor-aid drinker, I have to try to clean up this mess now that wheels are falling off. Damage that 30+ years for short sighted establishment Republicans undermined. Leaders in name only, who weakened and corrupted conservatism to the point it was seized by vandals and thieves.

              As those thieves flame out and are called out for their crimes, great ans small, some are trying to use the mantle of the mob to sell the idea that if they can't control the nation, they will break it, and if they cant rule the USA they will rule parts of it. But those that could not rule the nation will fail at the state level too. We have already seen what populist incompetents can achieve at the state level. It gets worse from there, not better, and many of those red states are landlocked, and benefit from the federal coffers more then they pay into it. The fantasy being sold my secessionists and authoritarians is Boris Johnson logic.

              Empty promises without a plan for what must inevitably happen after.

          3. Trigun

            Re: I will throw my 2p worth

            Not an expert on the U.S. votiing, but I thought the whole point of the way it currently works is to stop the cities having undue influence and also to ensure states with larger populations doen't completely (and forever) dominate and get their way for their own interests against the interests of smaller ones.

            1. Michael Wojcik Silver badge

              Re: I will throw my 2p worth

              The "whole point of the way it currently works", i.e. the Electoral College system, was to arrive at a compromise between larger (in population) states and smaller (but generally more industrialized and thus wealthier) ones. It's the same reason each state has two senators and a number of representatives proportional to population.

              It has nothing to do with ensuring a division of power between city mice and country mice, and indeed any effect on the division of power is secondary to its main purpose: getting all of the original 13 states to sign off on the thing.

              These days the major effects of the Electoral College are 1) to allow the occasional election where the candidate who gets the most popular votes still loses, and 2) to prevent throwing the election over to the House of Representatives, which is what would happen (under II.3 of the Constitution) if no one gets a majority of the EC votes and really would be a disaster.

        2. iron

          Re: I will throw my 2p worth

          One person one vote... but you don't actually vote for your president, some presumably rich twats in the Electoral College are the only ones who get to do that.

          So is your president ever democratically elected?

  11. M.V. Lipvig Silver badge

    I like this

    Corporations should never have been granted personhood in the US, which was supported by BOTH political parties in the name of election donations. Naturally, when you focus only on what you want, ie those millions of corporate dollars for your next election, you miss out on the big picture such as corporations getting the rest of those rights.

    Remove 230, remove personhood status from corps, and let the social media platforms be required to allow anyone to post without being censored. If the corp doesn't like hosting viewpoints they don't like they can always shut down. Anyone posting threats or violence can be reported, but a corp should not be allowed to censor anything. And, a corp should not be held legally liable for posts people make.

    1. Phones Sheridan Silver badge

      Re: I like this

      So what about TV and Newspapers? They must broadcast and publish whatever anyone says or does? Sir you are an idiot.

      1. chuckufarley Silver badge

        Re: I like this

        They would still have the choice of whether or not to publish a story in the first place. What's to prevent to The Wall Street Journal or The San Jose Mercury News or The National Review from not publishing a story? All they have to do is publish the comments people write about the stories they do publish. If a comment or post by a user does not pertain to the published story it can be moved to a dumpster called "Off Topic"...

        et voila! A loop hole is born! If you think about for a while you will see that it is a very sharp loop hole that cuts both ways.

  12. heyrick Silver badge

    "because conservative political communication gets flagged as misinformation more often than the opposition messaging."

    Here's a thought... enough with the bullshit? If they need to lie to get their point across, it's not a point worth pursuing.

  13. Anonymous Coward
    Anonymous Coward

    Truth Social

    Of course this won't apply to "Truth Social", (and similar sites), which already happily censors comments it does not like. And there are plenty of pages/accounts within Facebook et al whose "owners" regularly remove content that does not agree with their content.

    In other words, this is about leveraging government power to swamp media with Abbot approved content.

  14. Daedalus

    Imagine what my surprise will be....

    ....when State govt. websites start having "technical difficulties".

  15. Ashto5

    USA Today

    Well what happened to the “American Dream”?

    Sounds like the USA has truly moved to nightmare scenario, the UK is hot on your heels vague laws that protect no one but implicate everyone.

    Our politicians are not worthy to lead a singalong.

    I heard a quote on the radio “ the rich need to take care of the poor or the poor will take care of the rich”.

    1. LybsterRoy Silver badge

      Re: USA Today

      -- the UK is hot on your heels vague laws that protect no one but implicate everyone. --

      and so many of them that maybe ignorance of the law should be a valid excuse.

      I bought a copy of the 2022 edition of the Highway Code - its worthy of an egReg article all by itself. It does tell us some useful things like going out riding a horse in the dark is dangerous. Never would have guessed that. Also there are lots of different types of pedestrian crossings and that there is a right way for a lollipop person to hold their sign.

    2. a pressbutton

      Re: USA Today

      Indeed

      What happened to the British dream? I commend an article in the FT Friday 16 Sep 22 by John Burn-Murdoch.

      "Britain is a poor society with some very rich people"

      The article is summarised here : https://threadreaderapp.com/thread/1570832839318605824.html

      Basically the way things are going:

      The average Slovenian household will be better off than the average British household by 2024.

      By 2030 the average British person will benefit from working in Poland as they will be better off doing that. Except as we are not in the EU, they cant.

      What is the point of a govt that (at best) ignores the living conditions of half its populace?

      This is not a rant at the cons - they just happen to be in power at the moment - this applies to lab too.

      There is evidence that the average growth rate of a country is higher when incomes are more evenly distributed. Our country is becoming less equal and the growth rate is dropping.

  16. Anonymous Coward
    Anonymous Coward

    The US

    Has become ouroboros

  17. mark l 2 Silver badge

    Since when has being able to post on social media been a 'right'? I don't like Facebook and other social media platforms, but they have a long list of term and conditions that you have to agree to when making an account to use their services. Breach those rules and they can remove your posts, restrict your access or suspend you.

    Twitter, Fb etc are bad enough already with the limited moderation they do now. Look at something like 4chan for what happens when you allow hateful /awful but lawful content on a website with no moderation.

  18. John Savard

    End Run

    If I remember correctly, either the Texas law, or the Florida law of this type also had a clause saying that the companies are not allowed to stop doing business in their states as a way to get around that law. It seems to me that this particular clause, at least, ought not to withstand scrutiny by any U.S. court.

  19. Il'Geller

    Possible to evaluate what is said only in the context of what is said. In other words, it is necessary to have many thematically and emotionally related texts, and then to evaluate the statement.

    So we are talking about creating an individual "lexical clone", which helps to clarify whether to drag one to jail for calling for violence, or to laugh to his irony. Again, large models a la BERT are useless.

  20. Steve Davies 3 Silver badge
    Big Brother

    It's Texas so is anyone surprised?

    Don't forget that their AG is under indictment (and has been for several years).

    The Texas song should be 'Anything goes' (As long as it is being done by the state).

  21. teebie

    "Posts deemed awful or harmful can not be taken down if they lawful and it can be argued the material is based on a viewpoint."

    Surely there isn't much that isn't based on a viewpoint? So, peer-reviewed science can be taken down, but not much else.

    Hi, Texas.

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