Supreme Court orders rethink on Texas, Florida laws banning web moderation

The US Supreme Court on Monday told lower courts to reconsider separate, conflicting rulings on social media laws in Florida and Texas because those courts failed to properly think about the free speech rights of internet platforms. Florida's SB 7072 and Texas' House Bill 20 were enacted in 2021 by conservative lawmakers, and …

[Jellied Eel]

Waters still muddy?

I think there are still challenges reconciling these two statements..

Epstein added that with their rights affirmed, social media companies need to step up and do better in their efforts to moderate hate speech and disinformation.

"Most importantly, the majority emphatically rejected the notion that states can dictate and override private content moderation decisions, treating internet services as more like newspaper publishers than telephony or other common carriers"

On the one hand, calls to curtail 'free speech', on the other, treat publishers as common carriers. One gets limited protections because it doesn't moderate and is just the messenger. Yet by pressuring the messengers to moderate and decide what consititutes disinformation, it forces social media companies into the publisher role and curtails 'free speech'. Which I guess in a First Amendment perspective, only matters when state or federal government attempts to mandate what constitutes hate speech or misinformation.

[doublelayer]

Re: Waters still muddy?

A publisher has a lot more free speech than a common carrier does. A common carrier is supposed to carry my message, no matter what's in it*. A publisher can choose what it is willing to publish and what it's not. That reduced freedom is why common carriers get special protection in law and publishers just have the normal freedom of speech.

* Not that common carriers are forbidden from blocking. Email providers are often considered common carriers, but if I'm accused of sending spam, they'll come down hard on me. One of the services I've used is very concerned about spam and, while they've never done it to me, they have some scary messages about extremely quick punishments for the smallest of spam reports.

[Jellied Eel]

Re: Waters still muddy?

* Not that common carriers are forbidden from blocking. Email providers are often considered common carriers, but if I'm accused of sending spam, they'll come down hard on me. One of the services I've used is very concerned about spam and, while they've never done it to me, they have some scary messages about extremely quick punishments for the smallest of spam reports.

That's a legacy of the Internet, and it being largely self-regulated. Telcos have had common carrier status granted in law, but often with some limitations. Like in the UK, I think it's still illegal to use the telephone network for obscene communications. But that's largely ignored, so consenting adults are still free to talk dirty.

On the Internet, we were largely making it up as we went along. When spam started to become a thing, we had conversations about whether we could block it, or whether that violated common carrier rules or 'free speech'. The later being a bit moot in the UK. But this chap-

https://en.wikipedia.org/wiki/Sanford_Wallace

Became notorious given the sheer volume of spam generated. Plus the number of court cases he generated, eventually landing him in jail. He tried to argue 'free speech', but ToS > 'free speech'. So that also lead to the creation of groups like the Spamhaus project to try to manage the amount of spam & discourage 'spam friendly'* ISPs. Other illegal activities like CP also lead to the creation of the IWF and blocklists to try and eliminate that garbage.

Then came the social media 'networks', who weren't really common carriers like ISPs, but became SPs and wanted the same protections. But that's where the law hasn't really caught up, or is creating conflicting legislation via demands to remove content and moderate 'free speech'. Where the content is obviously illegal, like CP, that's easy. Things like 'hate speech' and 'misinformation' becomes a lot harder. Scotland found that out when they passed their hate speech law. Misinformation is a whole lot harder to regulate, especially when things that have been labelled misinformation later turn out to be true.

But it's all a bit of a mess, especially as 'misinformation' has become highly politicised and weapoonised.. And the legislation to fight unofficial 'misinformation' is either coming, or already here.

*Spam & eggs is, of course a GoodThing(tm). Poor Hormel and an example of how Python has always been a thing on the Internet..

[John Riddoch]

Re: Waters still muddy?

The laws are a bit of a mess. The initial issue was social media companies were treated as "publisher" and liable for whatever was posted on their sites, opening them up to charges of libel, market interference, child pornography etc, etc. This was obviously a problem as it would require them to moderate /all/ the content before it got posted and would break the entire model and frankly, it didn't make a lot of sense as the poster should be liable, not the platform.

Alongside this, platforms want to cut out the worst of the dross on the site, whether it be hate speech, misinformation, illegal content etc because they drive down the value of their site, but that makes them moderators and creates other issues.

This leaves them in a half way house between common carrier and publisher/moderator and it's a mess. Interference by one government opens up the option of interference by another.

[IGotOut]

Got to love the mess that is USA free speech....

"God dag it, I want free speech"

"Cool, I'll tell that 13 year old abuse victim where she can get an abortion"

"You do that and I'll send your sorry ass to jail!"

Sigh....

At least in the UK we only pretend have free speech, when most of us know we don't"

[DoctorNine]

Re: Got to love the mess that is USA free speech....

After recent SCOTUS rectal probes left us unable to exercise free will, maintaining the illusion of freedom is all that we have left. Happy 4th, friends and neighbors.

[UnknownUnknown]

Re: Got to love the mess that is USA free speech....

Or free speech v’s book banning.

[ritmo2k]

The courts decide that the government can attempt to influence free speech and moderate content.

The courts decide that the government cannot create laws to uphold free speech and ensure the playing field is level.

Make me understand.

[doublelayer]

Quick summary:

"The courts decide that the government can attempt to influence free speech and moderate content."

Translation: They should not be forbidden from having any contact between government and social media, including providing non-binding, non-incentivized*, suggestions. The government is allowed to suggest that some piece of information is wrong, and social media is free to ignore them and leave it there.

"The courts decide that the government cannot create laws to uphold free speech and ensure the playing field is level."

Translation: governments are not allowed to pass a law forcing social media to keep up messages, whether they want to or not.

Do you notice the big difference? The first case involves communication and optional suggestions. The second provides mandates and punishments. If the first case involved government forcing comments to be taken down, that would have been struck down too.

Your choice to describe forced publishing as "uphold[ing] free speech" suggests that you don't need help understanding, you just don't like it.

[Filippo]

>Make me understand.

Do you actually want to understand something, or are you just expressing dissent?

On the off chance...

>The courts decide that the government cannot create laws to uphold free speech and ensure the playing field is level.

Premise: by "free speech" here I assume you mean "1st Amendment". If you don't, that's absolutely fine, but then the explanation is simply that you're off-topic, because this is specifically about a SCOTUS decision, so Constitutional law.

The 1st Amendment says that the government can't tell Facebook what to do. It's that simple. Not hard to understand at all.

Facebook can and does tell its users what to do. Because it's not the government. Again, I think it's pretty simple.

The government can make polite suggestions, which makes sense. Just not laws.

[georgezilla]

" Make me understand. "

I'm sorry, but you CAN NOT be "made" to understand. Either you do or don't. And that's on you and no one else. It's a choice that you make.

The first word of the First Amendment of the U.S. Constitution is .............. Congress. " Congress shall make no law ...... " Courts have no say.

Now I as a person, like Social Network Companies, are NOT Congress. And as such can not actually violate your right to free speech. The right "to" something, also includes the right "from" something. I have the right to not listen to someone else's bullshit.

So in my home, if you start spewing shit, I have the right to put a stop to it. I can ask you to stop, politely. Then to ask not so politely. Then to ask you politely tell you to leave. Then to ask you not so politely to leave. And if it comes to it, to call Law Enforcement to come and remove you. Outside of an environment like that, if I don't want to hear it I can just walk away, leave.

Social Networks have that same right. It's their house. When you sigh up to use their platform you are told what is acceptable and what isn't, and you agree to those terms. Weather you read them or not. And if you violate them, they have the right to ban you from the platform. I myself have been band for violating the rules. I called a fucking moron, a fucking moron. I was banned, and I'm perfectly happy with their doing so. I broke the rules. And they DID NOT violate my right to Free Speech. THEY ARE NOT CONGRESS / the GOVERNMENT!!!!

So the problem in the U.S. is that way to many people have no clue as to what Free Speech is. Not a fucking clue. You can say anything that you want, until you right interferes with my right.

The same goes for Religion.

But ...... Not all speech is protected. Yelling fire in a crowd is protected, if there actually is fire. It isn't protected if the intent is to cause fear, panic and potential harm. That is just one example of many things that aren't. The right to Free Speech ISN'T absolute!

[John Robson]

"Make me understand."

I can explain it to you, I can't understand if for you.

[Henry Wertz 1]

In case you wondered

In case you wondered where these laws came from...

Platforms kicked Nutjob Trump off their platforms (for incitement to violence, false statements on Covid, in some cases for personal attacks, there were direct violations of existing policies, not "we don't like him so we booted him off".). His free speech was in no way violated, he kept going off about whatever on other platforms.

Nutjob Trump went on and on about how platforms shouldn't be able to do this and how it violated his rights even though it didn't., Nutjob Trump supporters in various political offices decided they'd disallow platforms from being able to moderate their own sites.

Courts pointed out this isn't an ISP, it's a website so of course they can run their own site as they see fit,

[John Robson]

Re: In case you wondered

In any case his free speech wouldn't have been violated...

He's welcome to stand on a street corner and spew rubbish (though not to incite violence).

However he does not have the right to the front page on the newspapers, nor to a prime time slot on TV, and similarly he has no right to post on any social media platform.

Any of the newspapers, tv stations, or social media platforms may allow him to say whatever (contingent on not inciting violence etc), but that's not what the 1st ammendment guarantees:

"Congress shall make no law ... abridging the freedom of speech"

It doesn't say "Meta/Twitter/etc shall allow anyone to post"

[heyrick]

Re: In case you wondered

"(though not to incite violence)"

On the same day, the same court decided that the President can be afforded immunity if performing acts in the capacity of President. As one of the dissenting judges pointed out, this could well include assassinating his rival and staging a coup to refuse to hand over power. In other words, they've just made the President an elected king.

Hang on, isn't that the sort of crap that the United States was founded trying to get away from?

[John Robson]

Re: In case you wondered

I don't think it would be hard for a lower court to argue that trying to overturn an election result is not "acting in the capacity of president".

Asking the relevant authorities to investigate a specific, or even a general, accusation of electoral fraud would be within the capacity of a president - but that's not what was done.

[Jellied Eel]

Re: In case you wondered

On the same day, the same court decided that the President can be afforded immunity if performing acts in the capacity of President. As one of the dissenting judges pointed out, this could well include assassinating his rival and staging a coup to refuse to hand over power. In other words, they've just made the President an elected king.

They could also use the DoJ to get their political opponents to lock up their rival in an attempt to cling on to power. Oh... wait. Which is of course the irony in the Supreme Court pointing out the President had qualified immunity. Which would also apply to Biden and offer some protection against retribution. But it's still qualified. Presidents can still be impeached, as the Democrats did with Trump. Presidents can still be challenged for illegal activities, as the Democrats are doing with Trump.

But assassinations are also one of the reasons for Presidential immunity, ie the assassination of Iran's Major General Soleimani in Iraq, or just actions committed during US SMOs in Afghanistan, Iraq, Libya, Syria, Ukraine etc etc.

[John Robson]

Re: In case you wondered

"But assassinations are also one of the reasons for Presidential immunity, ie the assassination of Iran's Major General Soleimani in Iraq, or just actions committed during US SMOs in Afghanistan, Iraq, Libya, Syria, Ukraine etc etc."

And they should be - but those are pretty clearly justified* on the basis of national security and the lack of other options.

The same cannot be said of a political rival - there are other avenues available.

* Whether or not you agree with the justification.

[mark l 2]

From my understanding of the free speech rights in the US, the right to free speech only applies against government censorship, not companies or private individuals blocking your rights.

So if you went into a theatre and jumped on stage and started a rant, the theatre is well in its rights to have security throw you out onto the payment. Well the same applies for if you go on social media and start a rant, those companies can metaphorically throw you out on the pavement if you rant goes against their T&Cs which you agreed to when you joined that platform.

[John Robson]

And there are a few exceptions even then - where the government is allowed to curtail freedom of speech.

The obvious examples are incitement to violence, or shouting "fire" in a crowded theatre.

[walterp]

You should look up the details of the case about shouting fire in a crowded theater. The justices on SCOTUS mostly rolled that case back as overstepping. It is a much narrower exception that most people believe.

Also remember that the base issue in that case was a public speaker arguing against the draft. The linking of that to shouting fire was regretted by the Justice that said that a few years later.

It would do to pick a better example for your case.