Of the various crazy reactions to the Supreme Court’s spring 2024 decision, the most completely crazy is: Net Choice vs. Paxton The hysteria that broke out earlier this week Net Choice – for example, Florida Attorney General Claims Victory The New York Times wrote an article about the First Amendment, even though the president had clearly lost. Out of Control — Supporting the facts Net Choice It’s a simple case.
This is about whether the government has the right to decide what you see online.
The real target of any social media censorship scheme is rarely a company or industry, but rather you, the average internet user.
Adding color, Net Choice The issue is that the legislatures of Florida and Texas believe they have the power to dictate to social media companies what political views can and can’t be expressed on their websites. Those states passed laws that said social media companies couldn’t take down content in a non-neutral way, and they required social media companies to feature “conservative” content that was widely thought at the time to be suppressed for political reasons. The social media companies sued, arguing that this violated their right to free speech.
Content-based powers of the kind sought by Texas and Florida are routinely exercised by governments abroad but are rarely exercised in the United States, thanks to the First Amendment to the U.S. Constitution. The First Amendment was deliberately designed to relieve the government of the task of policing political speech, first by abolishing the common law of seditious libel and later by expanding it by analogy to new schemes that attempt to achieve similar ends through different means, such as criminal syndicalism statutes and content moderation statutes.
The Supreme Court has long been hostile to laws that violate the First Amendment. Net Choice vs. Paxton was no exception. The court voted 9-0 to vacate the lower court’s decision and remanded the lower court with a stern warning: “When social media platforms moderate content, they exercise expressive choices… and because that is true, they are entitled to First Amendment protection.”
The fact that Justice Kagan wrote those words Net Choice It’s a very strange bedfellows. On one side you have a fiercely conservative and populist Attorney General from the South, and on the other a liberal Manhattan law professor who would never attend the same cocktail party as the Attorney General. What these lawyers have in common, at least among those of us who are commercially minded, is that they tend to have a lot of opinions but little experience, and their opinions on the issue are very long indeed. If you have any experience with state censorship, you know that the true target of social media censorship schemes is rarely a corporation or an industry, but rather you, the average internet user.
And Paxton and his left-wing allies in this case have offered a number of lengthy rationalizations aimed at obscuring this simple fact, the first of which was completely bizarre and (judging by the Supreme Court’s handling of the case) 100% legally incorrect. Amicus Brief The motion, jointly put forward by several nationally known left-leaning law professors, including Larry Lessig, and the Project on American Economic Freedom, argues that NetChoice’s position on the matter — that states do not have the power to police speech — somehow threatens anti-discrimination laws and “[place] Social media is beyond the reach of state police powers.”
More recently, on Tuesday, July 2, The New York Times published another legal opinion piece, this time titled “The First Amendment is Out of Control,” by Columbia University law professor Timothy Wu, who, not coincidentally, is also one of the co-authors of the bizarre and erroneous amicus brief mentioned above. Wu slammed the decision, saying that the federal court “lost its cool” in its ruling. Net Choice“[transforming] “It has transformed a constitutional provision intended to protect unpopular views into an all-purpose nullification tool primarily used to protect corporate interests.” [content moderation] These decisions are equivalent to the representational decisions made by a newspaper editor.”
Of course, that’s true. Anyone with experience in the social media field is undoubtedly aware of it, not just talking about it. Just log into any content moderator’s interface on any social media website and you’ll see it clearly. Flagged content is provided to editors who are in a position to decide whether to leave it up or remove it. The buttons available to moderators range from warning to mute to delete to ban, providing a means to enforce editorial justice according to company policy and their own discretion. The decisions moderators make are functionally no different from an editor hitting the “send” button on an email to remove an article, or a comment editor at a newspaper deleting a comment under an article in the comments section. It’s a human editorial decision made by electronic means.
Content moderation laws like those in Texas cannot police “Big Tech” because content moderators do not police “Big Tech” speech. The so-called “Big Tech” platforms, as a rule, rarely speak out on their own platforms. When they do, they do so discreetly, through government-related accounts, press releases, etc. This is done for both practical and legal reasons. As a commercial matter, it is significantly more scalable to let users generate content and page views for free than to pay them to do it for you. Legally, the less you speak, the less likely you are to be sued, since Section 230 of the Communications Decency Act makes it illegal, with certain limited exceptions, to hold hosts of online services liable for what their users say. This rule means that companies like The New York Times, for example, are not liable for what users say in their comment sections. Similarly, companies like Twitter/X are not liable for what their users tweet.
So content moderation laws aren’t about companies, they’re about people who create that content, who communicate that content to others, and who seek to receive that content, and to steer the information those users see in the direction that the law’s drafters want them to see.
Content moderation laws are tools of social control. They necessarily call balls and strikes on opinions, choosing which opinions are unpopular and which are not. Otherwise there would be no point in having the laws in the first place. They are used in this way overseas, and Texas’ social media law requires “neutrality” and mandates hosting. all It mandates that social media platforms “not censor their users or their ability to receive expression” based on the views of the users or others. [or] “The views expressed in your expressions or those of other persons”
Under this law, a Jewish-themed social media platform couldn’t prevent users from posting Nazi propaganda across its site. A forum for new moms couldn’t prevent anti-natalist Malthusians from insulting birth mothers, so long as the insults were point of view. Forcing companies to feature terrible speech or terrible speakers clearly infringes on people’s freedom to decide what they want to say and forces social media companies to expose their users to a particular way of thinking.
Accepting that social media content is a legitimate subject of government regulation would lead to endless attempts at government surveillance, a fact that Ken Paxton and his apologists are well aware of. Personal insults, political insults, and inconvenient facts are routinely censored by governments around the world. One only needs to look at the example of the German government in April of this year to see how an unchecked regime of censorship can grow into absurd proportions. Criminal investigation investigation sent The US social network was inundated with criticism from users who dared to mock a fat German politician for being overweight: stating facts about an obese member of parliament appears to violate Germany’s “libel” law, which has exactly the same force as the seditious libel law once abolished by the First Amendment.
The problem is Net Choice vs. Paxton It’s pretty easy to understand: a group of Southern conservatives and Northern liberals, mostly lawyers and politicians, believe that their one-party states should have the power to regulate what is said and seen online. These people are happy to instigate all sorts of lengthy legal theories to hide the facts; in other words, they are sneaky censors who hate when people disagree with them.
They want to use the government, in full swing with its monopoly on legitimate violence, to silence you not by silencing you, but by drowning you out.
Our response as a society is In the immortal words of Elon Musk“Message received.”
