why texas went to war with social media

You know a ruling is bad when lawyers on Twitter start asking why they bother studying law when judges drunk with power become rubber stamps for increasingly unhinged politicians. In this particular case, we’re talking about the U.S. Fifth Circuit, a notoriously wild activist court, deciding that freedom of speech does not apply to social media platforms with more than 50 million users, but is absolute for those who log on. So, for all intents and purposes, the judges want to make moderation on Facebook and Twitter illegal without their case-by-case say-so.

If you listen to the fans of the ruling, you’ll be told that this is a great victory for free speech and that surely, more discourse is better than less. If you actually ask them where terroristic threats against teachers, hospitals, government officials, and political activists fit in their ideas of free speech, they’ll dutifully dodge the subject or derail into fascistic proclamations. Free speech is good, and so is discussing different ideas, but as Karl Popper’s Paradox of Tolerance points out, it ends when those exercising this freedom call for a violent end to all dissent.

In other words, get as passionate as you want about everything from tax policy to debates on history, race, politics, and religion. If you want to say that your government sucks or that some politicians you particularly dislike are idiots, knock yourself out. But when you call for them to be assassinated, or you start leaving addresses and phone numbers and saying that it would be so interesting to “see someone take action about this” after painting those in question as evil or monstrous, that’s when civilized society has to step in.

But the Texan law on which the Fifth Circuit recently ruled can be read as expressly forbidding this, on top of making it illegal not to offer the service in their state. Imagine a resident of the state posting death threats against politicians or calling for a terrorist attack, and the platform can do nothing without a court’s agreement that the content warrants removal. By the time a ruling can be made, the damage is long done, which opens the door to a lot of complicated and important questions about social media’s duties and obligations.

how texas’ social media law violates precedents

First and foremost, if according to American law, companies also have freedom of speech, and by extension, because they own the servers on which problematic content is exercised, they’d also have the right not to associate with certain users. This isn’t even an issue of serving or not serving certain customers; something on which they too have freedom according to the same court system. The situation is more like you having the right to tell unwelcome guests to leave your property, and if they refuse, they’d be trespassing.

But now imagine that a court rules that your house, despite it being private property which you pay to maintain, has to welcome every guest and you cannot demand they leave until there’s a court ruling allowing you to do so. Their reasoning? Your house seems big enough to be treated as a common good rather than a private residence, and they can come into your kitchen to make a sandwich, then put their feet up on your couch, and stay as long as they like. Which is, of course, an absurd contradiction of their own legal precedents on the subject.

And that brings us to our second concern. What if, in the process of having to host anyone who comes in, you spot an aggressive guest threatening others with a knife? According to the law, you can’t throw them out and because you didn’t get permission in time, they’ve now stabbed three people. Could their families now sue you for allowing a clearly dangerous stranger posing an imminent threat into this space and doing nothing to stop them? Or could they sue the government for tying your hands against acting on a clear and present danger?

Finally, there’s also the restriction which says that you can’t do the equivalent of moving out of your house to a different state to get out of this arrangement. But if you can’t trap just a person in their home and force them to house squatters with no way to screen or remove dangerous guests no matter how much of a disturbance they cause, you also can’t force a company to do business with governments and people it doesn’t want to. The same courts already ruled this as settled law, but because their targets now are Facebook and Twitter, they’ve decided to use the storied Federalist Society legal theory of “because fuck you, that’s why.”

why social media is the legal wild west

One of the most important things we need to remember when talking about the internet is that the web began as a lawless place because it was conceived as a new utopia of free speech and mutual understanding and education by genteel academics who settled their debates over beer at conferences. It has no built-in mechanisms to adequately deal with bad actors because they never envisioned a permanent, persistent threat of people using this technology for evil. They, and those sold on their vision, just assumed we’d figure it all out in time.

Unfortunately, we haven’t. Or, at least, older generations for whom the web appeared well into their adulthood haven’t, and once they were given full access to the world’s biggest and fastest growing social media platform, they declared open season on the rest of society. And instead of stopping them, social media platforms profited off their abuses of the technology. Used to free reign, these abusers are meeting even easily circumvented acts of damage control like banning accounts with laws that demand for the platforms to become subservient public squares.

Yet no one wants a completely unmoderated social media where everyone could say or do as they please and basic moderation is decried as totalitarian censorship. That’s how you end up with sites populated almost exclusively by neo-Nazis, pedophiles, and aspiring terrorists when you look away for a few months. It may come as a shock to Texan legislators, but most people really do not want to be bombarded with paranoid screeds, bigoted propaganda, and violent fantasies of society’s most disturbed all day, every day, and will demand swift action.

These attacks on social media moderation and tech platforms shouldn’t just be dismissed. It’s yet another terrifying indicator of how the Boomers and Gen Xers writing and supporting such laws have not only lost their ability to consume media critically, they’re also no longer able to handle critical feedback to such a degree that they want to punish anyone who denies them a platform to scream their opinions to the world, no matter how unwanted these views are and how much of a liability those who own the platform’s infrastructure judge them to be.

This law and the ones that will surely follow are not about “fighting censorship.” They’re about very angry, entitled, and paranoid people refusing to take no for an answer and telling us that if we don’t stay quiet and listen to them tell us what to do, they’ll make us listen. And we really, really need to understand this fact and act accordingly.