US Supreme Court: Texas' law against censorship is censorship

Contents

The US Supreme Court (SCOTUS) has accused the lower federal appeals court for the Fifth Circuit of "fundamentally misunderstanding" the right to free speech. This is because it has declared an online censorship law of the state of Texas to be permissible, in clear contradiction to "principles and jurisprudence" regarding the First Amendment of the US Constitution, which protects free speech from state interference. However, the SCOTUS is also dissatisfied with the Federal Court of Appeals for the Eleventh Circuit, which declared a Florida online censorship law illegal.

This is because both courts failed to adequately address the impact of the challenged laws. The Supreme Court sends the cases back with detailed explanations of the legal situation and references to the facts to be collected. The contested laws may not be applied until further notice.

With the laws passed in 2022, Florida and Texas want to deeply interfere with the freedom of large online platforms to decide what content they host or what content they reward financially. This would have far-reaching effects on the World Wide Web, beyond the borders of the two US states. In addition, the online platforms would have to justify each individual decision. The industry associations Netchoice and CCIA (Computer and Communications Industry Association) are fighting the laws, arguing that they violate the right to free speech, which also includes the right not to be forced to say something you would rather not say.

High hurdle

However, the plaintiffs are not fighting the laws because of specific decisions or penalties, but directly, even before they could point to specific cases of application. This is permissible, but more difficult to win. This is because the plaintiffs must then show that a substantial number of applications of the law are unconstitutional, relative to clearly permissible applications. "No one has paid much attention to this in these cases so far", says the Supreme Court with annoyance.

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This is why the case file is too thin for the Supreme Court to decide. Even in a marathon session on the censorship laws in February, it was unable to close the gap. In fact, it is not the task of the SCOTUS to establish the facts in judicial review proceedings. This is the job of lower courts. The Supreme Court merely decides certain legal questions, if it so wishes, because of the facts established there.

The content of the laws

The two laws are quite different and are each a collection of provisions. Florida's law (known as SB 7072) regulates all "information services, systems, Internet search engines, or access software providers" available in Florida that have an annual worldwide turnover of more than 100 million US dollars or have at least 100 million monthly users. In addition to traditional social networks and search engines, this also affects companies such as Uber, Etsy and Amazon Web Services (AWS).

They will be prohibited from excluding political office holders, political candidates and media companies for longer than 14 days, even if they have violated terms of use. This is a response by the Republicans in power in Florida to the exclusion of Donald Trump by Twitter, Spotify, Meta Platforms and other services following Trump's attempted coup in early 2021.

No protection for Disney in Florida

However, the protection against exclusion from online platforms for media does not apply to journalists, but only to large media companies – and even there, not to companies that operate theme parks. This is a deliberate kick at Disney, which dared to criticize Florida's governor for banning the mention of homosexuality in school lessons.

In addition, there are restrictions on how the online providers covered must treat all users. Terms of use must be applied uniformly and changes would be allowed no more than once every 30 days. Interventions such as the blocking of postings, the provision of notices, the reduced distribution of postings or the blocking of comments is only permitted after explicit notification to the respective user in individual cases. In addition, users are entitled to exemption from any algorithms, review of blocking decisions and insight into the access figures for each individual own or third-party post.

If a post is from a large media company (except theme park operators), political office holder or candidate, or if a post deals with an office holder or candidate, shadow-banning and unpaid prioritization are not permitted at all. If online providers violate the law, they face severe penalties, claims for damages and exclusion from public contracts.

The content of the censorship law in Texas

Although Texas' law (known as HB 20) attempts to focus on traditional social networks at its core, its content-related provisions go much further. Censorship is defined as any discrimination against a user's expression: "'Censor' means to block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression."

All of this is prohibited based on content or based on residence in Texas or a part of the state. Even users who express themselves in a frowned upon manner outside the platform may not be discriminated against on the platform. Social networks would therefore also have to host people who, for example, publicly call for the overthrow of the democratic system or condone racial discrimination. Contractual waivers of such "protection" are invalid.

There are few exceptions; for example, an operator may not take action to protect children unless requested to do so by relevant institutions. Even the threat of violence may only be blocked in certain cases.

Similar to Florida, users could face penalties and lawsuits. In contrast to Florida, however, the Texas law would have an effect beyond the state's borders. Not only are residents and visitors to the conservative state eligible to sue, but also companies from other states that do business in Texas. This requirement is easily met. Social network operators also fear that they will no longer be able to withdraw from Texas, as this alone would possibly be punished as illegal censorship.

The Supreme Court's instructions

The Supreme Court judges consider it necessary to make more precise statements to which the lower courts must adhere. "The first step in a proper analysis (of a challenge to the laws themselves) is to determine the scope of the laws," the SCOTUS explains the homework assignment, "Which activities of which actors do the laws prohibit or regulate?"

In the case of social networks, it is not only about the censorship of public postings discussed in the proceedings, but also about any effects on livestreams and non-public messages between users. In addition to social networks, the impact of the law on email (spam) filters, reviews in online stores, online money transfers between friends or ride-hailing platforms such as Uber and Lyft must also be investigated. These are just examples, emphasizes the SCOTUS, especially as there are constantly new online applications that could be covered.

Only then will it be necessary to examine which of these effects violate freedom of speech. The laws also contain provisions according to which online operators must provide an individual justification each time they block a post, add a comment, do not pay out a financial reward or do not highlight a post. Such a requirement could be unconstitutional because it is too burdensome, which would also have to be raised by the lower courts.

Lesson for the Fifth Circuit

Specifically to the Fifth Circuit Court of Appeals, the Supreme Court justices provide a detailed lesson on free speech. They refer to several earlier decisions, according to which private operators of public forums have the right to decide what is reproduced there and what is not. Accordingly, newspapers cannot be forced to present the opinion of a certain politician, cable network operators cannot be obliged to broadcast certain TV channels, and organizers of parades are not obliged to admit homosexual participants.

Accordingly, operators of online services are also allowed to decide what they display and how, even if the contributions themselves come from third parties. This is because these selection decisions are in themselves an expression of opinion, even if only very few posts are blocked. The operator then expresses which content it rejects. Texas' argument of wanting to better balance the opinions disseminated in public forums could perhaps be achieved through competition law, but the state could not force private individuals to disseminate certain statements more frequently or less frequently: "Texas is not likely to succeed in enforcing its law against the platforms' (...) content-moderation (...)".

The Fifth Circuit was once known for groundbreaking civil rights decisions, but it now has a reputation for being particularly Republican ideologized. The Supreme Court, itself Republican-dominated, has recently overturned an unusual number of decisions from the Fifth Circuit, and on Monday another one was added.

The cases before the US Supreme Court are Moody v Netchoice (case no. 22-277 regarding Florida) and Netchoice v Paxton (case no. 22-555 regarding Texas). All nine Supreme Court judges support the referral back to the lower courts. However, three of the judges give partially divergent reasons.

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