Yesterday, the Fifth Circuit Court of Appeals ruled in favor of Texas Attorney General Ken Paxton in a lawsuit over HB 20, a bizarre law effectively banning many apps and websites from moderating posts by Texas residents. Texas. The court granted Paxton a stay of an earlier ruling to block the law, letting HB 20 take effect immediately while the rest of the case continues. The decision was made without explanation. But court watchers weren’t necessarily surprised as it followed an equally bizarre hearing earlier this week – one that should alarm almost anyone running a website. And without the intervention of another court, it will put the social networks that operate in Texas in legal jeopardy.
HB 20, to recap a bit, prohibits social media platforms from deleting, downgrading, demonetizing or “discriminating”.[ing] against” content based on “the user’s or another person’s point of view”. It applies to any “website or Internet application” that reaches 50 million monthly active users and “allows users to communicate with other users”, with the exception of internet service providers and media sites. Social networks are also not allowed to ban users based on their location in Texas, a provision clearly intended to prevent sites from simply opting out of the state – which might be the easiest solution for many of them.
This is all happening because a judge doesn’t believe YouTube is a website.
Monday’s hearing put Paxton and a NetChoice lawyer before Fifth Circuit Judges Leslie Southwick (who voted against the majority), Andrew Oldham and Edith Jones. Things were risky from the start. Paxton argued that social media companies should be treated like common carriers because of their market power, which would require them to treat all content neutrally as telephone companies do, which no law established is not even close to demanding. In fact, thanks to a Republican repeal of net neutrality laws, even internet service providers like Comcast and Verizon aren’t common carriers.
The panel, however, seemed sympathetic to Paxton’s reasoning. Judge Oldham said he was shocked (shocked!) to learn that a private company like Twitter could ban categories of speech like pro-LGBT comments. “It’s extraordinary,” Oldham said. “Its future owner – he might just decide that we, the modern public square of Twitter… we won’t have pro-LGBT speech.” He then went through an extended analogy in which Verizon listened to every phone call and cut off any pro-LGBT conversation, ignoring the interjections that Twitter is not a common carrier and the comparison does not apply.
But the hearing went completely off the rails when Judge Jones began discussing Section 230, the law that protects people who use and operate “interactive computer services” from lawsuits involving third-party content. Courts have applied the term “interactive computer service” to all sorts of things, including old-school web forums, email listservs, and even gossip sites. But while NetChoice’s attorney argued that websites should have First Amendment protections, Judge Jones seemed confused by the terminology.
“It’s not a website. Your customers are Internet Service Providers. They’re not websites,” Jones said of websites like Facebook, YouTube and Google. “They are defined in law as interactive computer services.” To twist the term a bit more, she asked if the sites were “interactive service providers” which she defined as fundamentally different from media websites like Axios and Breitbart. (Newspaper and blog comment sections have also been repeatedly defined as interactive computing services.)
The idea that YouTube is an “internet provider” and not a “website” is literal nonsense since it is obviously a website that you must access through a separate internet service provider. (Try it from home!) It’s unclear if Jones was confusing “interactive computer services” with ISPs. But the real problem isn’t a judge who doesn’t understand the technology. It’s that she apparently thinks relying on Section 230 strips website operators of First Amendment rights. Around the strange dithering about “internet service providers”, Jones expounded a line of thought that apparently boils down to this:
- Only “interactive computer services” can take advantage of Article 230
- Section 230 protects these sites from being considered the “publishers or speakers” of a given piece of third-party content.
- First Amendment Goes Into Effect If Companies Speak Their Speech
- If companies are not legally responsible for a special case of illegal speechtheir overall moderation strategy should also not be seen as a talk
- So YouTube and Facebook must choose between being Section 230 “interactive computer services” and having First Amendment rights.
There is nothing in this logic that stops at the global tech giants. Jones’ reasoning would be a blank check for laws that force sites (or apps or mailing lists) of any size to accept a government-mandated moderation policy or face defamation and harassment lawsuits every time. time a user posts a comment. He is a lot worse than not knowing YouTube is a website — a term Jones seems to use metaphorically for a speech editor.
In a broad sense, places like YouTube To feel powerful enough to be public utilities, so judges and lawmakers (and Elon Musk) can get away with throwing in vague terms like “modern public square.” But neither Paxton nor the Fifth Circuit judges even cared about a legal framework that would focus on the world’s most powerful platforms. Instead, HB 20’s “50 million user” criteria would likely sweep away non-“Big Tech” companies like Yelp, Reddit, Pinterest, and more. Are these sites (sorry, “internet service providers”) also the telephone company?
Meanwhile, real ISPs are getting a free pass despite their extraordinary power over Americans’ Internet access, seemingly for the sole reason that they haven’t driven Texas politicians crazy.
HB 20 says that if you’re running a social network — even a nonprofit — you’ll have to throw away your community standards if enough people like the space you’ve built on it. And that’s just the beginning of the problems. Does qualifying a publication as false information “discriminate” it? Can YouTube honor an advertiser’s request to remove ads from particularly offensive videos? Can Reddit override moderators to ban users from specific elements of the platform? Can Texas really force any website on the Internet to work in its state? The potential legal headaches are endless and morbidly fascinating.
It’s fair to say: one of the highest courts in the land has blown the internet law because its judges see no difference between Pinterest and Verizon. And they should try typing “youtube.com” into a browser.