Texas Social Media Law Goes to Court

David and Sarah spend serious time talking about social media censorship, modern “public squares,” and ...

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David and Sarah spend serious time talking about social media censorship, modern “public squares,” and the ability of Texas and Florida to moderate Twitter and Facebook. They also dive into the legality of picketing at home, answer listener questions, and start a conversation about abortion and philosophy that they’ll finish live and in-person in Miami on Monday.

Show Notes:

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  1. Avatar photo
    Anne W (Raw5254)

    Re social media, “This public square stuff is total BS.” Thank you, David.

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  2. M.G. Picarello

    Sarah, RE: SCOTUS scuttling family days/holidays/vacations - the struggle is REAL. Maybe a podcast mini-series about what could have been…SCOTUS and the multiverse of Mother’s Day? Hang in there!

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  3. Mathew A

    You are missing a very important distinction between a company like Twitter and a Newspaper publishing a letter to the editor.

    A Newspaper is a publisher, thus they can be sued. But the companies and congress didn't want social media platforms to be publishers so they got together and passed section 230. Which said these social media companies are NOT publishers, and gave them liability protection. Along with a narrow band of reasons of why they could still remove content they didn't like (porn etc).

    Thus social media companies don't get to have it both ways. Either they are publishers and so have carte blanche to manage content, and so can be sued. Or they are a section 230 platform, and thus have limitations on how they can manage content.

    To put it another way, yes I think social media platforms need to be regulated as semi public squares. They get some limited editorial powers, but it shouldn't be viewpoint discrimination.

    And yes this is necessary, because as we saw with Parlor, often times everybody moves in lockstep. Creating de-facto censorship in the new public square.

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    1. GregS

      You don't have to be a publisher to have first amendment rights. Those rights cant be taken away.

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      1. Mathew A

        Yes, but then you can be sued for libel when you speak. That's the tradeoff being made here.

        Social media is saying we want section 230 protection, this isn't our speech, we are just a platform, but then that means you there's limitations on how you can edit the content. It's ok to remove porn, harassments etc. It's not ok for viewpoint discrimination

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        1. GregS

          Facebook is not editing its users content. It is choosing whether to display it, and how often to do so. Those are the terms of service its users have agreed to.
          Separately, section 230 says that internet platforms cannot be held liable for their users' content.
          And separately than *that* Facebook can be sued for libel forn its *own* speech. Section 230 only says that its users speech is not the same as Facebooks own speech.

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  4. Richard Kennedy

    I’m no lawyer, so this might not have anything to do with the Texas social media law. I’m old enough to remember the no fault auto insurance laws. Some states back in the ‘70’s so regulated auto insurance that almost all companies stopped doing business in those states under those laws. Something similar has happened with flood insurance more recently as well. How silly can it be to write laws that catch folks not doing business in a particular jurisdiction?
    I’ve heard a lot about HEB. As a retired grocery rat, I wonder if Michigan should go after HEB and force it up here, eh?

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    Marc Frischhertz

    Section 1507 states in part:

    Whoever, with the intent of interfering with, obstructing, or impeding the administration of justice, or
    with the intent of influencing any judge, juror, witness, or court officer, in the discharge of his duty,
    pickets or parades in or near a building housing a court of the United States, or
    in or near a building or residence occupied or used by such judge, juror, witness, or court officer, or…

    The statute itself is directed towards “intent to influence” and does not appear to make a distinction between protests at a court house versus a judge’s residence. Given this, it would appear that if the statute applies to the behavior taking place at the judge’s residences, then it would apply to the same behavior at the courthouse.

    However, the legal commentators I have read seem focused on the fact that this is occurring at the judge’s residences. I think the question is simply, if the behavior is permissible at the court, then there is nothing in the statute to make that same behavior illegal at a residence

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    1. Mathew A

      I believe the argument is that in front of the court house, you aren't attempting to influence, just exercising your free speech rights.

      But when you show up in front of someone's house, THEN yo are attempting to intimidate and thus influence them.

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        Marc Frischhertz

        Yeah, I see that argument, but the statute itself does not make this distinction. For a court to read that distinction into the statute seems contrary to claimed conservative rules for interpretation

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    Nacho Libre

    Not sure I felt entirely persuaded by your arguments that Twitter and Facebook and other social media companies are not a quasi-public square. They've certainly held themselves out to be just that, and in the same way the government waives it's rights to moderate content when it holds government properties open for public discourse, it's a fair argument to say that these private forums have turned themselves into a type of designated public forum subject to the same limitations on what it can and can't moderate.

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    1. GregS

      "They've certainly held themselves out to be just that"
      And do you think advertising yourself as that carries the force of law?
      If Meg Ryan and Tom Hanks held themselves out as "America's Sweethearts while promoting Sleepless in Seattle do you think that gave you the right to sleep with them?

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      Rjosephpaquette

      How many users till a service becomes the public square? Ten thousand, 10 million, 100 million?

      Maybe the Dispatch better cap membership. A problem Chris and Jonah would love to have.

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      1. Mathew A

        Let's call it 25 million

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  7. Avatar photo
    Leo

    I'm pretty unconvinced by David's 1st amendment analysis of the banning all LGBT speech hypothetical. The supreme court has clearly not decided whether 1st amendment freedom of association trumps banning discrimination against LGBT views. e.g. see the non-decision in Masterpiece Cakeshop and the fact that 303 Creative LLC v. Elenis has got decided against 303 Creative at the 8th circuit.

    Even if those cases were to have come out as allowing discrimination there is loads of latitude for the distinction between actual acts of speech like baking a cake and designing a custom website, and passively allowing other people to post content that then gets shown on your website.

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      Jeff C

      As a non-lawyer I’m totally confused why a baker has to show that their work is art in order to be able to deny a customer service but we are saying that social media platforms can deny anyone service for really any reason. Those two standards seem totally at odds.

      For example could a private grocery store put up a sign that says “No Trump Supporters or Bernie Bros permitted. Biden Democrats only”?

      Does the protection only apply to protected classes?

      I’m very pro freedom of association and I think a private entity should be able to do what it wants but this is not the law in all sorts of places…trying to find consistency here. Can anyone help?

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      1. Avatar photocircle-angle-nib
        Sarah Isgur vertical-nib Author

        Yep—a Baker or grocery store can turn away someone because of their political beliefs because that’s not a protected class like race or gender. But as we will see in the website case coming up in the fall, a wedding website developer can turn away someone even in those protected classes because their art/website is their first amendment protected speech. Here the social media companies are arguing these websites are their art/first amendment protected speech. So it’s actually the same argument fundamentally.

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        1. Mathew A

          Seems we've spun quite the tangled web here. Far better to ditch discrimination laws, and go back to freedom of association IMHO.

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  8. Avatar photo
    Marc Frischhertz

    Anyone with a law degree needs to listen to this oral argument and pause to consider that these judges, who make comments and statements like the ones you hear are considered to be applying the law and not making policy. And remember, the FedSoc crowd claims it is the “liberal” judges who are activist and making law from the bench.

    This oral argument makes me so sad for the state of the judiciary

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    1. GregS

      Now now.
      FedSoc is a wonderful society made of wonderful nonpartisan originalist (or textualist - it depends on which philosophy gets you the desired result in a particular situation) lawyers who wouldn't dream of letting ends-based jurisprudence or personal political or religious bias affect their thinking. Also they are very much against attempted coups like the one spearheaded by FedSoc member (and recent practice group chair) John Eastman, even though the society has never once publicly said anything about Eastmans role in the coup attempt. Indeed they haven't had anything to say publicly about January 6th in general, no doubt because the words "January 6th" don't appear in the constitution, and FedSoc is a textualist organization.

      But don't get me started on those
      damn unprincipled liberal activist judges.

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      1. Avatar photo
        Marc Frischhertz

        👏

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    Marc Frischhertz

    As someone who practiced law in the 5th Circuit all I can say is absolutely no one was surprised with the decision from the panel

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    1. EireExpat

      As someone without a law degree, but a reasonable grounding in basic logic and argument, it was like a bad Grisham book dialogue. You really wanted Scott to stop and say, judge, with respect your 'non-questions' are Bonkerstown...

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        Marc Frischhertz

        You said it better than I

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  10. david rae

    Two questions - does the Supreme Court Marshall have the authority to tell all the clerks of the Court that they will be let go unless the "leaker" confesses? Tie that in with signing a statement that would bring perjury into the picture as Ms. Isgur states, and I think the leaker would have to fall on his/her sword, and it would set a precedent for future clerks.

    If the Supreme Court somehow found a right to life of the unborn (there is that pesky "Right to Life, Liberty and Happiness"phrase), wouldn't pro-choice advocates claim SC overreach on a matter that should be settled by state legislatures?

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