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 that effectively bans many apps and websites from moderating posts by Texas residents. The court granted Paxton a stay of a previous decision to block the law, allowing HB 20 to go into effect immediately while the rest of the case proceeds. The decision was made without justification. But court observers weren’t exactly surprised because 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, social networks operating in Texas are at legal risk.
HB 20, to summarize briefly, prohibits social media platforms from removing, demoting, demoing, or otherwise “discriminating” content.[ing] against” content based on “the user’s or another person’s point of view”. It applies to any “Internet website or application” that reaches 50 million monthly active users and “allows users to communicate with other users”, excluding 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 pulling 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 placed Paxton and a NetChoice attorney before Fifth Circuit Justices Leslie Southwick (who voted against the majority), Andrew Oldham and Edith Jones. Things were tricky from the start. Paxton argued that because of their market power, social media companies should be treated as joint operators, which would require them to treat all content neutrally as phone companies do, which no established law comes close to requiring. Thanks to a Republican repeal of net neutrality laws, even Internet service providers like Comcast and Verizon aren’t joint carriers.
However, the panel appeared to agree with Paxton’s reasoning. Judge Oldham admitted he was shocked (shocked!) to learn that a private company like Twitter could ban language categories like pro-LGBT comments. “This is extraordinary,” Oldham said. “His future possessions — it might just decide that we, the modern public square of Twitter… we’re not going to give a pro-LGBT speech.” He then performed an extended analogy in which Verizon tapped every phone call and every pro-LGBT -interrupted the conversation, simply ignoring the interjections from Twitter is no ordinary carrier and the comparison does not apply.
But the hearing got completely out of hand when Judge Jones began discussing Section 230, the law that protects individuals 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 list servers, and even gossip sites. But when NetChoice’s attorney argued that websites should get First Amendment protection, Judge Jones seemed baffled by the terminology.
“It’s not a website. Your customers are Internet providers. They’re not websites,” Jones claimed of sites like Facebook, YouTube, and Google. “They are defined in the law as interactive computer services.” To mangled the term a little further, she asked if the sites were “interactive service providers,” which she defined as fundamentally different from media sites such as media sites axios and beard. (Comments sections in newspapers and blogs have also been repeatedly defined as interactive computer services.)
The notion that YouTube is an “internet provider” and not a “website” is nonsense in the literal sense, since it is proven to be a website that you must access through a separate internet service provider. (Try it from home!) It’s unclear if Jones confused “interactive computing services” with ISPs. But the real problem is not a judge who doesn’t understand the technology. In fact, she seems to think she’s relying on Section 230 to strip website operators of First Amendment rights. Around the odd “Internet Service Provider” babble, Jones has laid out a mindset that seems to boil down to this:
- Only “interactive computer services” can rely on Section 230
- Section 230 protects these sites from being considered “publishers or speakers” of third-party content
- The First Amendment comes into effect when companies answer questions
- If companies are not legally liable for a concrete example of illegal speechtheir overall facilitation strategy shouldn’t count as speech either
- So YouTube and Facebook have to choose between “interactive computer services” under Section 230 and First Amendment rights
Nothing about this logic spares the tech giants of the world. Jones’ reasoning would be a blank check for laws that require websites (or apps or mailing lists) of any size to accept a government-mandated moderation strategy or expose themselves to defamation and harassment lawsuits every time a user posts a comment. it is much worse than not knowing YouTube is a website – a term Jones seems to use metaphorically to mean a publisher of speeches.
There’s a broad sense that places like YouTube feel powerful enough to be utilities that judges and legislators (and Elon Musk) get away with tossing around vague terms like “modern public space.” But neither Paxton nor the Fifth Circuit judges have looked into a legal framework that focuses on the world’s most powerful platforms. Instead, HB 20’s “50 million users” criteria would likely sweep non-“big tech” companies like Yelp, Reddit, Pinterest, and many others. Are these sites (sorry, “Internet Service Providers”) also the phone company?
Meanwhile, bona fide ISPs get a free pass despite having extraordinary power over Americans’ Internet access, apparently for the sole reason that they haven’t infuriated Texas politicians.
HB 20 says that if you’re running a social network — even a non-profit one — you need to jettison your community standards if enough people like the space you’ve built on top of it. And that’s just the beginning of the problems. Is it “discrimination” to flag a post as misinformation? Can YouTube honor an advertiser’s request to remove ads from particularly explicit videos? Can Reddit use moderators to ban users from certain parts of the platform? Can Texas really force every website on the internet to work in their state? The potential legal headaches are endless and pathologically intriguing.
Just this much: One of the nation’s highest courts blew up the internet law because its judges see no difference between Pinterest and Verizon. And they should try typing “youtube.com” into a browser.