October 6, 2022

What happened first is that social media companies like Twitter and Facebook, after years of embracing strategies of growth at almost any cost, began facing outcry over how toxic their platforms had become. This overlapped with the 2016 presidential election in the United States, a highly contentious race in which Donald Trump actively stoked vicious online rhetoric. At the same time, Russian actors exploited the platforms in an effort to boost Trump’s chances of victory, an effort that had a minor political effect but a massive psychological one.

So the platforms began tightening the screws. Twitter, for example, implemented a system that shunted people who’d repeatedly been flagged for harassment to the background. Suddenly, some of the loudest, most active voices on the platforms discovered that their reach had been limited or their efforts to go viral shut down. A lot of those people sat on the political right and decided that the issue wasn’t their behavior but the platforms’ biases.

A movement emerged: Social media companies shouldn’t be allowed to police content on their sites! I mean, think about the First Amendment! Lawyers and constitutional experts, sticklers for such things, pointed out that the First Amendment applied to efforts by the government to censor speech, not of private companies. In fact, they added, forcing Twitter to host, say, anti-gay content was a form of governmental imposition on Twitter.

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By now, there’s a wide partisan divide on how people understand the application of the First Amendment to social-media companies. In polling released by the Annenberg Public Policy Center of the University of Pennsylvania last week, Republicans were much more likely than Democrats to say that the First Amendment mandated that Facebook not moderate content.

As has happened so often in recent years, Republican politicians have rushed to capitalize on their base’s misapprehension. In Texas and Florida, for example, state legislators passed policies limiting companies’ ability to censor content. The ambitious Republican governors in those states enthusiastically signed the bills into law.

In May, the 11th Circuit Court of Appeals determined that Florida’s law was unconstitutional, a finding that didn’t surprise most legal observers. The Supreme Court soon after put a hold on Texas’s law while it legal challenges moved forward.

But Texas, unlike Florida, got a hearing in the 5th Circuit. Last week, it released its decision on a lawsuit seeking to block Texas’s law: The law was right and the companies and legal experts were wrong.

“To the extent it chills anything, it chills censorship,” the opinion reads, with emphasis in the original. The section of the Texas law at issue, it continues, “might make censors think twice before removing speech from the Platforms in a viewpoint-discriminatory manner.”

A social media platform may not censor a user, a user’s expression, or a user’s ability to receive the expression of another person based on:

(1) the viewpoint of the user or another person;

(2) the viewpoint represented in the user’s expression or another person’s expression; or

(3) a user’s geographic location in this state or any part of this state.

The law applies only to social-media companies with more than 50 million monthly active users, a boundary that the opinion accepts as functionally distinguishing the platforms as significant.

The decision was written by Judge Andrew Stephen Oldham, nominated to the court by Trump. Trump’s broad effort to reshape the judiciary as more favorable to the political right was especially energetic on the 5th Circuit. The result was a bench that moved noticeably to the right.

Trump, of course, was an energetic advocate for bringing social media companies to heel, by which he meant fighting to keep his allies from facing any repercussions for their activity. He hosted a “summit” at the White House in 2019 centered on arguing that the companies were acting with bias. That was followed by regular excoriations against the platforms on the platforms themselves.

Trump and his allies were handed a political gift when in October 2020 both Twitter and Facebook limited the reach of a New York Post story about Joe Biden’s son Hunter. After being slammed for propagating Russia’s efforts to interfere in 2016, the platforms were wary about the dubiously provenanced narrative, but the action was immediately cast as a function of political bias. That was compounded when Trump’s dishonest claims about the election results were flagged or hidden and, ultimately, when he was booted from the platforms after his election falsehoods and entreaties to come to Washington powered the Capitol riot.

The 5th Circuit’s decision is not the final word; the case will likely head to the Supreme Court. But that simply reinforces how Trump’s nominations as president might help cement his aim of holding social-media companies to account. Justices Brett M. Kavanaugh and Amy Coney Barrett, both Trump nominees, sided with the majority in backing the emergency request to stay Texas’s law in May. That does not mean they will similarly oppose the state law if asked to weigh in on the fight.

Being booted from Twitter, though, opened a door that complicates the picture somewhat. After months of delay, Trump’s bespoke social-media site Truth Social began welcoming users. Frustrated about the rules of play at the existing platforms, Trump and his allies made their own sandbox. While the platform has struggled, Trump has leaned into it, posting regularly and encouraging his supporters to do so as well.

“Another one of our highest priorities under Republican Congress will be to stop left-wing censorship and to restore free speech in America, which we do not have,” Trump said at a rally in Ohio over the weekend in support of GOP congressional candidates. Then he went off-script a bit: “And go out and sign up now for Truth Social, which is doing great. It’s hot and it’s a hell of a lot better than Twitter will ever be. Twitter’s got a lot of headaches right now folks.”

Truth Social also has terms of service to which users agree. Those include stipulations that contributions must not be “obscene, lewd, lascivious, filthy, violent, harassing, libelous, slanderous, or otherwise objectionable” lest posters face “termination or suspension of your rights to use the Service and removal or deletion of your Contributions.” In other words, Truth Social retains the right to censor users for essentially any reason.

The Texas law doesn’t apply here; Truth Social doesn’t have 50 million monthly active users, though Trump is certainly hoping it soon will. But if the Supreme Court upholds the 5th Circuit’s decision, there’s nothing that would theoretically stop a state from passing a law like Texas’s that applies to Truth Social as well.

Trump and his allies would argue that the Texas law focuses on censorship based on viewpoints which, of course, is the argument they’ve made about Twitter and Facebook’s content-moderation policies all along. But, in practice, Truth Social reserves the right to remove content in the same way that Twitter does. It’s just that Twitter — in the spotlight for so long — has far more specific prohibitions in place. Both companies argue that users who break their rules can be booted which, legal experts have consistently argued, is perfectly within their rights.

What’s been argued by the right for years is that Twitter and Facebook’s moderation is often motivated not by the effects of a given post (harassment, incitement, misinformation, etc.) but, instead, by its ideology — something that has never been robustly demonstrated. But this is what the Texas law purports to correct, with the effect of loosening all moderation either directly or through the chilling effect on “censorship” that the court’s opinion celebrates.

Trump elevated this issue. He appointed the judges that might affix his position in the law. And, because he did so, he might find his private business flummoxed in its efforts to define the boundaries of its platform.

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