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We Could Soon Open a Pandora’s Box of Impossible Speech Laws

Photo: Win McNamee (Getty Images)

This week, the Supreme Court is hearing two cases that could upend the way we’ve come to understand freedom of speech on the internet. Both Gonzalez v. Google and Twitter v. Taamneh ask the court to reconsider how the law interprets Section 230, a regulation that protects companies from legal liability for user-generated content. Gizmodo will be running a series of pieces about the past, present, and future of online speech.

The future of expression on social media may depend on how the Supreme Court decides to rule on a pair of hastily thrown together Texas and Florida “anti-censorship” laws crafted, in part, as revenge for various platforms banning former president Donald Trump. When the Supreme Court hears arguments for or against the Texas law later this year, however, it will be ruling on much more than just one state’s laws. The rulings, which will revolve around a core First Amendment argument, could set off a legal arms race between states all eager to flex their muscles over what content and speech social media companies can, or can’t host.

Experts told Gizmodo that more than two dozen other states from both sides of the political aisle are hard at work drafting social media legislation which could become law if the Supreme Court rules in favor of Texas. If that happens, social media platforms could face an “unworkable and ridiculous” reality where Facebook or Twitter may be legally compelled to ban content in one state but then potentially face a lawsuit for not removing the exact same piece of content in neighboring states. States could purposely pass conflicting legislation that makes hosting and moderating online speech so ridiculously untenable some platforms may simply choose to bail from certain markets entirely. In other scenarios, experts warned dozens of state-specific content laws could incentivize social media firms to crank their already liberal approach to tracking users’ geolocation up to eleven simply so they can try and maintain compliance in a jungle of conflicting laws.

“It would be an exaggeration to say the entire internet is at stake, but it’s not an exaggeration to say the way we engage with the internet is 100% on the table,” NetChoice counsel Chris Marchese told Gizmodo.

NetChoice, a tech-centric trade group that counts Amazon, Meta, and Google amongst its “associate members,” has been on the front line in a legal battle attempting to squash the Texas and Florida laws. If the Supreme Court were to rule in Texas’ favor, Marchese said, it would basically give a green light to government control of online speech. Social media platforms could, in effect, then be prohibited from taking down some of the vilest content lurking on the internet. John Morris, a principal focused on internet policy and advocacy at the Internet Society, warned day to day online experiences for regular users could turn into a chaotic swamp through which few users would want to trudge. It could also make an already divided internet even worse.

“For users, the covered platforms would likely become much more unruly, which would likely drive some users away from the platforms to smaller platforms that are not covered by the laws,” Morris said in an interview with Gizmodo. “This in turn would undermine a core benefit of the Internet—that people can engage with a huge diversity of other people, around the world.”

“It’s not clear these laws can even operate in the real world,” Marchese added. “It would be a disaster.”

What Are the Texas and Florida Laws and Where Do They Stand?

Though the specifics of the Texas and Florida laws differ, online speech experts that Gizmodo spoke with said they both question a core First Amendment principle: Do private social media companies have the right to select what content and which speakers they want to support and promote?

As the laws are currently written, both Texas and Florida would prevent social media platforms from banning users’ posts based on their political views, something Republican lawmakers have creatively called “viewpoint discrimination.” In Florida’s case, social media platforms would be prevented from deleting or limiting the reach of posts from politicians running for office. The Texas law goes even further. It effectively prevents platforms from moderating any content on a feed based on political viewpoints, even heinous ones that brush right up against the line of legality.

Both of the state’s arguments rely on classifying large social media platforms as “common carriers.” According to the Texas and Florida bills, social media platforms aren’t simply websites you can hop between but, instead, irreplaceable “digital town squares.”

Experts told Gizmodo that the view, despite its growing popularity, is divorced from reality.

“They [social media platforms] are not common carriers and they never have been,” Electronic Frontier Foundation attorney and Stanton Legal Fellow Mukund Rathi told Gizmodo. Rathi said online platforms have always made choices about which users get to speak, whereas common carriers, by definition, need to serve everyone.

“State legislators can’t just wave around the term common carrier and use that to justify what they are doing,” Rathi said. “Since the beginning of the internet, people have complained about getting banned, but platforms have the right to do that.”

Image for article titled We Could Soon Open a Pandora’s Box of Impossible Speech Laws

Photo: Octavio Jones (Getty Images)

A federal appeals court dealt a huge blow to the Florida bill last year after a three-judge panel unanimously declared it unconstitutional. The Texas bill, on the other hand, is more complicated. Though a federal judge in Texas blocked the legislation on First Amendment grounds immediately after it was signed by Governor Greg Abbott, it was eventually reinstated by a federal appeals court last May. The Supreme Court actually already placed an injunction on the law last year while it made its way through the courts. Now, it could have another shot at taking effect.

U.S. Naval Academy Cybersecurity professor and online speech expert Jeff Kosseff told Gizmodo that a split decision in the courts makes it likely the Texas law will make its way back to the Supreme Court.

“The Supreme Court does not like to have different laws of the land depending on where you are located in the United States,” Kosseff said. “And that’s what we have right now.”

And despite growing interest in the cases from some justices, the Supreme Court last month punted on hearing the case and instead asked the Biden administration to weigh in. Kosseff said it’s possible we may have to wait until 2024, just months before the next presidential election, for a final ruling.

Dozens of States Eager to Join the Censorship Bandwagon

The First Amendment questions raised in the Texas and Florida cases are being copied, in some cases, word for word, in dozens of others states spanning the political spectrum. One expert speaking with Gizmodo estimated the number of individual pieces of social media legislation climbing their way through state houses may be approaching triple digits. On the right, states like Ohio, Georgia, and Mississippi have followed close behind Texas and Florida’s footstep, with each grasping onto the “common carrier” argument and running with it.

GOP bills may stand out here for their sloppiness and often eye-roll-inducing culture war language, but multiple experts told Gizmodo it’s wrong to think these types of social media speech laws could only come from one political party. Generally speaking, while Republican laws seek to compel sites to leave up certain shitty content or asshole politicians, Democratically proposed social media speech legislation typically demands sites remove speech or else face lawsuits or regulation.

The best example of that scenario can be seen in the current legal tussling over California’s recently passed Age-Appropriate Design Code Act set to take effect in 2024. The law, based on similar protections, would force social media firms to turn young users’ privacy settings on high by default and require age verification and other features intended to make the platforms safer spaces for young users. Opponents say, good intentions aside, it still falls victim to many of the same fundamental First Amendment issues at play in the Texas and Florida laws, and could have unintended consequences for other state laws down the line if it’s allowed to take effect. NetChoice sued to block the law in December, arguing the law violates the First Amendment and could dramatically swell government control over online speech by “using children’s privacy as a front.”

“AB 2733 isn’t actually focused on privacy; it’s focused on regulating online content,” NetChoice Vice President and General Counsel Carl Szabo, said in a statement. “Following in the footsteps of Florida and Texas, California is trampling on the First Amendment to gain more control over speech online.”

Platforms Face a ‘Logistical Nightmare’

Image for article titled We Could Soon Open a Pandora’s Box of Impossible Speech Laws

Photo: Loren Elliott (Getty Images)

Experts speaking with Gizmodo said it’s possible the U.S. could find itself in an uncanny and extremely complicated near future where social media platforms are forced to navigate around a patchwork of varying, or in some cases, contradictory content laws. In this scenario, a Twitter user starting a long drive in Texas could theoretically be forced to endure vile Neo-Nazi content by the force of law only to have that same content be ruled illegal by the time they make it to California. That same complexity could apply to any number of states, which means platforms would be forced to haphazardly slap together potentially dozens of different versions of their products to maintain compliance and avoid lawsuits. Though technically possible, Center for Democracy and Technology Free Expression Project Deputy Director Caitlin Vogus said that would create a “logistical nightmare,” for policymakers and content moderators. That constantly moving target would almost guarantee a spike in content moderation errors which, in turn, could reinforce state lawmakers’ preconceived notions that platforms are censoring their viewpoints.

If platforms do decide to put their feet down and charge headfirst through the political morass, experts say they may have to engage in levels of user geolocation tracking that would make today’s privacy concerns look like a joke. Despite a growing public appetite for stronger data protection, Marchese of NetChoice said the platform under this new reality would feel compelled to track users constantly. Armed with that data, platforms could then geoblock their services from certain states, though most experts told Gizmodo that platforms likely don’t currently have the capacity to successfully do that at scale. Even if they did, that level of invasive tracking could actually end up running afoul of certain states’ data privacy laws.

“If data practices infringe on compliance with the law, then the law is literally saying you should not protect privacy,” Marchese said.

In a less dramatic scenario where new state speech laws are somewhat more consistent with one another, platforms may choose to simply comply with the laws that go the furthest nationwide. That means platforms may feel inclined to make the most extreme conservative anti-deplatforming rule their default approach simply because it’s the simplest and cheapest way to cover their bases. The closest analogy here presents itself in the long ripple effects of Europe’s GDPR and California’s privacy protection laws, which manage to set some meaningful standards around things like asking for consent before collecting cookies. Instead of a pop-up for cookies, however, social media users could potentially see pop-ups asking them to opt-in to receiving horrible content not allowed in a few states away.

Alternatively, platforms may just say screw it and stop offering service in certain states entirely. Ironically, Vogus said that exiting platforms from markets to avoid aggressive “free speech” laws would actually just lead to a reduction of overall speech online. Morris of the Internet Society told Gizmodo those U.S. users could potentially try to flock to smaller upstart platforms that don’t pass the censorship laws’ minimum users threshold, or potentially foreign firms outside the U.S.’s jurisdiction. In other words, goodbye Twitter and hello Truth Social and Vkontakte. 

If all of this sounds like something born out of an extremely annoying Franz Kafka book, it’s because it kinda is. That absurd nature of what could be on the horizon, according to Marchese, is all the more reason for the Supreme Court to strike down the Texas laws and avoid opening Pandora’s box in the first place.

“When you see how all this plays out in the real world, it seems so ridiculous that people discount it, but it’s precisely because it’s so ridiculous that you should be concerned about it,” Marchese said. “There’s no limit. If the Supreme Court upholds Texas there are no limits to what the states can do to the internet moving forward.”

More Freedom of Speech Week:

Will the Supreme Court End Social Media as We Know It This Week?

Supreme Court Justices Admit They Don’t Know Much About Social Media

I Changed My Mind About Section 230

Actually, Everyone Loves Censorship. Even You.

Bin Laden, Burglars, and Banks: The Supreme Court Considers Twitter’s Role in Terrorism

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