from the get-to-work dept
If the government passes a law that infringes on the public’s free speech rights, how should one challenge the law?
As recent events have shown, the answer is more complex than many realized.
A few years ago, both Texas and Florida passed “social media content moderation” laws, which would both limit how social media platforms could engage in any kind of moderation, while simultaneously demanding they explain their editorial decision-making. The laws were then challenged as unconstitutional under the First Amendment.
While three out of the four lower courts (two district courts and one of the two appeals courts) that heard the challenges found it to be patently obvious that the laws were unconstitutional incursions on free speech, the Supreme Court took a different approach to the cases. The Supreme Court effectively punted on the issue, while giving some clues about how the First Amendment should apply.
Specifically, the Supreme Court sent the challenges of both laws back to the lower courts, saying that since both challenges — brought by the trade groups NetChoice and CCIA — were presented as “facial challenges,” it required a different analysis than any of the lower courts had engaged in.
A “facial challenge” is one where the plaintiffs are saying, “yo, this entire law is clearly unconstitutional.” An alternative approach would be an “as applied challenge,” in which case you effectively have to wait until one of the states tried to use the law against a social media platform. Then you can respond and say “see? this violates my rights and therefore is unconstitutional!”
The Supreme Court said that if something is a facial challenge, then the courts must first do a convoluted analysis of every possible way the law could be applied to see if there are some parts of applications of the law that might be constitutional.
That said, the Supreme Court’s majority reason still took the Fifth Circuit to task, highlighting how totally blinkered and disconnected from the clear meaning and historical precedents its analysis of the First Amendment was. Over and over again, the Supreme Court dinged Texas’ law as pretty obviously unconstitutional. Here’s just one snippet of many:
Indeed, the Supreme Court noted that it can already see that the Fifth Circuit is on the wrong track, even as it was sending the case back over the procedural issues required for a facial challenge:
But, either way, the case has gone back to the Fifth Circuit, and it is now sending the case back to the lower court, with the instructions that the trade groups are going to have to argue every single point as to why the law should be considered unconstitutional.
So, basically, get ready for a ridiculously long and involved process for challenging the law and takes a swipe at the district court in the process.
There is plenty of busywork for all involved:
Separately, there’s the question about the transparency and explanatory parts of the law. Incredibly, the ruling says that the lower court has to explore whether or not being required to explain your editorial decisions is a First Amendment-violating burden:
The one interesting tidbit here is the role that ExTwitter plays in all of this. Already, the company has shown that while it is grudgingly complying with the EU DSA’s requirements to report all moderation activity, it’s not doing so happily. Given the nature of the Fifth Circuit (and this panel of judges in particular), it would certainly be interesting to have Elon actually highlight how burdensome the law is on his platform.
Remember, the law at issue, HB 20, was passed under the (false) belief that “big social media companies” were unfairly moderating to silence conservatives. The entire point of the law was to force such companies to host conservative speech (including extremist, pro-Nazi speech). The “explanations” portion of the law was basically to force the companies to reveal any time they took actions against such speech so that people could complain.
But now that ExTwitter is controlled by a friend — though one who is frequently complaining about excessive government regulation — it would be quite interesting if he gets dragged into this lawsuit and participates by explaining just how problematic the law is in a way that even Judge Andrew Oldham (who seems happy to rule whichever way makes Donald Trump happiest) might even realize that the law is bad.
Either way, for now, as the case goes back to the district court, NetChoice and CCIA will have an awful lot of work to do, for two groups that are already incredibly overburdened in trying to protect the open internet.
Filed Under: 1st amendment, 5th circuit, andrew oldham, facial challenge, hb20, moody v. netchoice, netchoice v. paxton, texas
from the if-the-mind-can-conceive-it,-these-people-will-believe-it dept
The narrative for years has been that social media companies — most of them headquartered in California — have it in for conservatives. While the real problem tends to be actual Nazis, conservatives who feel their bigoted views have been “censored” continue to pretend West Coast liberals and the Biden Administration are to blame for private companies showing them the exit.
In 2020, Mark Zuckerberg decided the people talking out of their asses must be right. Meta formed an oversight board of sorts that would backstop moderation decisions, allowing an even smaller group of people to decide whether the algorithms or hundreds of other human moderators made the right call when taking down content.
Here’s Mike Masnick’s original coverage of the new Oversight Board, which seemed to be the subject of hate simply because Facebook is almost always the subject of hate.
As was noted in that post, it was difficult to see what impact these outsiders might have on the whole of Facebook moderation. A social media site that deals with hundreds of thousands of posts every minute was unlikely to be guided, much less reformed, by bringing in four people to oversee a job thousands of others were already doing.
And the new board itself noted it would only handle an extremely small subset of complaints about content moderation, which suggested its influence on moderation would only be noticeable to the people who overrode previous Facebook moderation decisions.
That’s where we are now. Michael McConnell is making sure everyone knows this board had a hand in restoring some political content that was previously declared to be in violation of Facebook’s policies. Here’s the meat of that decision, as delivered by the ‘Facebook Supreme Court’ itself.
Now, this would mostly be a non-story if McConnell hadn’t approached conservative-leaning outlets like the New York Post and [cough] Volokh Conspiracy to make sure “conservatives” knew how hard McConnell and his fellow board members were working to ensure their views weren’t “censored.”
Of course, this statement can’t be found directly on McConnell’s Hoover Institute page. Instead, he links to the articles quoting him at length. Eugene Volokh’s quotation of McConnell appears to contain the entirety of his self-congratulatory message. And it’s hilarious, although I have to assume McConnell released it with the intent of it being taken very seriously.
This is direct from the mouth of one of the people staffing Meta’s moderation Oversight Board — one who’s completely convinced social media services are biased against “conservatives.” But all he brings to the argument is his own bias, which is not only “conservative,” but entirely of the confirmational variety. Enjoy!
In the hands of a more rational person, the lack of good data would suggest more research is needed and that it would be irresponsible to draw conclusions from this lack of evidence.
But board member/guy who thinks he doing right by the Right McConnell has decided the lack of evidence proves something and that assumption will remain in place until when (but more likely, if) he’s able to find the data that supports his presuppositions.
Most of the rest of his statement explains why so few moderation complaints have been handled by the Oversight Board. And, again, McConnell presents presuppositions without the “good data” he needs to support these assertions.
First, he claims Meta does actually respond to complaints from supposedly “censored” conservatives.
But that’s not good enough for McConnell because it’s not fast enough.
The problems are solved, but not quickly enough to make people (falsely) crying “censorship” happy. His other theory is that his fellow conservatives view protesting content moderation decisions as pointless, assuming (perhaps correctly in some cases) their particular complaints won’t be considered important enough to be handled in a timely fashion, if they’re ever handled at all.
Nonetheless, McConnell says the review board is a good thing (for “people of all political stripes,” even though he’s obviously notified his fellow conservatives of this effort first). It can take cases referred to it and handle them more quickly than Meta’s existing moderation team. Of course, the flip side of this is that the Oversight Board can pick and choose which complaints it wishes to handle. And if McConnell thinks this won’t result in more bias, rather than less, it’s only because he’s clearly willing to get high on his own supply.
Companies: meta
from the ctrl-alt-speech dept
Ctrl-Alt-Speech is a weekly podcast about the latest news in online speech, from Mike Masnick and Everything in Moderation‘s Ben Whitelaw.
Subscribe now on Apple Podcasts, Overcast, Spotify, Pocket Casts, YouTube, or your podcast app of choice — or go straight to the RSS feed.
In this week’s round-up of the latest news in online speech, content moderation and internet regulation, Mike and Ben cover:
- X Is a White-Supremacist Site (The Atlantic)
- Papers, Please? The Republican Plan to Wall Off the Internet (Tech Policy Press)
- The government plans to ban under-16s from social media platforms. Here’s what we know so far (ABC Australia)
This episode is brought to you with financial support from the Future of Online Trust & Safety Fund.
from the none-of-this-makes-sense dept
If you’ve followed along with our coverage on the hit video game Palworld, developed by Pocketpair, you will know that Nintendo and the Pokémon Co. has sued Pocketpair for patent infringement. Prior to the suit, there had been a ton of speculation that a lawsuit would be filed, but that it would be a copyright infringement suit. That was because there was a clear inspirational element in Palworld harkening back to Pokémon properties, though we also argued that no direct copying had occurred, only concepts and ideas repurposed. For that reason, I was excited that any copyright suit would serve as a demonstration of the idea/expression dichotomy in copyright law. And I generally believed that such a suit would be filed, given the overtly litigious history of both Nintendo and The Pokémon Co.
Instead we got the patent infringement lawsuit. Speculation began immediately as to what patent or patents would be at the heart of that suit. Generally, said speculation landed on a parent and several divisional patents that involve throwing an object at an on-screen character or creature in a video game in order to capture it. That itself was somewhat perplexing, as games that are older than Pokémon have had similar mechanics to that in the past.
But now we have confirmation that that speculation was mostly correct.
I’ll restate what I said in the previous post about these patents. These patents cover broad ideas. It’s a wonder to me why those patents were ever granted in the first place. The paperwork covering them, though rife with pretty diagrams and pictures, doesn’t exactly outline the sort of inventive content I was expecting. Instead, they appear to cover concepts of game mechanics, as though Nintendo or The Pokémon Co. could gobble up the right to use them in video games. The last of these patents in the quote above is perhaps the best example of this.
But it gets even starnger after that.
All of this for roughly $66,000? I’d have to think that any such award would be eaten into heavily by whatever time and monetary investment these two companies have made into this lawsuit. What can explain the desire by Nintendo and The Pokémon Co. to move forward with this suit when there is so little on the line?
The best I can come up with is that both of these companies just can’t help themselves when it comes to intellectual property. They seem to be more interested in getting their pound, or perhaps ounce, of flesh than making any sort of sound business decisions.