Is This the Beginning of the End of the Internet?Occasionally, something happens that is so blatantly and obviously misguided that trying to explain it rationally makes you sound ridiculous. Such is the case with the Fifth Circuit Court of Appeals’ recent ruling in NetChoice v. Paxton. Earlier this month, the court upheld a preposterous Texas law stating that online platforms with more than 50 million monthly active users in the United States no longer have First Amendment rights regarding their editorial decisions. Put another way, the law tells big social-media companies that they can’t moderate the content on their platforms. YouTube purging terrorist-recruitment videos? Illegal. Twitter removing a violent cell of neo-Nazis harassing people with death threats? Sorry, that’s censorship, according to Andy Oldham, a judge of the United States Court of Appeals and the former general counsel to Texas Governor Greg Abbott.A state compelling social-media companies to host all user content without restrictions isn’t merely, as the First Amendment litigation lawyer Ken White put it on Twitter, “the most angrily incoherent First Amendment decision I think I’ve ever read.” It’s also the type of ruling that threatens to blow up the architecture of the internet. To understand why requires some expertise in First Amendment law and content-moderation policy, and a grounding in what makes the internet a truly transformational technology. So I called up some legal and tech-policy experts and asked them to explain the Fifth Circuit ruling—and its consequences—to me as if I were a precocious 5-year-old with a strange interest in jurisprudence.Techdirt founder Mike Masnick, who has been writing for decades about the intersection of tech policy and civil liberties, told me that the ruling is “fractally wrong”—made up of so many layers of wrongness that, in order to fully comprehend its significance, “you must understand the historical wrongness before the legal wrongness, before you can get to the technical wrongness.” In theory, the ruling means that any state in the Fifth Circuit (such as Texas, Louisiana, and Mississippi) could “mandate that news organizations must cover certain politicians or certain other content” and even implies that “the state can now compel any speech it wants on private property.” The law would allow both the Texas attorney general and private citizens who do business in Texas to bring suit against the platforms if they feel their content was removed because of a specific viewpoint. Daphne Keller, the director of the Program on Platform Regulation at Stanford’s Cyber Policy Center, told me that such a law could amount to “a litigation DDoS [Denial of Service] attack, unleashing a wave of potentially frivolous and serious suits against the platforms.”To give me a sense of just how sweeping and nonsensical the law could be in practice, Masnick suggested that, under the logic of the ruling, it very well could be illegal to update Wikipedia in Texas, because any user attempt to add to a page could be deemed an act of censorship based on the viewpoint of that user (which the law forbids). The same could be true of chat platforms, including iMessage and Reddit, and perhaps also Discord, which is built on tens of thousands of private chat rooms run by private moderators. Enforcement at that scale is nearly impossible. This week, to demonstrate the absurdity of the law and stress test possible Texas enforcement, the subreddit r/PoliticalHumor mandated that every comment in the forum include the phrase “Greg Abbott is a little piss baby” or be deleted. “We realized what a ripe situation this is, so we’re going to flagrantly break this law,” a moderator of the subreddit wrote. “We like this Constitution thing. Seems like it has some good ideas.”Everyone I spoke with believes that the very future of how the internet works is at stake. Accordingly, this case is likely to head to the Supreme Court. Part of this fiasco touches on the debate around Section 230 of the Communications Decency Act, which, despite its political-lightning-rod status, makes it extremely clear that websites have editorial control. “Section 230 tells platforms, ‘You’re not the author of what people on your platform put up, but that doesn’t mean you can’t clean up your own yard and get rid of stuff you don’t like.’ That has served the internet very well,” Dan Novack, a First Amendment attorney, told me.
“A lot of people envision the First Amendment in this affirmative way, where it is about your right to say what you want to say,” Novack told me. “But the First Amendment is just as much about protecting your right to be silent. And it’s not just about speech but things adjacent to your speech—like what content you want to be associated or not associated with. This law and the conservative support of it shreds those notions into ribbons.”
The implications are terrifying and made all the worse by the language of Judge Oldham’s ruling. Perhaps the best example of this brazen obtuseness is Oldham’s argument about “the Platforms’ obsession with terrorists and Nazis,” concerns that he suggests are “fanciful” and “hypothetical.” Of course, such concerns are not hypothetical; they’re a central issue for any large-scale platform’s content-moderation team. In 2015, for example, the Brookings Institution issued a 68-page report titled “The ISIS Twitter census,” mapping the network of terrorist supporters flooding the platform. The report found that in 2014, there were at least 46,000 ISIS accounts on Twitter posting graphic violent content and using the platform to recruit and collect intelligence for the Islamic State.
I've argued here many time that dark free speech (deceit, lies, slanders, irrational emotional manipulation, flawed motivated reasoning, etc.) has been the single most potent weapon America's radical right has used, among other bad things, to divide and polarize society, foment irrational distrust, destroy respect for inconvenient truth and expertise, corrupt democracy and the rule of law, and attack civil liberties.
But maybe we are at a new point in the Republican Party's attack on democracy, secularism, civil liberties and the rule of law. Maybe equally or more effective tactics will come from subversion of federal courts by extremist radical right judges. Ex-president T**** publicly stated that judges are a core focus for him, and he acted that way while in office. T**** appointed the rotted judge here, Andy Oldham to the 5th circuit appeals court in 2018. Radical right Christian nationalist judges have subverted and dominate the US Supreme Court. That will very likely be the situation for some years to come.
For at least the next few years, more extremist rulings from T**** judges and other radical right Republicans on the federal bench can be expected to continue. The goal is to inflict serious damage to democracy, secularism, inconvenient facts and truths, civil liberties and the rule of law. It's not clear that our democracy and our rights can be defended when the attacks come from a subverted, anti-democratic federal judiciary. I cannot see any way to stop or blunt the damage that Republican federal judges already have and will continue to inflict. There are good reasons to believe these attacks on democracy and civil liberties by radical right extremists will continue.
Acknowledgment: Thanks to milo for bringing this article to my attention.
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