Texas has joined Florida among the states with the largest school shootings in American history. Both states are governed by conservatives who insist the Second Amendment is sacrosanct.
But if either state took the First Amendment half that seriously, they wouldn’t be attacking the constitutional rights of social media sites to remove content that helps spark mass shootings.
The more people can watch live streams of these shootings, the more children will die. Almost all social media sites prohibit the distribution of such videos and try to stop their distribution as soon as possible. They also prohibit the glorification of these shootings, the denial that these tragedies ever happened, and the harassment of the families of the victims.
More blatantly, Alex Jones has spent a decade peddling the conspiracy theory that the Sandy Hook, Connecticut massacre was staged to justify the removal of American gun rights. Grieving parents there — and later in Parkland, Florida — were harassed for years by conspiracy theorists who insisted they must be ‘crisis actors’ working in the service of an infamous government plot to trample the rights of Americans. Some parents even received death threats and were forced into hiding.
The families of those killed in Uvalde, Texas should not have to endure the same abuse.
Yet under new laws enacted by Texas and Florida, social media sites could be sued for moderating all this content and banning those who share it. Both states claim they protect conservatives from “censorship”. In fact, their laws would give legal weapons to crackpots, like Alex Jones, who would inspire new massacres.
This week, a federal appeals court ruled that website operators have the same First Amendment rights to curate content as newspapers and parade organizers — and refused to allow the law to go into effect. Florida law. But two weeks ago, another federal court allowed the application of a similar Texas law without bothering to issue a legal opinion.
Last week, my organization, TechFreedom, was among 18 leading civil liberties groups that asked the Supreme Court to reinstate an order banning the Texas law, lest it open the floodgates of content ” lawful but dreadful”. The Court could grant the revision of the two laws this fall.
The two laws work a little differently, but with similar results.
Texas prohibits “censorship” based on point of view. If a shooter posted a video explaining his motives — as the racist Buffalo shooter did — a social media site could be sued for blocking him, even if it included live footage of the shooting. The glorification and denial of shootings by others clearly expresses a point of view, and therefore cannot be moderated.
Texas law excludes “incitement” to criminal activity, a category of speech that the Supreme Court has interpreted much narrower than most people realize. (No, “shouting fire in a crowded theater” would not qualify.) Texas also excludes “threats of violence,” but they must be “specific,” which most online harassment is not. The term “illegal expression” may be deleted, but this does not include live shooting videos, glorification of shooters or denial of shootings.
Florida prohibits the moderation of content posted by “journalism businesses” — including Jones’s Infowars and Gateway Pundit, another prominent provider of Sandy Hook and Parkland conspiracy theories — and candidates for public office. Florida also requires “consistency” in content moderation, which could prevent sites from moderating shooter-friendly content if they want to leave stories about that content. It further demands that users have the ability to see all “shadow banned” content, no matter how heinous. Florida law also provides an exception for the moderation of “obscenity,” a narrow category that essentially only includes child sexual abuse material.
“Alex Jones has spent a decade peddling the conspiracy theory that the Sandy Hook, Connecticut massacre was staged to justify stripping Americans’ gun rights.”
Alex Jones’ claims that Sandy Hook’s parents were “crisis actors” might well have been defamatory. But it takes years for courts to decide defamation cases – four years in this case. And even then, Jones only lost by default for defying multiple court orders. There’s simply no way for websites to predict what will be considered illegal – and they won’t risk being wrong in the face of stiff penalties.
What about Section 230? This 1996 federal law, drafted by a conservative Republican and approved by a nearly unanimous Congress, largely shielded websites from lawsuits for content moderation. But in recent years, conservatives have turned against the law, blaming it for “censorship”. In fact, Section 230 simply ensures that websites do not have to bear the enormous cost of arguing constitutional issues when curating the content they host.
Judge Clarence Thomas called on the Court to sharply limit the law’s protection for content moderation, something the Trump administration has also attempted through a regulatory executive order, and which the next Republican president will no doubt try again .
Today, courts are applying section 230(c)(1) to dismiss lawsuits seeking to hold websites responsible for decisions they make as publishers, including refusing to host content. According to Republicans’ reinterpretation of the law, websites would have to prove they acted in “good faith” under section 230(c)(2)(A). This is a very factual question that might require some in-depth discovery of the websites motivations, exactly the type of fishing expedition that Alex Jones wants.
Additionally, moderated content should be “lewd, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.” While the shooting of videos would be “excessively violent”, the Conservatives interpreted “otherwise objectionable” (intended as a broad catch-all) so narrowly that it would not cover the glorification of violence or misinformation about the shootings – without talk about white supremacist conspiracy theories about the “Great Replacement” who radicalized the Buffalo shooter. Thus, websites would face lengthy lawsuits for attempting to remove content that inspires copycat shooters.
The government simply does not have to dictate to private media companies what kind of speech they should make, as the Supreme Court decided long ago about newspapers. The same goes for social media sites, according to the judges who blocked the Florida law — all hard-nosed conservative intellectuals.
Legislating against content moderation can help populist “conservatives” inflame their base, but if the Supreme Court allows these laws to take effect, the price will be measured in the lives of children.