Everything Is Bigger In Texas, Even Debates About Content Moderation On Social Media

Are social media the saviors or saboteurs of free speech?

A few days ago, the U.S. Court of Appeals for the Fifth Circuit (which covers Louisiana, Mississippi and Texas) issued its decision in NetChoice v. Paxton. NetChoice, a lobby for the tech industry that advocates for freedom of enterprise and freedom of expression on the Internet, had filed a lawsuit against Ken Paxton, the Texas attorney general, in order to block the implementation of H.B. 20, a law adopted by the State of Texas in September 2021.

This law stipulates, among other things, that social media platforms with more than 50 million users cannot censor (i.e. delete or hide) content that they deem inappropriate. Thus, the replay of racist killings filmed by murderers, the promotion of child pornography videos or the publication of harassing messages can no longer be prevented by the largest digital platforms. The law also requires them to make public detailed reports on their content moderation policies, a provision that we can only support.

The U.S. Court of Appeals for the Fifth Circuit has upheld the constitutionality of this law. While NetChoice had argued that limiting the editorial latitude of social media went against the First Amendment of the U.S. Constitution on freedom of expression, the judges considered that the Texas law, far from hindering this freedom, “chills censorship.” In other words, this law means that any citizen of Louisiana, Mississippi or Texas could sue a social media company if they consider that it has censored a content they published on its platform. This is therefore a license to extremism of all kinds and a fundamental challenge to Section 230 of the U.S. Communications Decency Act.

Since 1996, it has protected digital services from liability for content posted by Internet users on their platforms. This provision is even more permissive than the First Amendment of the U.S. Constitution on freedom of expression, which does have some restrictions¹ on, for example, incitement to imminent illegal acts, making “real threats” or infringing intellectual property. Section 230 has played a key role in the creation of an Internet where freedom of expression knows no other limits than those imposed by the companies concerned. Indeed, this is the second major provision of section 230: It empowers digital companies to police the content published on their platforms to the extent that they can. This prescription was intended to compensate for the fact that, until now, those who tried to moderate the content posted online by Internet users were more likely to be held criminally liable than those who completely washed their hands of it. Digital companies thus benefit from both total immunity from the law and the ability to impose their own rules on their platforms. The only change to this law came in 2018 when digital services were made more accountable for identifying and removing content related to sex trafficking².

Those provisions are eliminated by H.B. 20. Beyond the fact that it would be impossible for the social media companies concerned to maintain two versions of their respective platforms – one with content moderation in almost all U.S. states and one without content moderation in Louisiana, Mississippi, and Texas – this law brings the debate about the implementation of freedom of expression on the Internet to the forefront. The legal debate is far from over. In the coming weeks, the Supreme Court will consider two major cases (Gonzalez v. Google and Twitter v. Taamneh) concerning online freedom of expression: They deal with the question of the legal responsibility of digital companies with regard to what Internet users post on their platforms and what their algorithms show to their users.

As I mentioned above, the First Amendment to the U.S. Constitution is extremely permissive. The justification for near-absolute freedom of speech was never better expressed than in the argument written in 1927 by U.S. Supreme Court Justice Louis Brandeis:

“Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.“

In other words, the remedy for dangerous public expression is not government-imposed silence but more free speech, because free speech is the key to citizen engagement in the political life of their country. Louis Brandeis’ argument was related to Whitney v. California. In its decision, the Supreme Court upheld the punishment of a California woman, Charlotte Anita Whitney, who had been convicted in state court of helping to form the American Communist Party, which taught its members how to overthrow the government by violence. The Supreme Court decision affirmed that the state, in the exercise of its police power, had the right to punish an abuse of free speech in cases of “utterances inimical to the public welfare, tending to incite crime, disturb the public peace, or endanger the foundations of organized government and threaten its overthrow.”

This case is famous for Louis Brandeis’ argument that linked freedom of speech to democracy: He argued that citizens have a duty to participate in the political process and that, in order to do so, they must have unlimited freedom of speech. Otherwise, they could only participate in the political debate by promoting the views of the ruling majority. After the Supreme Court decision, Charlotte Anita Whitney was pardoned by the governor of California on the basis of Louis Brandeis’ reasoning, even though she was facing a sentence of one to fourteen years in prison. And freedom of speech was enshrined in several subsequent U.S. Supreme Court decisions in accordance with the First Amendment to the Constitution.

At a time when the United States is threatened by the rise of a fascism embodied by – but not reducible to – Donald Trump, any debate about free speech is particularly important. My position on this issue is based on two ideas.

First, I believe in American-style freedom of speech, that is, with a minimum number of restrictions. Freedom of expression cannot be divided; it cannot be negotiated. As soon as we frame freedom of expression, we give an institution the exorbitant responsibility of limiting our thoughts. Freedom of expression is not the freedom to say what the majority of the moment – represented by said institution – agrees with. Freedom of expression cannot be the manifestation of a consensus. Otherwise, it is a social norm. Freedom of expression and consensus are inherently antithetical.

Secondly, the biggest problem posed by social media platforms, more than freedom of speech, is freedom of reach. This distinction, made by Tristan Harris³, co-founder and executive director of the Center for Humane Technology, highlights the role of digital platforms in promoting the most dangerous opinions for Society. It doesn’t shock me that an outrageous point of view is expressed on Facebook, Twitter, or YouTube; it revolts me that it benefits from the algorithmic virality of those echo chambers, which is consubstantial to their monetization model. In truth, what is at stake is the operating model of social media companies, which relies on the promotion of sensational, and therefore often degrading, content to capture and keep the emotional attention of Internet users.

Beyond its obvious political motivations to favor the public expression of the extreme right, the Texas H.B. 20 law has the only merit of bringing this contradiction to its fullest manifestation: The only way for the largest social media to apply it without further destroying the American Society is to revise their monetization mechanism so that the most scandalous contents are not the most visible.

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¹ Defined by the Supreme Court in several successive decisions.
² This is the “Allow States And Victims To Fight Online Sex Trafficking Act.”
³ “How A Handful Of Tech Companies Control Billions Of Minds Every Day,” TED, 2017.