Bogus Fears of Censorship Could Spell the End of Content Moderation

Sep 23, 2022 9:00 AM

Bogus Fears of Censorship Could Spell the End of Content Moderation

Plus: The Supreme Court in cyberspace, what’s up with Web3, and ghost town resurrections.

Exterior of the Fifth Circuit Court of Appeals Building

Photograph: Rex Wholster/Getty Images

Hi, everyone. Glad to hear from Joe Biden that the pandemic is over. But who’s going to tell the coronavirus?

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The linguist George Lakoff is famous for his theory of “framing” in political speech. The words people use to describe an issue can end a debate even before the speechifying begins. “Framing is about getting language that fits your worldview,” he once explained. “The ideas are primary and the language carries those ideas, evokes those ideas.”

I thought about Lakoff when I read the US Court of Appeals for the Fifth Circuit’s ruling regarding the Texas legislature’s House Bill 20, signed by Governor Greg Abbott last year. The law limits how technology platforms can moderate speech, essentially banning companies like Meta, Google, and Twitter from removing or de-ranking content on the basis of the viewpoint it expresses. Two industry associations, NetChoice and the Computer & Communications Industry Association (CCIA), challenged the law, as they had similar legislation in Florida. A lot of complicated appeals and challenges ensued. In Florida, the courts blocked the law, and the state government is appealing to the Supreme Court. But after an appeals court ruling in Texas stopped the law, a higher court, the US Fifth Circuit, intervened, saying that it was constitutional and could be enforced. Then the Supreme Court stepped in. It prevented the law from taking effect, and asked the Fifth Circuit to reconsider its earlier decision.

The Fifth Circuit didn’t budge. Writing for a two-to-one majority last week, Judge Andrew Oldham—a Trump appointee whose previous post was general counsel for Texas governor Greg Abbott—produced a ruling that reads more like an Infowars dispatch than a reasoned decision. Near the top he rams a contemptuous stake in the ground: “Today,” he writes, “we reject the idea that corporations have a freewheeling First Amendment right to censor what people say.”

Okay, put aside the judge’s belief that a “freewheeling” use of a basic right is something unsavory. (Isn’t that what rights are for?) The key word here is “censor.” It’s the framing from hell. “Censorship” is the term that Republican legislators and pundits often use to describe ordinary content moderation—the act of a company choosing what kind of speech it wants users to see on its platform. Using that word is a political tactic, intended to cow platforms into allowing speech that violates their policies—things like Covid misinformation, hate speech, and election denial—that more often come from the right than the left. Indeed, the text of HB 20 adopts that terminology, saying that “a social media platform may not censor a user.” But this framing is bogus. Censorship is something that governments do, not private parties policing their own websites. “It’s Orwellian that the government says that private businesses’ exercise of editorial discretion is censorship,” says CCIA president Matt Schruers.

Nonetheless, Oldham locks in on the term as if it’s the only way to describe how private platforms determine how to maintain civility and safety. The words “censor” or “censorship” appear 143 times in his ruling. “The platforms are not newspapers,” he writes. “Their censorship is not speech.” Meanwhile, Oldham thinks it’s perfectly fine for the government to tell a private company what speech it can or cannot host—which sounds a lot like, you know, censorship. The kind that the First Amendment prohibits. The Fifth Circuit ruling means that the law will take effect on October 7, unless further legal rulings put it on hold.

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The authors of the Texas and Florida laws might say that they are only arguing for people to be allowed to express any views they want, on services that invite them to express themselves. The Texas law specifically outlaws what it calls viewpoint-based censorship. But viewpoints can encompass almost anything. Can platforms no longer “censor” Holocaust denial, a viewpoint that’s legal but not really the kind of thing that most people want to see on their social feeds or YouTube recommendations? Must Facebook, Twitter and YouTube end their ban on hardcore porn? Must they end restrictions on doxing? If the answer is yes, then the government is determining what legal content can or cannot be said on the platforms. That’s exactly what the First Amendment bans.

It’s not just those on the right who want to strike down platforms’ right to determine what speech they host. This week, the Journalism Competition and Preservation Act, sponsored by senator Amy Klobuchar, a Democrat from Minnesota, passed through the Judiciary Committee. The legislation is mostly about making platforms like Google and Meta pay news publishers for the privilege of linking to articles shared by users. What it has in common with the Texas and Florida legislation is a must-carry provision, forcing platforms to publish those links, whether they like it or not. (Mike Masnick of Techdirt has posted a masterful critique of this misguided legislation.) Though Klobuchar shrugged off criticism in a recent interview, her bill is another attack on the First Amendment, at least as it applies to how publishers and platforms determine what is proper content for their own sites.

The platforms are not blameless for this mess. Legal issues aside, they’ve poisoned the discussion by failing to match their growth and power with solutions to the admittedly knotty problem of moderating content. They say they are doing the best they can, but clearly they aren’t—the files leaked by Frances Haugen reveal that Meta generally ignored the objections of its own researchers who urged for better policies. Still, those platforms are entitled to First Amendment protection. And if they lose it, your newsfeed will be loaded with garbage. The effects won’t be limited to just major social platforms. “The Florida law would require Etsy to host political content,” says Carl Szabo, NetChoice’s general counsel. “This is an effort by politicians to seize control of speech on the internet.”

The final decision on the Texas bill will rest with the Supreme Court. Most legal observers, including the representatives of NetChoice and CCIA, believe that it will strike down the laws, with what seems like a no-brainer invocation of the First Amendment. But not everyone believes this. I was on a Zoom gathering with political operative Joe Trippi earlier this week, and asked him what he thought the Supreme Court might do in response to the Fifth Circuit ruling. “They would vote the same way,” he said. Trippi, like many of us, is wary of anything that comes before this ultra-activist, ultraconservative court.

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Indeed, from the May ruling that upheld the injunction to delay implementation of HB 20, we know that three justices think the Texas law is sufficiently plausible. Justice Samuel Alito dissented, joined by justices Thomas and Gorsuch. (Fun fact: Andrew Oldham—the one who’s not the sixth Rolling Stone—clerked for Alito.) Alito’s dissent claimed that he hadn’t formed a view on the “novel legal questions” involved (in Alito-speak, that means he’s made his mind up and he’s going to veer far right on this), but wanted to defer to Texas and let the law take effect before the whole court decides on the case. When and if the Supreme Court does consider the case, it looks like the three dissenters will support the Texas law. (And maybe the Florida law, too, as the cases might be consolidated.)

So what about the other two justices who typically vote with that trio? In this first go-round, Amy Coney Barrett and Brett Kavanaugh voted with the majority to send the case back to the Fifth Circuit. This would seem to indicate, but doesn’t mean for sure, that they agree the law tramples on the First Amendment. (The Supreme Court’s order came without comment from the majority.) Will they jump sides and join their conservative colleagues, unleashing online anarchy? We’ve been through too many “it can’t happen here” surprises to rule it out. The tip-off might come during oral arguments. If either of those justices pack their word clouds with “censorship,” it’s time to play Taps for the First Amendment.

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The Supreme Court has been wrestling with internet issues for decades now. But it was a novel subject for the court in March 1997, when the justices grappled with the constitutionality of the Computer Decency Act. Writing for Newsweek, I attended the oral arguments and reported on how the robed ones handled the challenging subject matter.

No one knew what to expect when the Supreme Court took its first shot at the new world of cyberspace last Wednesday, hearing arguments in a case that may well set parameters for free speech in the next century. But almost everyone agreed on one thing: The Supremes, at the average age of 62, would be aliens to the world of geekdom. "The one prediction I felt safe in making was that the phrase ‘CGI script' would never come up,'' says the ACLU's lead attorney, Chris Hansen, referring to an arcane software protocol that potentially gives websites a way to screen users to see if they are adults.

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So what was the first question posed by Justice Sandra Day O' Connor to Deputy Solicitor General Seth Waxman, less than three minutes into the historic session? “Mr. Waxman, does that technology require use of something called CGI?”

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Derek asks, “What do you think are the main pros and cons of Web3? I’m trying to keep an open mind about the merits of using blockchain technology to build a better internet, but I still don’t see it.”

Thanks, Derek. I’ve been trying to keep an open mind too! It’s difficult because of the messianic claims being made for Web3 by people whose motivation seems to be directing funds into their own crypto (and conventional) wallets. The whole movement is muddied by this gold-rush mentality, which emphasizes capital gains before articulating any actual benefits to the shift. Previous revolutions, like personal computing and Internet 1.0, were defined by the products, not just the returns. In 1982, you didn’t buy WordStar hoping that one day the $200 you spent for it would be worth $200,000. You bought it for its own utility as a word processor.

That said, a blockchain-based internet has promise. The original internet was built under open protocols that made it difficult to enforce security and trust. In theory at least, a blockchain can flip that script. The key question is whether a new class of innovative applications can provide enough value for people to adopt them not for their crypto, but for what they do. One positive development in bringing that vision closer is the success of The Merge, which will help make some of those applications more efficient and less damaging to the climate. It’s only a step, though. The best thing for Web3 would be to hose down those greed-heads holding conferences in Miami, and let the innovators rule.

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You can submit questions Write ASK LEVY in the subject line.

Bogus Fears of Censorship Could Spell the End of Content Moderation

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