Policy

A judge was sure Twitter isn’t a website. Now tech law could get messy.

Three federal appeals court judges seemed to struggle with basic issues while deciding whether Texas' censorship ban should be allowed to proceed.

Texas State Capitol

The judges in the Texas case seemingly resisted, or needed coaching on, the tech policy status quo when it came to Sec. 230.

Photo: Silver Ringvee/Unsplash

A panel of three federal appeals court judges on Monday seemed to struggle with basic tech concepts, and the result could signal an unexpected victory for conservative critics of the legal approach underpinning modern social media.

The judges presiding over the hearing in a New Orleans courtroom were weighing whether to clear the way for a Texas law that was designed to punish social media services for alleged anti-conservative bias.

At the urging of two Big Tech trade groups, a federal district court had previously paused the law, finding — as many courts have before — that government actions to force private actors to adopt a particular political view violate the Constitution’s First Amendment.

Texas then appealed its loss, leading to Monday’s hearing, during which one judge suggested that Twitter isn’t even a website and another wondered if phone companies have a First Amendment right to kick people off their services.

“Your clients are internet providers,” Judge Edith Jones told the lawyer for the plaintiffs, NetChoice and the Computer and Communications Industry Association. “They are not websites.”

The two trade groups that are suing represent Big Tech platforms such as Google, Meta and Twitter, which are not internet access providers the way that broadband companies such as Verizon or AT&T are.

Yet the confusion persisted. At one point, Judge Andrew Oldham suggested that if the tech platforms succeeded, it would allow phone companies to kick off users.

“Under your theory, could Verizon decide that they’re going to overhear every phone call … and when they hear speech they don’t like, they terminate the phone call?” Oldham said.

Telephone companies have for decades been designated as “common carriers,” meaning they are required by law to “carry” any and all phone content without discrimination. You can make a phone call to whomever you want, and the phone company can’t pick and choose on your behalf — and wiretap laws ordinarily (though not always) prevent telecom companies from listening in.

For a very brief time, internet service providers such as Comcast and Verizon were also considered common carriers. The Federal Communications Commission in 2015 adopted a rule classifying them as such, but it was short-lived. The commission then reversed that rule during the Trump administration, in 2017.

Oldham appeared to be sympathetic to Texas’ view that the platforms should also be treated as common carriers. Designating which services must serve all customers is complex and, as the 2015 and 2017 net neutrality fight highlighted, politically fraught. Historically, lawmakers and regulators have applied similar rules to telephone networks, electrical utilities and other businesses that may be subject to significant government regulation, have major market power, oversee vast infrastructure or hold themselves out equally to all comers.

By contrast, Congress explicitly created law, known as Section 230, allowing platforms to remove content without fear of lawsuits, and courts have repeatedly upheld companies’ rights to create and enforce terms of service that prohibit certain content and conduct. Tech and legal experts say treating platforms as common carriers would force companies to host the most vile speech.

Oldham also called it “extraordinary” that, under the current legal approach to social media companies, they could decide to ban liberal speech as well.

“Its new ownership … could just decide that we, the modern public square of Twitter … will have no pro-LGBT speech, period, full-stop, end-of-story?” Oldham said, seemingly gesturing to Elon Musk’s expected takeover of Twitter.

Oldham — who, like all the judges on the panel, was a Republican appointee — appeared to be echoing a view held by some conservatives about the Supreme Court’s description of social media in 2017 as sometimes amounting to “the modern public square.” Many on the right have suggested that the U.S. highest court endorsed a view that Americans have a right to access platforms like Twitter as a basic matter of free speech. But the phrase occured in a decision striking down government limits on access to social media, not company limits on users or content, and the Supreme Court has even more recently held that private actors get to make decisions over content even when they face far more government regulation than social media.

The judges in the Texas case seemingly resisted, or needed coaching on, the tech policy status quo when it came to Sec. 230.

Jones appeared to confuse internet service providers (broadband and wireless companies) with interactive computer services more than once. The latter is a legal term of art, used in Sec. 230, that refers to the category of companies that includes social media platforms such as Twitter and Facebook. Sec. 230 immunizes such companies from legal responsibility for most content that users post, explicitly allowing them to take down or leave up content as they see fit.

Conservatives have often blamed these moderation powers for what they say are major social media companies’ efforts to silence right-wing figures and speech, making the provision a frequent target of Republican ire. These threats have come even as judges from all political orientations, up to the Supreme Court, have largely found the services’ rights to decide what speech goes up on — or comes down from — social media platforms derive from the First Amendment, not Sec. 230.

Sec. 230 does, however, deal with the distinct but related issue of how platforms should be treated in a lawsuit over users’ speech. The judges at Monday’s hearing may need to contend with Sec. 230 if they want to uphold the Texas statute, which allows for the attorney general and users to sue when platforms “censor” users.

The judges’ skepticism of the platforms’ position and claims about tech policy law were unusual, but don’t necessarily signal a particular outcome. Probing questions are the point of hearings, and the judges also suggested some issues with Texas’ position. Jones in particular seemed to doubt the basis for the state’s claim that the social media services could be treated as common carriers.

If the panel does decide to overrule the lower court’s injunction and allow the law to proceed, however, the tech companies have appeal options or could eventually pursue a trial. An ultimate decision endorsing Texas law, though, could set the approach of the federal appeals court apart from those of other courts in the U.S. — a phenomenon known as a circuit split that makes it much more likely the Supreme Court will intervene.

Policy

How 'Zuck Bucks' saved the 2020 election — and fueled the Big Lie

The true story of how Mark Zuckerberg and Priscilla Chan’s $419 million donation became the 2020 election’s most enduring conspiracy theory.

Mark Zuckerberg is smack in the center of one of the 2020 election’s multitudinous conspiracies.

Illustration: Mike McQuade; Photos: Getty Images

If Mark Zuckerberg could have imagined the worst possible outcome of his decision to insert himself into the 2020 election, it might have looked something like the scene that unfolded inside Mar-a-Lago on a steamy evening in early April.

There in a gilded ballroom-turned-theater, MAGA world icons including Kellyanne Conway, Corey Lewandowski, Hope Hicks and former president Donald Trump himself were gathered for the premiere of “Rigged: The Zuckerberg Funded Plot to Defeat Donald Trump.”

Keep Reading Show less
Issie Lapowsky

Issie Lapowsky ( @issielapowsky) is Protocol's chief correspondent, covering the intersection of technology, politics, and national affairs. She also oversees Protocol's fellowship program. Previously, she was a senior writer at Wired, where she covered the 2016 election and the Facebook beat in its aftermath. Prior to that, Issie worked as a staff writer for Inc. magazine, writing about small business and entrepreneurship. She has also worked as an on-air contributor for CBS News and taught a graduate-level course at New York University's Center for Publishing on how tech giants have affected publishing.

Sponsored Content

Why the digital transformation of industries is creating a more sustainable future

Qualcomm’s chief sustainability officer Angela Baker on how companies can view going “digital” as a way not only toward growth, as laid out in a recent report, but also toward establishing and meeting environmental, social and governance goals.

Three letters dominate business practice at present: ESG, or environmental, social and governance goals. The number of mentions of the environment in financial earnings has doubled in the last five years, according to GlobalData: 600,000 companies mentioned the term in their annual or quarterly results last year.

But meeting those ESG goals can be a challenge — one that businesses can’t and shouldn’t take lightly. Ahead of an exclusive fireside chat at Davos, Angela Baker, chief sustainability officer at Qualcomm, sat down with Protocol to speak about how best to achieve those targets and how Qualcomm thinks about its own sustainability strategy, net zero commitment, other ESG targets and more.

Keep Reading Show less
Chris Stokel-Walker

Chris Stokel-Walker is a freelance technology and culture journalist and author of "YouTubers: How YouTube Shook Up TV and Created a New Generation of Stars." His work has been published in The New York Times, The Guardian and Wired.

Fintech

From frenzy to fear: Trading apps grapple with anxious investors

After riding the stock-trading wave last year, trading apps like Robinhood have disenchanted customers and jittery investors.

Retail stock trading is still an attractive business, as shown by the news that crypto exchange FTX is dipping its toes in the market by letting some U.S. customers trade stocks.

Photo: Lam Yik/Bloomberg via Getty Images

For a brief moment, last year’s GameStop craze made buying and selling stocks cool, even exciting, for a new generation of young investors. Now, that frenzy has turned to fear.

Robinhood CEO Vlad Tenev pointed to “a challenging macro environment” marked by rising prices and interest rates and a slumping market in a call with analysts explaining his company’s lackluster results. The downturn, he said, was something “most of our customers have never experienced in their lifetimes.”

Keep Reading Show less
Benjamin Pimentel

Benjamin Pimentel ( @benpimentel) covers crypto and fintech from San Francisco. He has reported on many of the biggest tech stories over the past 20 years for the San Francisco Chronicle, Dow Jones MarketWatch and Business Insider, from the dot-com crash, the rise of cloud computing, social networking and AI to the impact of the Great Recession and the COVID crisis on Silicon Valley and beyond. He can be reached at bpimentel@protocol.com or via Google Voice at (925) 307-9342.

Enterprise

Broadcom is reportedly in talks to acquire VMware

It hasn't been long since it left the ownership of Dell Technologies.

Photo: Yichuan Cao/NurPhoto via Getty Images

Broadcom is said to be in discussions with VMware to buy the cloud computing company for as much as $50 billion.

Keep Reading Show less
Jamie Condliffe

Jamie Condliffe ( @jme_c) is the executive editor at Protocol, based in London. Prior to joining Protocol in 2019, he worked on the business desk at The New York Times, where he edited the DealBook newsletter and wrote Bits, the weekly tech newsletter. He has previously worked at MIT Technology Review, Gizmodo, and New Scientist, and has held lectureships at the University of Oxford and Imperial College London. He also holds a doctorate in engineering from the University of Oxford.

Podcasts

Should startups be scared?

Stock market turmoil is making VCs skittish. Could now be the best time to start a company?

Dark times could be ahead for startups.

Photo by Startaê Team on Unsplash

This week, we break down why Elon Musk is tweeting about the S&P 500's ESG rankings — and why he might be right to be mad. Then we discuss how tech companies are failing to prevent mass shootings, and why the new Texas social media law might make it more difficult for platforms to be proactive.

Then Protocol's Biz Carson, author of the weekly VC newsletter Pipeline, joins us to explain the state of venture capital amidst plunging stocks and declining revenues. Should founders start panicking? The answer might surprise you.

Keep Reading Show less
Caitlin McGarry

Caitlin McGarry is the news editor at Protocol.

Latest Stories
Bulletins