Policy

Social media’s legal foundation just crumbled in Texas. Here’s what’s next.

A federal appeals court decision is forcing social media to abandon the way it’s treated content for a quarter-century, and the experiment may run until the Supreme Court acts.

A folder of social media apps including Twitter, Instagram and Facebook open on a smartphone.

While HB 20 is in effect, Texas users can sue platforms like Facebook and Twitter if they get “censored” for their viewpoints.

Photo: Adem AY/Unsplash

The surprise Wednesday ruling by a panel of three federal appeals court judges allows Texas’ social media law to go into effect — and has led to panicked befuddlement among tech policy experts wondering how platforms could possibly comply, even if they wanted to, and what options the services have for challenging the ruling.

The judges ruled 2-1 that the law should be effective while they hear an appeal by two Big Tech trade groups of a district court injunction that initially put the measure on hold. The judges did not immediately publish their reasoning, but the move will force social media companies to face a legal environment that could threaten the core content bans, moderation practices and ranking algorithms that have allowed them to flourish since the 1990s.

While HB 20 is in effect, Texas users can sue platforms like Facebook and Twitter if they get “censored” for their viewpoints — a vague premise, designed by conservatives who claim that Big Tech unfairly silences them and down-ranks their content.

Until this week, industry observers widely expected the court to uphold a block on the law. In addition to the lower court’s injunction, a different federal court also paused a similar Florida law, finding that it violated the First Amendment in seeking to punish private companies for their views and treatment of content. Those decisions also echoed extensive Supreme Court precedent.

But instead, the Fifth Circuit judges appeared to struggle with basic tech concepts during a Monday hearing — including whether Twitter counts as a website — before issuing Wednesday’s startling decision.

Matt Schruers, the president of Computer & Communications Industry Association, one of the two groups that challenged the law, said in a statement that “no option is off the table” as far as challenging the ruling and the statute. A lawyer for NetChoice, the other plaintiff, tweeted that it would “absolutely be appealing.”

One option for the groups is to seek an en banc appeal — basically, a rehearing by a larger panel of judges in the same court, which is often viewed as the most conservative circuit in the U.S. But the decision on Wednesday may signal that even that larger group would come to a similar conclusion, said David Greene, civil liberties director at the Electronic Frontier Foundation.

The EFF supported the platforms’ suit in a brief. The law is unconstitutional, Greene said. “My hope is that at some point, a court will agree with that, and strike [the law] down,” Greene told Protocol. “But I think that’s only going to happen at the Supreme Court level.”

There are two ways the companies could end up in the Supreme Court: They could skip the en banc hearing and start by appealing to the Supreme Court directly, or they could try to bring the case there after another loss in the appeals court. But the majority of the nine justices might not see a reason to jump in at this stage, and could instead hold for a time when the companies are actually facing lawsuits permitted by the Texas statute.

Alternatively, experts said, the high court would be more likely to get involved if the 11th Circuit court upholds the existing block on the Florida law and the Supreme Court can resolve the differences between the two approaches.

Any decision the Supreme Court makes would depend greatly on the appeals courts’ framing of the issues, Greene said. If the court’s conservative majority wants to approve Texas’ law, however, it would likely have to contend with precedent that five conservative justices signed on to as recently as 2019, which affirmed the First Amendment rights of private actors to control content they carry as they see fit.

In the meantime, lawsuits could kick off any minute now as aggrieved users — or the state, which can act on their behalf — claim they’ve been targeted for their viewpoints and seek to force services restore their content and accounts, or even win some sort of prime placement on social media feeds. Such lawsuits were already common, despite failing repeatedly due to sites' Section 230 protections, but if those suits become successful, even the most basic content moderation models could become untenable. Platforms have worried that would, in turn, force a spike of hate speech and dangerous misinformation on services that host user posts, or prompt the return of chronological feeds, which tend to be spammy and unpopular.

Medium-sized sites and services that don’t have Meta-sized budgets to handle litigation — but still have the 50 million monthly active users that make them qualify under Texas’ law — would likely struggle in particular with the new legal regime.

“It’s so hard to know what the law means and … whether you can change your entire product to try [to] comply with the law,” Greene said. “That’s really hard.”

In addition, an early suggestion — that companies could simply pull out of Texas — might be impractical and politically disastrous, said Corbin Barthold, director of Appellate Litigation at the libertarian group TechFreedom, which also supported the challenge to the law.

“Can you imagine the loudmouths on Capitol Hill, the hell they would raise?" Barthold said. Companies will probably feel that “the nuclear option is too much."

Barthold pointed out that such a move may even fall afoul of the law, which stops companies from complying by isolating users in Texas. Instead, companies might try to have suits moved to other venues, or wait for the issue to get back down to the federal trial court level and argue that Texas’ law impermissibly gets in the way of other states’ commerce.

The Texas law contains yet another provision that could throw off companies’ planning: There’s a section that says Texas courts can’t impose any action that federal law prohibits. Sec. 230 currently protects internet content companies from exactly those actions when they pertain to content moderation, which may leave in place only Texas’ disclosure requirements. The law also requires platforms to maintain public policies that delineate what kinds of content are banned — i.e., the terms of service that most apps and platforms already publish — though in practice, would-be plaintiffs could easily claim that even moderation decisions arising from such clear policies are actually viewpoint-based and forbidden under the law.

In either case, the ruling appears to have started a tech policy experiment to see if sites with user content can function in a vastly different legal environment from the one they’ve relied on for a quarter-century.

Such experiments are already popping up voluntarily on smaller right-wing platforms such as Gettr and Trump’s Truth Social, and Elon Musk has suggested he’s teeing up a similar approach if he gets to control Twitter. The ruling could force that experiment to become ubiquitous, though, and might set up uncertainty that persists until the Supreme Court settles the issues.

“There’s certainly a possibility that it could issue an opinion that will just completely fundamentally change how we use social media,” Greene said, “and maybe more fundamentally change how we use the internet.”

With additional reporting by Issie Lapowsky.

Fintech

Judge Zia Faruqui is trying to teach you crypto, one ‘SNL’ reference at a time

His decisions on major cryptocurrency cases have quoted "The Big Lebowski," "SNL," and "Dr. Strangelove." That’s because he wants you — yes, you — to read them.

The ways Zia Faruqui (right) has weighed on cases that have come before him can give lawyers clues as to what legal frameworks will pass muster.

Photo: Carolyn Van Houten/The Washington Post via Getty Images

“Cryptocurrency and related software analytics tools are ‘The wave of the future, Dude. One hundred percent electronic.’”

That’s not a quote from "The Big Lebowski" — at least, not directly. It’s a quote from a Washington, D.C., district court memorandum opinion on the role cryptocurrency analytics tools can play in government investigations. The author is Magistrate Judge Zia Faruqui.

Keep ReadingShow less
Veronica Irwin

Veronica Irwin (@vronirwin) is a San Francisco-based reporter at Protocol covering fintech. Previously she was at the San Francisco Examiner, covering tech from a hyper-local angle. Before that, her byline was featured in SF Weekly, The Nation, Techworker, Ms. Magazine and The Frisc.

The financial technology transformation is driving competition, creating consumer choice, and shaping the future of finance. Hear from seven fintech leaders who are reshaping the future of finance, and join the inaugural Financial Technology Association Fintech Summit to learn more.

Keep ReadingShow less
FTA
The Financial Technology Association (FTA) represents industry leaders shaping the future of finance. We champion the power of technology-centered financial services and advocate for the modernization of financial regulation to support inclusion and responsible innovation.
Enterprise

AWS CEO: The cloud isn’t just about technology

As AWS preps for its annual re:Invent conference, Adam Selipsky talks product strategy, support for hybrid environments, and the value of the cloud in uncertain economic times.

Photo: Noah Berger/Getty Images for Amazon Web Services

AWS is gearing up for re:Invent, its annual cloud computing conference where announcements this year are expected to focus on its end-to-end data strategy and delivering new industry-specific services.

It will be the second re:Invent with CEO Adam Selipsky as leader of the industry’s largest cloud provider after his return last year to AWS from data visualization company Tableau Software.

Keep ReadingShow less
Donna Goodison

Donna Goodison (@dgoodison) is Protocol's senior reporter focusing on enterprise infrastructure technology, from the 'Big 3' cloud computing providers to data centers. She previously covered the public cloud at CRN after 15 years as a business reporter for the Boston Herald. Based in Massachusetts, she also has worked as a Boston Globe freelancer, business reporter at the Boston Business Journal and real estate reporter at Banker & Tradesman after toiling at weekly newspapers.

Image: Protocol

We launched Protocol in February 2020 to cover the evolving power center of tech. It is with deep sadness that just under three years later, we are winding down the publication.

As of today, we will not publish any more stories. All of our newsletters, apart from our flagship, Source Code, will no longer be sent. Source Code will be published and sent for the next few weeks, but it will also close down in December.

Keep ReadingShow less
Bennett Richardson

Bennett Richardson ( @bennettrich) is the president of Protocol. Prior to joining Protocol in 2019, Bennett was executive director of global strategic partnerships at POLITICO, where he led strategic growth efforts including POLITICO's European expansion in Brussels and POLITICO's creative agency POLITICO Focus during his six years with the company. Prior to POLITICO, Bennett was co-founder and CMO of Hinge, the mobile dating company recently acquired by Match Group. Bennett began his career in digital and social brand marketing working with major brands across tech, energy, and health care at leading marketing and communications agencies including Edelman and GMMB. Bennett is originally from Portland, Maine, and received his bachelor's degree from Colgate University.

Enterprise

Why large enterprises struggle to find suitable platforms for MLops

As companies expand their use of AI beyond running just a few machine learning models, and as larger enterprises go from deploying hundreds of models to thousands and even millions of models, ML practitioners say that they have yet to find what they need from prepackaged MLops systems.

As companies expand their use of AI beyond running just a few machine learning models, ML practitioners say that they have yet to find what they need from prepackaged MLops systems.

Photo: artpartner-images via Getty Images

On any given day, Lily AI runs hundreds of machine learning models using computer vision and natural language processing that are customized for its retail and ecommerce clients to make website product recommendations, forecast demand, and plan merchandising. But this spring when the company was in the market for a machine learning operations platform to manage its expanding model roster, it wasn’t easy to find a suitable off-the-shelf system that could handle such a large number of models in deployment while also meeting other criteria.

Some MLops platforms are not well-suited for maintaining even more than 10 machine learning models when it comes to keeping track of data, navigating their user interfaces, or reporting capabilities, Matthew Nokleby, machine learning manager for Lily AI’s product intelligence team, told Protocol earlier this year. “The duct tape starts to show,” he said.

Keep ReadingShow less
Kate Kaye

Kate Kaye is an award-winning multimedia reporter digging deep and telling print, digital and audio stories. She covers AI and data for Protocol. Her reporting on AI and tech ethics issues has been published in OneZero, Fast Company, MIT Technology Review, CityLab, Ad Age and Digiday and heard on NPR. Kate is the creator of RedTailMedia.org and is the author of "Campaign '08: A Turning Point for Digital Media," a book about how the 2008 presidential campaigns used digital media and data.

Latest Stories
Bulletins