Texas has joined Florida among states with the largest school shootings in American history. Both states are governed by conservatives who insist that the Second Amendment is sacrosanct.
But if either state took the First Amendment half as seriously, they wouldn't be attacking the constitutional rights of social media sites to remove content that helps cause mass shootings.
The more people can watch the live streams of such shootings, the more children will die. Nearly every social media site bans the distribution of such videos and tries to stop their spread as quickly as possible. They also ban glorification of such shootings, denial that these tragedies ever occurred, and harassment of victims’ families.
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Most egregiously, Alex Jones spent a decade peddling the conspiracy theory that the Sandy Hook, Connecticut, massacre was staged to justify suppressing Americans’ gun rights. Grieving parents there—and later in Parkland, Florida—have been harassed for years by conspiracy theorists who insisted they must be “crisis actors” working in service of some nefarious government plot to trample Americans’ rights. Some parents even received death threats, and were forced into hiding.
The families of those killed in Uvalde, Texas, shouldn't have to face the same abuse.
Yet under new laws enacted by Texas and Florida, social media sites could be sued for moderating all of this content—and for banning those who share it. Both states claim they’re protecting conservatives from “censorship.” In fact, their laws would give legal weapons to crackpots, such as Alex Jones, who would inspire further 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 Florida’s law to take effect. But two weeks ago, a different federal court allowed enforcement 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 restore an order enjoining the Texas law, lest it open the floodgates of “lawful but awful” content. The Court may grant review of both laws this fall.
The two laws work somewhat differently, but with similar results.
Texas bans “censorship” based on viewpoint. If a shooter posted a video explaining his motives—as the racist shooter in Buffalo did—a social media site could be sued for blocking it, even if it included live footage of the shooting. Glorification and denial of shootings by others clearly expresses a viewpoint, so could not be moderated.
Texas’ law excludes “incitement” of criminal activity, a category of speech the Supreme Court has interpreted far more narrowly than most people assume. (No, “shouting fire in a crowded theater” wouldn't qualify.) Texas also excludes “threats of violence,” but they must be “specific,” which most online harassment isn't. “Unlawful expression” can be removed, but that wouldn't include live shooting videos, glorification of shooters, or denial of shootings.
Florida bars moderation of content posted by “journalistic enterprises”—including Jones’s Infowars and Gateway Pundit, another leading purveyor of conspiracy theories about Sandy Hook and Parkland—and candidates for public office. Florida also requires “consistency” in content moderation, which could bar sites from moderating content sympathetic to shooters if they want to leave up news reports about that content. It further mandates that users have the option of seeing all “shadow banned” content—however heinous. Florida’s law also makes an exception for moderation of “obscenity,” a narrow category that includes essentially only child sexual abuse material.
Alex Jones’s claims that the Sandy Hook parents were “crisis actors” might well have been defamatory. But it takes courts years to decide defamation cases—four years in that case. And even then, Jones lost only by default for having defied multiple court orders. There's just no way websites can predict what will be considered unlawful—and they won't risk getting that wrong in the face of stiff penalties.
What about Section 230? That 1996 federal law, written by a conservative Republican and approved by a nearly unanimous Congress, has broadly protected websites from being sued over content moderation. But in recent years, conservatives have turned against the law, blaming it for “censorship.” In fact, Section 230 merely ensures that websites needn’t endure the enormous cost of litigating constitutional questions when they curate content they host.
Justice Clarence Thomas has called on the Court to sharply limit the law’s protection for content moderation—something the Trump administration also attempted through regulatory fiat, and that the next Republican president will doubtless try again.
Today, courts apply Section 230(c)(1) to dismiss lawsuits that seek to hold websites responsible for decisions they make as publishers, including refusing to host content. Under Republicans’ reinterpretation of the law, websites would have to prove that they acted in“good faith” under Section 230(c)(2)(A). That’s a highly fact-specific question that might require extensive discovery regarding websites’ motives—exactly the kind of fishing expedition Alex Jones wants.
Moreover, the content moderated would have to be “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.” While shooting videos would be “excessively violent,” conservatives have construed “otherwise objectionable” (intended as a broad catch-all) so narrowly that it wouldn’t cover glorification of violence or misinformation about shootings—let alone the White supremacist conspiracy theories about the “Great Replacement” that radicalized the Buffalo shooter. So websites would face lengthy lawsuits for trying to remove content that inspires copycat shooters.
The government just doesn’t have any business dictating to private media companies what kind of speech they must carry—as the Supreme Court long ago ruled about newspapers. The same goes for social media sites, according to the judges who blocked the Florida law—rock-ribbed conservative intellectuals all.
Legislating against content moderation may 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.
