Talking Tech with Kate Ruane & K.J. Bagchi on Moody v. NetChoice & NetChoice v. Paxton
On February 26, the U.S. Supreme Court heard oral arguments for Moody v. NetChoice and NetChoice v. Paxton, two pivotal cases that could alter the landscape of free expression on the internet. <br><br>In this episode, we sat down with CDT’s Director of the Free Expression Project, Kate Ruane, and Vice President of the Center for Civil Rights and Technology, K.J. Bagchi to discuss the two cases that are challenging the constitutionality of the controversial Texas and Florida social media laws.
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Transcript
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Welcome to CDT's Tech Talk, where we dish on tech and Internet policy while also explaining what these policies mean to our daily lives. I'm Jamal Magby, and it's time to talk tech. This term, the US Supreme Court is set to tackle pivotal cases shaping the landscape of free expression on the Internet. Among them are Moody versus Netchoice and Netchoice versus Paxton, for which arguments were held on Monday, February 26, and Murphy versus Missouri in March. Today, we will discuss Moody versus Netchoice and Netchoice versus Paxton, two consolidated cases challenging social media legislation enacted in Texas and Florida. In our amicus briefs, CDT contends that certain provisions of these laws could compel platforms to alter their content moderation policies or host user generated content against their discretion, potentially infringing upon platforms' First Amendment rights. These cases, along with several others, can shape our ability to express ourselves online across The U. S. In years to come. Here to discuss the impacts of these two cases and share updates following oral arguments are Kate Ruon, director of CDTs Free Expression Project, and KJ Bakshi, vice president of the Center for Civil Rights and Technology, which is housed at the Leadership Conference on Civil and Human Rights. Kate and KJ, welcome to the show. Thanks, Jamal. Thanks, Jamal. Excited to have you both on. Good to be here. So, Kate, can you help jog our memory a bit and give us a quick overview of the two cases that are currently being heard by the court? Yeah. Sure.
So the net choice cases involve two statutes, one from Texas and one from Florida. Both of them govern what we call content moderation by social media services. So the process by which social media services decide what content belongs on their services and what doesn't. And both statutes were generally aimed at forcing those services to continue to host or distribute speech that the services otherwise would not because the lawmakers in Texas and Florida did not like the decisions the platforms were making about what content belonged on their services and what didn't. Florida's law broadly prohibits certain types of content moderation, including censorship and shadow banning, and it also prohibits moderation of content about certain topics or by certain categories of speakers, like journalistic enterprises and speech by or about candidates for office. Among other requirements, the law imposes on moderation practices, it requires that all content moderation be done in what the statute terms a consistent manner. Texas's law, on the other hand, prohibits censoring user content on the basis of the user's viewpoint, the viewpoint of another person, or the user's geographic location within Texas. Now the Eleventh Circuit examined Florida's law and determined that content moderation is speech protected by the First Amendment, a view that CDT shares. It further held that content moderation restrictions imposed by Florida's law likely violated the First Amendment, and therefore, the eleventh circuit enjoyed the statute. The fifth circuit, which reviewed Texas's law, reached basically the opposite conclusion in every respect to the eleventh circuit. And so, you know, because the cases reach opposing conclusions on the constitutionality of similar statutes, the Supreme Court took the case to resolve the conflict, and those were the arguments that we heard on Monday. To give a little more sort of historical context as to where these laws were originating from
in terms of just so sort of the the conservative conservative backlash we saw. So, obviously, you know, we're all aware of the insurrection that happened on 01/06/2021. And in that year, we saw a number of states that have Republican majorities that had sort of more of a conservative control of the house, or both both chambers and or or the governorship introduced these sort of viewpoint discrimination bills. Right? And as Kate pointed out, the Florida and Texas laws do have, you know, a little difference in terms of how they execute what they're trying to achieve. But the overall goal is of these laws is essentially to punish companies for removing folks who have conservative any kind of conservative viewpoint. And, again, this was after former president Trump in response to his comments on what was then Twitter, now x, and, of course, Facebook, was taken down was basically banned from both platforms. And so I think states as a backlash to this started introducing a number of bills, which, of course, we'll talk a little bit more about, you know, run a foul of number a number of legal challenges. But I think just, again, it's helpful to kinda ground the conversation both legally, but also just in terms of societal perspective, like, what it is and why we saw states moving to try to introduce these bills.
No. That's very helpful and and interesting. So the Supreme Court just heard oral arguments around the two cases. What have you both gleaned so far? What gives you hope and and what gives you pause? I'll let Kate jump in first so I can I can have my thoughts? Sure. Happy to go first. So I'll I'll start with hope.
You know, in listening to the arguments, I I think that a number of the justices seemed deeply skeptical of the constitutionality of these laws as they apply to the paradigmatic social media services, your your exes, your Facebooks, your YouTubes. And, you know, particularly, justice Kavanaugh returned again and again to the core first amendment questions at the heart of the case that this is really about a government attempt to dictate editorial decisions because the government didn't like what they were seeing. And, frankly, like, I was pretty relieved to hear that that degree of skepticism from a number of the judges. On the issue that gives me pause, I would say that listening to the arguments, the justices were kind of far more willing to to entertain the possibility that the Florida statute in particular may not be unconstitutional in all of its applications. And I'm a little concerned that they may be considering letting that statute go into effect during litigation, which would mean that Florida's law, which to me applies most directly to speech about elections, would go into effect during a presidential election year, because there's basically no way that this litigation will be over by November. And I I think that that is possibly a recipe for chaos if the court goes in that direction. Yeah. And I'll I'll quickly jump in, and I will definitely
cheat a little bit and copy Kate's first point because I agree that the the skepticism from the justices was, I I think, was, you know, heartening in terms of where what the impact could be going forward in terms of what happens with this case. I should say I should have said this at the very top that, you know, at the leadership conference on civil and human rights, we did not file in this case. We weren't part of any sort of, amici. And so the perspective that we're really trying to bring to this conversation is, again, around content moderation and the impact that this on so this this ruling could have on content moderation, and that's why we're watching very closely to see what the outcome could potentially be in terms of protecting our communities that we represent online. So to that sense, in terms of seeing the justices skeptical purely from a First Amendment perspective, again, for us being concerned about content moderation, I think that was heartening to see. There were obviously other arguments that were raised and they had that that discussion, and I know we're gonna jump into that in a little bit. I think what gives me pause is the fact that there still seems to be the possibility that there could be a narrow ruling. There could be a remand. I I it doesn't did not look like it was pretty unanimous in terms of just kind of halting where we're at here on a First Amendment basis. And so the fact that this conversation hopefully, folks will be you know, inviting me back in a, you know, in a few months or whatever on terms of, you know, follow-up to this because the the ruling could potentially be one that is still threatening
the ability for companies for platforms to moderate that content. I wanna jump back a little bit because previously, the fifth circuit court of appeals ruled that social media companies are like phone companies, common carriers, and they can therefore be prevented from removing content. Can you explain exactly what this means and and how the court should
interpret this? I mean, I could try. To be honest, like, this argument, it it's kinda like a sleight of hand. The states are trying to say that if a platform holds itself out as being open to all speakers, it must carry all messages just like a telephone service provider or an Internet service provider. And that sounds, you know, kind of appealing at least at first, but it ignores really important differences between telephones and something like Blue Sky or Twitch or Instagram. Telephones and Internet services are just not inherently expressive services. They carry speech between points designated by the user, and that is why they can be regulated as common carriers that are required to carry all legal speech without discrimination. But Blue Sky, Twitch, or Instagram, or YouTube, or any other social media services, they are all very different. They have always held themselves out as places for certain types of discussion but not others. Facebook has never allowed nudity, for example. Twitter, now x, always has and has recently undergone a truly radical change in its content moderation policy since being acquired by Elon Musk. So now it does far less moderation than they have in the past as part of mister Musk's vision for making the platform more free, though some might say he has made it less useful and hospitable to a variety of users. In any case, these services act more like speech publishers, analogous more to bookstores and newspapers than to telegraphs. They pick and choose what they want on their services and how they want to display it. So how can and should courts sort of interpret this? The court should really find that social media platforms are not common carriers and instead that they are more like publishers that are making editorial decisions about the content that belongs and does not belong on their services. That means that the government simply cannot require them to carry any specific content. And that's sort of how I think that should come out. But like I said, like, this argument can get really can get really confusing and bogged down pretty quickly.
I can see how it can get very confusing and and bogged down. So so going back going back to the Supreme Court, during the argument, justice Kagan asked whether these laws, particularly the Texas law, could be understood as an expression of public accommodation laws, which generally require certain businesses to offer their services without discriminating against customers on the basis of their status as a member of of a protected class.
How are these laws different from public accommodation laws? And are are they different from public accommodation? So I'll just quickly jump in. I so I think what was fascinating about the arguments is that you could tell that the in terms of Florida and Texas's arguments, they were trying to find ways to skirt around first amendment strict scrutiny. Right? So Kate talked about the common carrier status as one. I would argue that, like, trying to, again, coop this idea of expanding on public accommodation laws was another way that the states were trying to skirt some of this sort of scrutiny. I think for us, when we think about public accommodation laws, we are thinking about the civil rights movement. We're thinking about folks being denied access, whether it be governmental entities or private businesses, but folks not having access to restaurants, to movie theaters, to libraries and shops. And so the idea that somehow having a viewpoint or posting content that is violative of a company's rules of conduct or their, you know, their community guidelines or terms of service is somehow equivalent to what we have seen as historical discrimination and to have access to sort of, you know, these public and private entities. You know, on the first hand, it's very, I would say, offensive. Secondly, it's frustrating because I think it does try to, again, co opt the civil rights movement to make to, again, kind of build into the what we're seeing as a response to some of the conservative backlash. I think that has been something we've been watching closely. The other argument, you know, and I think this was raised during the oral arguments that, again, forcing social media platforms to address, you you know, right wing grievances is not a public accommodation. It's not an expansion of that. And so I think that the fact that, again, for us focusing on the idea that we're worried about content moderation being impacted and trying to, again, trying to find ways to bring in civil rights arguments or traditional civil rights protections as a way to allow people to post whatever they want and to not be punished or taken down by companies is is definitely frustrating.
Yeah. I mean, just to add on to what KJ said, I but a couple things. Like, first, I do think that Texas and Florida, had they actually wanted to amend their public accommodations statutes to include social media companies as requiring them to hold themselves out without discrimination on the basis of membership in a protected class, the states could have done that, but they did not. They did something else. And kind of generally speaking, public accommodations statutes apply to refusals to deal or refusals to serve. And under existing first amendment doctrine, that that is conduct. Now where that intersects with free expression or with first amendment doctrine is when, like, where where the court has expressed concern is when the statute would step in to change the message of the speaker. That is where public accommodations, statutes, and the first amendment have have come into conflict in the courts. And we can all have differing opinions about that. But in terms of the application of that principle to these statutes, it would seem to me that these statutes are clearly aimed at changing the message of the social media services, changing their message in a way that the government prefers. And that to me seems to kind of fly in the face of some of the first amendment doctrine, even in the public accommodations space. So first of all, I don't think this is a public accommodation statute at all. But, also, even if it was, I still think that it suffers from some significant first amendment problems since the government is, in fact, aiming this statute at attempting to change the message of the speaker, which is not what which is not generally what they're doing in a in in in the context of public accommodation statutes. In public accommodation statutes, what they are trying to do is ensure that everyone has equal access to public accommodations regardless of their membership in certain protected classes. So that's that's just to to support everything that that that KJ just said. Like, I don't think these are public accommodation statutes. But even if they were, they seem to raise the same issues that the court has expressed skepticism of as being unconstitutional
in the past. I'm gonna take Jamal's moderator's privilege for a second and just respond. I mean, I'm I'm actually curious about Kate's take in terms of of whether she thought that the justices were responsive to the public accommodation argument. From my reading, I mean, justice Kagan raised this as as Jamal referenced, but, again, it didn't seem to get too much traction from the court. But, again, we know that oral arguments aren't always indicative of changes to to principles and legal doctrine. But, again, just want would love to kinda hear your thoughts on you if you think that was an argument that was actually sticking. I it didn't seem to stick. I agree with you, KJ.
I I appreciated the question from justice Kagan to solicitor general Prelegar, and I also really appreciated the solicitor general's answer. I thought the answer that she gave was correct. The reason that I think that this is worth continuing to talk about is I continue to be concerned that we are, as you were saying earlier, conflating civil rights statutes, long standing civil rights protections with the protection of particular viewpoints. Like, civil rights statutes are, to me, intended to protect people's, like, equitable access to goods and services in the marketplace, free from free from invidious discrimination on the basis of race, national origin, religion, gender, sexual orientation, gender expression, and and disability. Whereas this is trying to say, also, you can't discriminate against people on the basis of their viewpoint. And that has just never been what what we have thought the government could tell private speakers to do or not do. And so I I like, I I wanna keep talk like, I'm I'm con I continue to want to talk about this because I wanna be sure that the court is aware of this distinction and is making this distinction. If they're going to address it at all in their opinion, they should be clear about this distinction.
One question I have, and we're I I wanna push us forward a little bit and and shift gears just slightly. I'd like to know why is it important that social media companies create content policies regarding what content is and is not allowed on their services, continuously iterate on those policies, and implement processes to enforce those policies to foster the type of environment they wish to create.
Why is this important? So I'll I'll take a a first stab at it in in response. I I should say upfront as much as, you know, I talked about our interest in observing these arguments based on the idea that there could be an impact on content moderation. I'm definitely not here to defend every content moderation decision that companies have made. We saw this and that, you know, I will take the opportunity to quickly call out some of the quick the the content moderation policies that we have been calling out and talking to the platforms about investigating, and that is, of course, changing their policy on the big lie, which is allowing content that claims that the twenty twenty election was stolen to still remain. We're coming into the twenty twenty four presidential election cycle, other, you know, other elections up and down the ballot. But again, to us, the core of disinformation that is online comes from allowing this type of content to remain. So just one example, again, not here to completely defend every content moderation decision made by these platforms, but definitely it is it is worth calling out. And I do think it it's important. Right? You look at YouTube's latest transparency report and they, you know, they talked about how they took down nearly 200,000 videos that violated their hate speech policies. You look at Meta's, you know, quarter four twenty twenty three report, and they talk about how they they took actions on between October and December, they took actions on 7,000,000 pieces of content. So we know just from looking at these quicks, you know, quick stats that this type of content is prevalent on these platforms, and we want them to be in a space the platforms are in a space where they can police this content and ensure that all diverse perspectives, all communities of color who come in with their own points of view are not essentially pushed off or having their speech chilled by having this hate speech, this violence inciting, or just straight disinformation, you know, talking of the threats to sort of public safety that this type of content does not remain on these platforms. And so we wanna have companies we want platforms to have that ability to to remove that. And I think what is concerning about the content of the Texas and Florida laws even before you know, stepping aside from the oral arguments on Monday, but thinking about the laws themselves is that it's essentially it's essentially handcuffing platforms from having the ability to take down egregious content. And for those of us when we're, you know, we're we're in 2024 right now, all of our communication, most of our communication, I should say, is on is coming through these platforms. Right? Studies constantly show that people get their news from these platforms. And so the ability to ensure that content that is on these digital services are again, we're not protect we're not defending every decision they make in terms of what they keep up or take down, but you want to at least ensure that the bad stuff will be taken down, and these laws are actually a threat to that. KJ, I can't see any, but I'm nodding. I'd like to build on what KJ just said by using an example from CDT's research where we found in our report on representative democracy
that during the twenty twenty US congressional election, women of color candidates were twice as likely as other candidates to be targeted with or subject to mis- and disinformation. That's just one of the top line findings of that report, and it is representative of a lot of other a lot of other findings people, and researchers have published and written about with respect to how absent Florida and Texas' attempts to put their thumb on the scale of what can and can't be moderated. Platforms still need to do better, and they need civil society, people like KJ, people like the people like the folks here at CDT, engaging in this research and being able to go to go to the platforms and say, this is how it's currently working, and here's how you can do it better. Under Florida and Texas's laws, we couldn't ask the platforms to do better. They would be prohibited from doing diff from doing things differently. And they would have to make choices like, some possibly absurd choices. Like, KJ just mentioned that, you know, many people get their news from social media services now. Well, under this bill, under these laws where they would have to treat all of their moderation decisions consistently or in a viewpoint neutral manner, they may decide to remove entire topics from their services, which is essentially what the, you know, the the Texas attorney general said during his arguments. He said, you know, platforms could make the choice to just remove all discussions of race. So if you don't wanna if you, platform, don't wanna host racist speech or you want to moderate harassing content directed at women of color in order to be viewpoint neutral, you also could not you also could not host speech about racial justice. And so the whole topic disappears from that service if you want if under Texas's law, you act you you don't want to have to host the the racist invective. So content moderation is imperfect, and it requires consistent engagement from users, from civil society, and indeed even from governments sometimes
for it to get better. But government intervention, like what we see in the Texas and Florida statutes, are not interventions that help things get better. And and, Kate, I think you're you're you're leading into our our next question. What could happen if courts decide to uphold Texas's and Florida statutes? I and I think you touched on it, but I'd like you to expand and, of course, invite KJ to share as well. Yeah. I mean, it's tough to
it it's tough to imagine anything more chaotic for online expression than allowing these laws to go into effect for any length of time. To be to be perfectly candid, I think I just get like, gave one of the previews, like, oh, that like, no speech about race on platforms possibly. Or looking if you look specifically at Florida statute, which prohibits shadow banning or censoring content that is by or about candidates for office. Taking into account what I just said about what happens to candidates of color, female candidates of color, and that the the fact that they are already subject to disproportionate amounts of mis and disinformation directed at them. Now add into that an inability of the platforms to even attempt to moderate that content and the absolute deluge of hate and misinformation and disinformation and harassment that will flow from that is almost unimaginable and will have a deterrent effect on free expression because the people who are most subject to that sort of harassment, like women of color, like people in the LGBTQ community, will now be even further dissuaded from engaging in this in public discourse online and making us all poorer as a result. And that's just one little example. That's that's one little piece of the Florida statute where but these laws will have far greater impacts than than just that example. But even that example should be enough to convince us that this is a bad idea. And I and one other kind of absurdist thing about the Florida statute is you can kinda make anything about a candidate, right, as long as you just tag them. So whatever my my, like, spammy campaign might be to sell supplements or, you know, whatever, all I would have to do to evade being to evade my content being moderated would be just to tag a a Florida political candidate in my spammy campaign. Like, that that can't be that that doesn't make any sense. So on top of, like, the the absolute clear harms that would result from the statutes going into effect, there's also there's also the absurd, like, parts of this, and that that's one of the that's one potential potential consequence. I'm just gonna I'm gonna quickly,
jump in. I think there are two there's sort of, like, two points I wanna make, and and they may seem like I'm like I'm focusing on like, I'm exaggerating here. But the purpose of, you know, when we launched the Center on Civil Rights and Technology last year, the focus was on the communities that we represent, the the communities of color that, again, are living and and thriving online in certain ways. But, again, I think through some of the stats from past years that talk about the experiences that people of color have had. I think about a 2017, which is again a while ago, but still the number of those statistic is pretty startling. And in that Pew Research study, they found that one in four black Americans have faced online harassment because of their race or ethnicity. That's with decent content moderation policies in place. I think about the fact that white supremacists that have taken on massive killing campaigns have put out their screeds on platforms first to gain traction sympathy to kinda make it clear where like, what they're about to do. And, again, so do I think that less content moderation is going to hurt communities of color? Absolutely. And the final point I'll make is that in a, again, in a presidential election year, when you can have these online campaigns to harass people of color, to threaten them from from interfering in the democratic process or or just straight ups giving incorrect information to people in different languages who have who may have a different, you know, in like, in terms of their relationship with this country and their immigrant status, who can vote, have the ability to vote. But now they're getting information saying that, well, you know, polls are open on Wednesday. Make sure to show up. It is critical that that companies' platforms do more in terms of moderating this content, and I called out some of the failures that we've been working on on this on this in this sort of, in this arena. But the overall goal is to have stronger content moderation, not to weaken the the screws. I think that's a good place for us to stop today just for now because I think we're gonna have to have you both back on very soon. But I would like to know, are are there any final or departing thoughts that either of you would like to share? And, KJ, I'm gonna kick this, to you first. I think we just need to wait and see what this court does. Right? I just think I mean, that's really my I I really am trying to dig deep and and, you know, I took up my crystal ball this weekend. I'm talking to other folks in this space, and I really it's really hard to forecast, right, with this court if they're going to sort of adhere to traditional first amendment right principles or first amendment principles and that doctrine or if they're going to find ways to create
exceptions that could potentially have dire consequences down the road. And if I could add one last thing, I would say that, you know, the justices did sound like they were cognizant that there would be additional attempts to regulate social media platforms and online services down the road, and they wanted to be careful about those future potential cases in whatever they decide here. And I think that's a good thing because these laws are badly drafted and they are bad, but that doesn't mean we are helpless in terms of regulating aspects of these platforms. It doesn't mean that there is nothing we could do. There there's there are comprehensive consumer privacy regulations that we could pass. There are, you know, transparency requirements that we could work on that we could work on getting, getting established. Like, there there are things we could do. Competition policy is another area that that can address a lot of a lot of what we're talking about and a lot of what what does actually deeply concern us about about online platforms and the way that they interact with our world. So I think, you know, whatever the court does here, I don't think we should despair or think that Texas and Florida is all there is and we couldn't that this is what we would have to do. That's just not true. There are there are other things that we could do to address some of the real harms that KJ and I have both talked about. So no panicking just yet.
Right. Is that are you are you guys looking at a statement or is that a statement or a question? I couldn't tell.
Yeah.
I couldn't tell. I'm like, yeah. No. No panicking yet. We'll have to just watch and see what happens. Well, Kate and KJ, it's been a pleasure having you both here. Thank you so much for for joining us. Thank you, KJ. Thanks, Jamal. Yeah. Thanks for the invite. I appreciate it being here. Of course. Anytime. And for all of our listeners, to keep up with what CDT is doing, please visit us at cdt.org and on all social networks at send them tech. I'm Jamal Magdi, and thank you for talking tech.
