On today’s internet, the boundaries of acceptable speech are set by a few massive platforms, including Facebook, Twitter, Instagram, YouTube, and a handful of others. If those companies find something unacceptable, it can’t travel far — a restriction that’s had a massive impact for everyone from copyright violators to sex workers. At the same time, vile content that doesn’t violate platform rules can find shockingly broad audiences, leading to a chilling rise in white nationalism and violent misogyny online. After years of outcry, platforms have grown more willing to ban the worst actors online, but each ban comes with a new political fight, and companies are slow to respond in the best of circumstances. As gleeful disinformation figures like Alex Jones gain power — and the sheer scale of these platforms begins to overwhelm moderation efforts — the problems have only gotten uglier and harder to ignore. At the same time, the hard questions of moderation are only getting harder.
Brett Kavanaugh asks Florida attorney Whitaker about one ongoing question from critics: would saying the First Amendment doesn’t prevent forced speech on websites undercut the rights of all kinds of other businesses that deal with speech?
Whitaker says no, but Justice Ketanji Brown Jackson picks up the question — asking exactly how the law would pick its targets consistently.
“But the one thing I know about the internet is that its variety is infinite,” Sotomayor continues. “So at what point at a challenge like this one does the law become so generalized, so broad, so unspecific really that you bear the burden of coming in and telling us exactly what the sweep is?”
Florida solicitor general Henry Whitaker disagrees that the law is overbroad, saying it only regulates websites that “host user-generated content.” Sotomayor disagrees — bringing up sites like Etsy that are far smaller than the Facebooks and YouTubes of the world, and focus specifically on particular kinds of content. “They’re going to have to censor” to maintain those limits, Sotomayor says. Why shouldn’t they be able to do that?
Texas and Florida’s anti-moderation laws are explicitly pro-Republican, but as my colleague Lauren laid out last week, the lawsuits over them could have bigger tech regulation fallout. While we’re waiting for oral arguments to start, check out The Atlantic and The New Republic for a couple of pieces on the states’ counterintuitive bipartisan appeal, plus some countertakes from Lawfare and Techdirt too.
Arguments begin at 10AM ET — you can listen in on the Supreme Court site directly, and I like the annotated C-SPAN feed too.
The ruling could impact other publishing industries and future social media regulation.
The Washington Post has been pushing Meta on what its recent decision to stop recommending “political” content and “social topics” on Threads and Instagram means, and it’s culminated in this illuminating quote from Meta spokeswoman Claire Lerner:
“Social topics can include content that identifies a problem that impacts people and is caused by the action or inaction of others, which can include issues like international relations or crime.”
So there you have it! It’s yet another indication that Meta is trying to avoid anything getting too contentious on its platforms — but a definition that might not sit well with anyone who’s interested in even the mildest forms of activism online.
Six months after kicking off an initial Mastodon trial that saw it launch its own instance on the federated platform, the UK’s public broadcaster is not just extending the experiment by another six months, it’s also “planning to start some technical work into investigating ways to publish BBC content more widely using ActivityPub.”
It feels like a promising sign for the future of the fediverse.
Child sexual abuse material is a well-known exception to the First Amendment, but the law around AI-generated simulations of it is vastly more complicated. Lawfare’s new analysis addresses some of my longstanding questions — along with others I hadn’t even thought to ask, including the status of tools that accidentally train on CSAM. It’s long, but if you’re interested in how AI will test the criminal justice and legal systems, absolutely worth the read.
Oral arguments in Moody v. NetChoice and NetChoice v. Paxton — respectively concerning whether Florida and Texas can take over social network moderation — were finally put on the docket. Will we see a continuation of last year’s surprisingly circumspect internet law discourse? Or will Clarence Thomas decide the time is right for the crackdown he so craves? We may find out in a couple months!
[SCOTUSblog]
Legal blogger Ken White (aka Popehat) isn’t outright ditching Substack over its decision to keep monetizing Nazi content. But he finds its claim of being a principled upholder of free expression, rather than a company pulling a widely recognized branding trick, a bit risible:
The brand is effective and lucrative. The “we’re the noble defenders of civilization, upholding free thought from the onslaught of the woke hordes” sells these days. It sells even when free thought is actually under more profound assault from cynical and powerful and absolutely not woke forces. It sells even though — as I will get to in a minute — there’s a difference between tolerance and platforming.
[popehat.substack.com]
It’s from New York, and it would require large social media companies to let third-party services do things including blocking or muting content on behalf of users — basically mandating a certain level of free, open API access. Mike Masnick has some thoughtful analysis:
In effect this would roll back some aspects of companies like ExTwitter and Reddit trying to restrict access to their APIs and putting up ridiculously expensive paywalls for that access. It would be tearing down walls and enabling more innovation. [...] I like the concept of the bill, but I’m just not sure New York really has the authority to do this like this, and I worry on the margins about some of the way the bill is written.
As 404 Media notes, an investigation into alleged “hacker-for-hire shop” Appin has been removed — Reuters says temporarily — after what Reuters calls a preliminary court order that the news outlet is fighting. There’s no clear evidence of factual errors here, which might make this a case of de facto press censorship in India. You can still read the feature here.
In a sitdown with Verge EIC Nilay Patel on Decoder, the 44th president discussed Joe Biden’s recently-signed executive order about AI, why Obama disagrees with the idea that social networks are a “common carrier,” and which iPhone apps he uses the most, now that he’s no longer president and he can use an iPhone.
After 30 years teaching law, the internet policy legend is as worried as you’d think about AI and TikTok — and he has surprising thoughts about balancing free speech with protecting democracy.
The DOJ was granted (PDF) a stay of an injunction barring DHS, CISA, FBI, and other federal officials from contact with social media platforms about content moderation. The judge who wrote the injunction this summer claimed their requests about posts containing covid misinformation amounted to a violation of the First Amendment.
An appeals court limited the terms of the ban last month but paused the process to see if the Supreme Court would weigh in. Now it will hear the DOJ’s appeal, over dissent from three justices (Alito, Thomas, Gorsuch).
In a recommendation adopted today, it asks countries to quickly designate an authority for a network of Digital Services Coordinators under the EU-wide Digital Services Act, despite having several months left until the official February 2024 (Right now, the recommendation says under 10 percent of members have done so.) The network will help coordinate takedowns of illegal content on social media platforms, an effort the EU says it’s kicking into high gear following Hamas’ attack on Israel earlier this month.
The potential result? Even stricter efforts to make services like X and YouTube remove disinformation or terrorist posts — if member states play ball.
Hamas is banned from most social media as a designated terrorist organization, but as The Washington Post lays out, it’s used a popular Telegram account to “strengthen supporters’ resolve, stir up anti-Israel rage in neighboring countries, defend its militants’ brutality and induce sympathy to the plight of Gaza.” As The New York Times wrote yesterday, it’s also recently hijacked hostages’ social media accounts to spread terror and propaganda — in ways that are particularly hard to safeguard against.
[The Washington Post]
I worked my way through Trust & Safety Tycoon, and I was right: the brony call came back to haunt me. I encourage you to beat my score.
Techdirt’s Mike Masnick has helped put together a followup to online moderation simulator Moderator Mayhem, and I’ve barely gotten started, but it looks like just as much fun. You can find out more about Trust & Safety Tycoon on Techdirt or play it here.
First was X, then came Meta, now TikTok has put out a blog post on its moderation policies in response to EU commissioner Thierry Breton. The video platform says it’s removed over 500,000 videos and 8,000 livestreams in the region since the attacks on October 7th, and has also added more Arabic and Hebrew-speaking moderators to its ranks.
