Very probably the latter, but that really doesn't make it better
From TechDirt:
So, I already had a quick post on the bizarre decision by the 5th Circuit to reinstate Texas’ social media content moderation law just two days after a bizarrely stupid hearing on it. However, I don’t think most people actually understand just how truly fucked up and obviously unconstitutional the law is. Indeed, there are so many obvious problems with it, I’m not even sure I can do them adequate justice in a single post. I’ve seen some people say that it’s easy to comply with, but that’s wrong. There is no possible way to comply with this bill. You can read the full law here, but let’s go through the details.
The law declares social media platforms as “common carriers” and this was a big part of the hearing on Monday, even though it’s not at all clear what that actually means and whether or not a state can just magically declare a website a common carrier (as we’ve explained, that’s not how any of this works). But, it’s mainly weird because it doesn’t really seem to mean anything under Texas law. The law could have been written entirely without declaring them “common carriers” and I’m not sure how it would matter.
The law applies to “social media platforms” that have more than 50 million US monthly average users (based on whose counting? Dunno. Law doesn’t say), and limits it to websites where the primary purpose is users posting content to the site, not ones where things like comments and such are a secondary feature. It also excludes email and chat apps (though it’s unclear why). Such companies with over 50 million users in the US probably include the following as of today (via Daphne Keller’s recent Senate testimony): Facebook, YouTube, Tiktok, Snapchat, Wikipedia, and Pinterest are definitely covered. Likely, but not definitely, covered would be Twitter, LinkedIn, WordPress, Reddit, Yelp, TripAdvisor, and possibly Discord. Wouldn’t it be somewhat amusing if, after all of this, Twitter’s MAUs fall below the threshold?! Also possibly covered, though data is lacking: Glassdoor, Vimeo, Nextdoor, and Twitch.
And it gets worse from there.
Wikipedia is one of the best things and most hopeful developments to come out of the internet. I know that sounds like hyperbole but I am absolutely sincere. It might be the one place that actually lives up to the utopian expectations of Web 2.0. A non-profit collaboration of volunteers, it should be a disaster, yet somehow it manages, not just to work, but to achieve an unprecedented scope and a depth while maintaining a remarkable level of accuracy and objectivity. In my experience, you are far more likely to find serious errors and omissions in the New York Times or the New Yorker than in Wikipedia, despite the fact that the editors at the former publications are well compensated while the editors for the latter aren't paid at all.
The Internet Archive (the only peer of Wikipedia I can think of) set up a backup site in Canada shortly after the election of Trump. Given the role vigilant content moderation plays in Wikipedia's operation, it's difficult to see how it could continue to operate in the U.S.
The standard response to these concerns is that even this court would have to find this law unconstitutional. The problem with that argument is that it has failed so often (months before the Roe decision finally caught everyone's attention), especially when there's been a chance to own the libs or rectify some perceived conservative grievance. Both apply here.
The Republicans are poking some very big (and deep pocketed) bears -- did I mention your spam filter would go away? The latest far-right conspiracy theory claims that Gmail is biased against conservative emails -- so there will be a fight, and as long as Wikipedia is standing next to Facebook and Google, it will be defended. In 2022, that may be the best we can hope for.
More here from legal expert Ken White.
Wondering why the Texas social media law is such a big deal for big (over 50M users) social media companies?
— FreshMouthHat (@Popehat) May 11, 2022
Let's look at two elements of it -- the "anti-censorship" element, and the enforcement mechanism --from a litigator's view. There are other problems as well.
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