The Battle For Online Speech Moved To U.S. Courts: 2022 in Review

By Aaron Mackey and Joe Mullin

EFF and our supporters have fought off numerous wrongheaded attempts by Congress to regulate online speech, including several that we wrote about last December.

The bevy of bad internet regulation proposals coming out of Congress hasn’t stopped. In 2022, the EARN IT Act was re-introduced. This wrongheaded bill would have allowed states to strip away critical legal protections for any websites, apps, or platforms, as long as state lawmakers linked their proposals to child abuse. If passed, the EARN IT Act would encourage censorship and prod companies away from using encryption.

This bill, which produced massive pushback from EFF supporters, died in the Senate, but not before a committee vote that endorsed the bill.

Meanwhile, two laws that were passed last year by state legislatures in Texas and in Florida are being argued about in federal courts, with mixed results. These laws both violate the First Amendment and will harm internet users if they go into effect. As EFF has explained in multiple legal briefs over the past several years, mandating that any service carry the speech of another violates their First Amendment rights. For now, they’re on hold. Though they are both likely to go to the Supreme Court. 

Courts, Lawmakers Threaten Internet Users’ Speech

In Florida, the legislature passed, and Gov. Ron DeSantis signed, a bill that prohibits online platforms from banning political candidates, fact-checking their statements, or otherwise moderating their posts. The law allows for fines of up to $250,000 per day. We said it’s blatantly unconstitutional, and this year, the U.S. Court of Appeals for the Eleventh Circuit largely agreed. Both Florida officials and the industry groups challenging the law have asked the Supreme Court to take the case.

In Texas, Gov. Greg Abbott signed a bill that he said would stop social media companies that try to “silence conservative viewpoints and ideas.” EFF weighed in again, telling a Texas federal court that the measure is unconstitutional.

The district court agreed. However, the U.S. Court of Appeals for the Fifth Circuit issued a ruling that upended the bedrock First Amendment principle that private entities, from newspapers to parade organizers to online platforms, get to decide what speech they will publish, and who gets to use their services to speak. The ruling is a major threat to online users’ free speech because it jeopardizes everyone’s ability—both platforms and their users—to create online communities, decide for themselves what speech they will host, and how they will moderate it.

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Instead, the Fifth Circuit used concerns about private censorship to hand Texas lawmakers enormous power to control speech online. This is both wrong as a matter of First Amendment law, and dangerous. The decision’s logic puts potentially every community forum and online service under threat of being forced to carry speech they find objectionable. And although EFF agrees that online services’ private censorship is routinely wrong and harmful, government-backed penalties for moderating user speech are not the way to address them. Instead, lawmakers at all levels should be focused on reducing the dominance of today’s largest services.

The Fifth Circuit’s decision also ignores that Congress has bolstered these fundamental First Amendment protections in 47 U.S.C. § 230 (“Section 230”). The federal law, which explicitly preempts state laws that conflict with it, has allowed diverse online services to thrive. This array of services, large and small, allow everyone to speak, organize, and advocate for change. Content moderation is often done poorly, especially when it’s done on a massive scale. But upending Section 230 won’t make the internet a nicer place, and we shouldn’t allow either Congress or state legislatures to step in and propose themselves as our new content moderators.

Another Threat To Speech Is On The Horizon

This fall, the Supreme Court agreed to hear a pair of cases that could push online platforms to broadly censor a host of user-generated speech. Both cases involve claims that Twitter and YouTube aided terrorist organizations when they allowed terrorist content on their site.

The first case, Twitter v. Taamneh, concerns whether a platform’s generalized knowledge of terrorist content on its service is sufficient to state a claim under the Anti-Terrorism Act’s civil provisions. EFF joined a coalition of groups in a brief filed with the Supreme Court that cautioned against such a broad reading of the law because it has the potential to censor protected speech.

The second case, Gonzalez v. Google, is about whether a key law protecting internet speech online, 47 U.S.C. § 230 (“Section 230), prevents claims against YouTube that are based on its distribution of terrorist content. EFF is concerned that narrowing Section 230’s protections will result in platforms removing more users’ speech and potentially chilling the development of new platforms that might provide new and diverse opportunities for users to speak online.

The Supreme Court is expected to hear arguments in both cases early in 2023.

This article is part of our Year in Review series. Read other articles about the fight for digital rights in 2022

Aaron works on free speech, anonymity, privacy, government surveillance and transparency. Before joining EFF in 2015, Aaron was in Washington, D.C. where he worked on speech, privacy, and freedom of information issues at the Reporters Committee for Freedom of the Press and the Institute for Public Representation at Georgetown Law. Aaron graduated from Berkeley Law in 2012, where he worked for EFF while a student in the Samuelson Law, Technology & Public Policy Clinic. He also holds an LLM from Georgetown Law. Prior to law school, Aaron was a journalist at the Arizona Daily Star in Tucson, Arizona. He received his undergraduate degree in journalism and English from the University of Arizona in 2006, where he met his amazing wife, Ashley. They have two young children.

Joe Mullin is a policy analyst at EFF, where he works on patents, encryption, platform liability, and free expression online. Before joining EFF, Joe worked as a reporter covering legal affairs for the technology website Ars Technica, and American Lawyer’s magazine group. Earlier in his journalism career, Joe wrote for The Associated Press and The Seattle Times. He has a bachelors degree in history and a masters in journalism, both from the University of California at Berkeley. Outside of his work at EFF, Joe enjoys trail running and cycling.

Source: EFF

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