Social media “free speech” laws in Florida and Texas would require websites to host videos of mass shootings

Texas, along with Florida, is among the states with the largest school shootings in American history. Both states are governed by conservatives who insist the Second Amendment is untouchable.

But if either state took the First Amendment half as seriously, they wouldn’t be challenging social media sites’ constitutional rights to remove content that contributes to mass shootings.

The more people can watch the live streams of such shootings, the more children will die. Almost all social media sites ban the distribution of such videos and try to stop them from spreading as soon as possible. They also prohibit glorifying such shootings, denying that these tragedies ever happened, and harassing victims’ families.

Most egregiously, Alex Jones spent a decade promoting the conspiracy theory that the Sandy Hook, Connecticut massacre was orchestrated to justify the suppression of Americans’ gun rights. Grieving parents there – and later in Parkland, Florida – were harassed for years by conspiracy theorists who insisted they had to be “crisis actors” working in the service of a nefarious government plot to trample on Americans’ rights. Some parents even received death threats and had to go into hiding.

The families of those killed in Uvalde, Texas should not be subjected to the same abuses.

But under new laws passed by Texas and Florida, social media sites could be sued for moderating all that content — and banning those who share it. Both states claim they protect conservatives from “censorship.” In fact, their laws would give cranks like Alex Jones legal weapons that would encourage more massacres.

This week, a federal appeals court ruled that website publishers have the same First Amendment rights to curate content as newspapers and parade organizers — and refused to implement Florida’s law. But two weeks ago, another federal court allowed a similar Texas law to be enforced without bothering to issue a legal opinion.

Last week, my organization, TechFreedom, was among 18 leading civil rights groups asking the Supreme Court to restore an order banning Texas law from opening the floodgates of “lawful but terrible” content. The court may authorize review of both laws this fall.

The two laws work slightly 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 even if it contained live footage of the shooting. The glorification and denial of shootings by others clearly expresses a point of view and therefore could not be moderated.

Texas law bars “incitement” to criminal activity, a category of speech that the Supreme Court has interpreted much more narrowly than most people realize. (No, “yelling fire in a crowded theater” wouldn’t qualify.) Texas also rules out “threats of violence,” but they must be “specific,” which most online harassment isn’t. “Unlawful language” can be removed, but that would not include live shooting videos, glorification of shooters, or denial of shootings.

Florida bans the moderation of content published by “journalistic establishments” — including Jones’s Infowars and Gateway Pandit, another leading purveyor of Sandy Hook and Parkland conspiracy theories — and candidates for public office. Florida also requires “consistency” in moderating content, which could prevent sites from moderating content sympathetic to shooters if they want to leave news reports about that content. It also mandates that users have the ability to view all “shadow-locked” content – however obnoxious. Florida law also makes an exception for moderating “obscenity,” a narrow category that essentially only includes child sexual abuse material.

Alex Jones’ claim that Sandy Hook’s parents were “crisis actors” could well have been defamatory. But it takes years for courts to rule on defamation cases — in this case, four years. And even then, Jones only lost by default by defying multiple court orders. Websites simply can’t predict what will be considered illegal – and they don’t risk getting it wrong in the face of severe penalties.

What about Section 230? This 1996 federal law, authored by a conservative Republican and approved by a nearly unanimous Congress, largely protected websites from being sued for content moderation. But in recent years conservatives have opposed the law, blaming it for “censorship.” In fact, Section 230 merely ensures that websites do not have to incur the huge costs of addressing constitutional issues when curating content they host.

Judge Clarence Thomas has asked the court to severely limit legal protections for content moderation — something the Trump administration has also attempted through a regulatory injunction and which the next Republican president will no doubt try again.

Today, courts are using Section 230(c)(1) to dismiss lawsuits seeking to hold websites accountable for decisions they make as publishers, including refusing to host content. Under the Republican reinterpretation of the law, websites would have to demonstrate that they acted in “good faith” under Section 230(c)(2)(A). That’s a very fact-specific question that might require extensive investigation into sites’ motives — just the kind of fishing expedition Alex Jones wants.

In addition, the moderated content would have to be “obscene, lewd, lascivious, dirty, excessively violent, harassing or otherwise objectionable”. While videotaping would be “excessively violent,” conservatives have interpreted “otherwise objectionable” (intended as a generic catchphrase) so narrowly that it would not cover the glorification of violence or misinformation about shootings — let alone white conspiracy theories Racists of the “Great Replacement” who radicalized the Buffalo shooter. So websites would face lengthy lawsuits if they try to remove content that inspires copycat shooters.

The government simply has nothing to do with dictating what kind of speeches private media companies have to make – as the Supreme Court long ago ruled over newspapers. The same goes for social media sites, according to the judges who blocked the Florida law — all conservative intellectuals with rock-solid ribs.

Laws against content moderation can help populist “conservatives” ignite their base, but if the Supreme Court enacts these laws, the price will be measured in children’s lives.