Bogus Fears of Censorship Could Spell the End of Content Moderation

Hi, everyone. Glad to hear from Joe Biden that the pandemic is over. But who’s going to tell the coronavirus?

The Plain View

The linguist George Lakoff is famous for his theory of “framing” in political speech. The words people use to describe an issue can end a debate even before the speechifying begins. “Framing is about getting language that fits your worldview,” he once explained. “The ideas are primary and the language carries those ideas, evokes those ideas.”

I thought about Lakoff when I read the US Court of Appeals for the Fifth Circuit’s ruling regarding the Texas legislature’s House Bill 20, signed by Governor Greg Abbott last year. The law limits how technology platforms can moderate speech, essentially banning companies like Meta, Google, and Twitter from removing or de-ranking content on the basis of the viewpoint it expresses. Two industry associations, NetChoice and the Computer & Communications Industry Association (CCIA), challenged the law, as they had similar legislation in Florida. A lot of complicated appeals and challenges ensued. In Florida, the courts blocked the law, and the state government is appealing to the Supreme Court. But after an appeals court ruling in Texas stopped the law, a higher court, the US Fifth Circuit, intervened, saying that it was constitutional and could be enforced. Then the Supreme Court stepped in. It prevented the law from taking effect, and asked the Fifth Circuit to reconsider its earlier decision.

The Fifth Circuit didn’t budge. Writing for a two-to-one majority last week, Judge Andrew Oldham—a Trump appointee whose previous post was general counsel for Texas governor Greg Abbott—produced a ruling that reads more like an Infowars dispatch than a reasoned decision. Near the top he rams a contemptuous stake in the ground: “Today,” he writes, “we reject the idea that corporations have a freewheeling First Amendment right to censor what people say.”

Okay, put aside the judge’s belief that a “freewheeling” use of a basic right is something unsavory. (Isn’t that what rights are for?) The key word here is “censor.” It’s the framing from hell. “Censorship” is the term that Republican legislators and pundits often use to describe ordinary content moderation—the act of a company choosing what kind of speech it wants users to see on its platform. Using that word is a political tactic, intended to cow platforms into allowing speech that violates their policies—things like Covid misinformation, hate speech, and election denial—that more often come from the right than the left. Indeed, the text of HB 20 adopts that terminology, saying that “a social media platform may not censor a user.” But this framing is bogus. Censorship is something that governments do, not private parties policing their own websites. “It’s Orwellian that the government says that private businesses’ exercise of editorial discretion is censorship,” says CCIA president Matt Schruers.

Nonetheless, Oldham locks in on the term as if it’s the only way to describe how private platforms determine how to maintain civility and safety. The words “censor” or “censorship” appear 143 times in his ruling. “The platforms are not newspapers,” he writes. “Their censorship is not speech.” Meanwhile, Oldham thinks it’s perfectly fine for the government to tell a private company what speech it can or cannot host—which sounds a lot like, you know, censorship. The kind that the First Amendment prohibits. The Fifth Circuit ruling means that the law will take effect on October 7, unless further legal rulings put it on hold.