Everything's bigger in Texas
Including tech policy mistakes. After filing our Supreme Court amicus brief in NetChoice v. Paxton, we've been busy sharing our thoughts on the law at hand. Plus, words on broadband, 230, and more.
Before we get to anything else, we are thrilled to announce that Santana Boulton has joined us this week as our newest legal fellow! Santana has been serving as one of our legal interns since January 2021 and has been a vital part of TechFreedom’s ability to provide in-depth legal analysis. As an intern, Santana also wrote a piece explaining that, under the First Amendment, legislation governing algorithms qualifies as compelled speech. Computer code, like any other language, expresses protected speech. As Santana put it, “The state can no more tell a company what code to write than it could tell them what to write in Latin.” Welcome to the team, Santana!
In other news:
Social Media Regulation. Our Supreme Court amicus brief in NetChoice v. Paxton was filed on Tuesday. The case concerns Texas’s HB20, which would require strict viewpoint neutrality for social media platforms—opening them to content that they have long refused to carry, including, but not limited to, instructions on suicide, terrorist propaganda, and material harmful to children. We did a Twitter thread about the brief, and it was mentioned in Ars Technica.
Be sure to check out the recording we made of our Twitter Spaces conversation and accompanying Twitter thread on the issue. Given the event’s popularity, we look forward to hosting more Twitter Spaces events in the future! And don't miss our brief on the underlying First Amendment questions and common carriage—the only amicus brief discussed at oral argument.
Corbin was also quoted in WIRED and Fast Company. “There’s a theory that this is the dog that accidentally caught the car,” he said, given the Texas law’s combination of political popularity, poor drafting, and obvious constitutional difficulties. And he was quoted in a Communications Daily article on HB 20 (paywall), saying, “the fact [the Fifth Circuit] granted the motion to stay means they’re planning to reverse”—potentially setting up a split with the Eleventh Circuit. Lastly he appeared on the Ross Kaminsky show on May 13 to discuss how the left-leaning bias among big tech and social media firms remains a real problem, but sacrificing fundamental freedoms and economic liberty to address it would be a mistake.
Broadband. On Monday, Berin and Jim filed comments on how the FCC should interpret a provision of last year's $1.2 trillion infrastructure bill requiring the Commission to issue rules to “facilitate” equal access to broadband, including “preventing digital discrimination.” Plainly, Congress intended the FCC to help direct federal subsidies towards communities that aren't getting equal access to broadband. To do that, the FCC needs analytical tools that can accurately track deployment and whether it correlates with protected demographic categories. But if Congress had intended to write a sweeping new civil rights law focused on regulation of broadband deployment, it would have done so clearly. It didn’t. Section 60506 lacks the essential feature of every federal civil rights law: an explicit prohibition on discrimination. Check out our press release here, and our Twitter thread here. Our analysis on this issue was also highlighted in Broadband Breakfast.
Section 230. Last week, Andy appeared on The Bullpen with Dr. Rashad Richey to discuss Section 230 and its connection to platforms like Twitter. In the interview, Andy explains that Section 230 should be Elon Musk’s new favorite law because it will be essential for him to successfully carry out his plan for moderating content on Twitter. Andy also clarifies the relationship between Section 230 and the First Amendment.
Future of Social Media. Is Elon Musk’s deal to purchase Twitter falling apart? Sure looks like it. With Musk raising a stink about whether Twitter has more bots than it lets on, it’s starting to look like, yes, Musk may have been trolling Twitter all along. We’ll see. In the meantime, though, the deal continues to spark conversation, and we continue to be deeply involved in the debate. On Monday, Corbin used the Musk deal as a springboard for an essay in Law & Liberty reflecting on conservatives’ relationship to social media. Why, Corbin asks, aren’t conservatives “the ones pushing for more respect, more civility, and more community on the web”?
The next day, in the latest episode of the Tech Policy Podcast, Corbin and I stuck with that theme as we spoke with Nate Hochman, a writer at National Review. After we all agreed that the federal government’s new “Disinformation Governance Board” is a really dumb idea, we launched into a debate about what the Right should hope to get out of the (faltering) Musk deal. Does the Right have any aspirations for social media beyond “owning the libs”? What does it mean to promote free speech in a digital space very different from a traditional “town square”? How do conservatives reconcile their desire for order, community, and tradition with social media’s inherent power to undermine such things? We mix it up. Tune in.
Follow us on Twitter! Corbin @CorbinKBarthold; Bilal @BilalKSayyed; Andy @AndyJungTech; Jason @JasonKuznicki; me (Rachel) @MillionthRachel; Berin @BerinSzoka; Ari @AriCohn.