The Fifth Circuit’s Ruling Is Layered With Confusion
Plus our takes on the FTC, complexity, and more
A debate rages about the best number of layers. We’re talking, naturally, about tres leches, the delicious dessert whose name translates to “three milks.” The cake itself isn’t layered, but it’s soaked in three types of milk, thus creating layers of evaporated milk, condensed milk, and heavy cream. But some have added more to what others insist was already a perfect product. Irresponsible or innovative? It could be just a question of taste.
Some debates have clearly been settled—just look at seven-layer dip. Invented in Texas in the 70s, the recipe grew popular when it was first widely published in Family Circle magazine in 1981. Were its layers as hotly debated as the tres leches debates of today? Were those pre-internet times just simpler and better? We may never know… But we’ll keep investigating. We hear that the layers go up to a thousand in France.
Fifth Circuit. A divided panel of the Fifth Circuit upheld Texas’s H.B. 20, a broadly written law affecting much about social media. Berin analyzed the decision in another thread on Twitter and joined Ari and Corbin in dissecting the opinion in a Twitter Space. Law.com quoted Ari about it on Friday: “It astounds me that the court would fall for that completely bogus argument.”
Most of the coverage has focused on H.B. 20’s content moderation rules, which require platforms to carry speech against their will. But the decision also goes astray in upholding H.B. 20’s transparency rules, which compel platforms to disclose large amounts of information about how they moderate content, as Corbin explained in a Twitter thread. Our work was also quoted in Washington Post’s Tech 202 newsletter (paywall), Gizmodo, Grid News, and The Register.
Content Moderation. This week, after two false starts, the Senate Judiciary Committee finally sent the Journalism Competition and Preservation Act to the Senate floor. Berin tweeted the short markup. Senator Alex Padilla (D-CA) ably summarized concerns we’ve raised about the bill in two letters joined by leading legal academics, and mentioned potential amendments—but the Committee did not address them. So the bill remains, as we’ve warned, a mandate that tech platforms must pay for content they abhor. JCPA may also be a must-carry mandate, despite the latest amendments to prevent that.
FTC. At last week’s FTC meeting, Berin urged the Commission to take a focused approach to “dark patterns.” Law360 (paywall) quoted him: some so-called dark patterns might be worth investigating as unfair or deceptive practices—but not until the Commission “gets specific about the kinds of questions [it] will have to answer in any enforcement action it brings.” Our remarks from this month’s FTC forum on privacy rulemaking were also quoted twice by MediaPost (paywall).
Podcasts. On the latest Tech Policy Podcast, Corbin was joined by Dirk Auer, director of competition policy at the International Center for Law & Economics. They discussed European antitrust law and how it applies to American companies. Ari appeared on the Jane Q. Public podcast discussing the role of social media in American culture.
Complexity. Last week, Corbin published an essay in City Journal on “sludge”—the various forms of red tape accumulating across society. Last Friday, RealClearPolitics picked the piece up and syndicated it. This week, Corbin discussed the piece in an interview on Chicago’s Morning Answer radio program. Watch that segment here. Promote on Twitter here.