How a single Texas ruling could change the web forever
By Charlie Warzel, The Atlantic (paywalled), September 28, 2022
Mr. Warzel writes for the New York Times and is also responsible for the "Galaxy Brain" newsletter. Most experts are saying the Fifth Circuit Court of Appeals ruling in the NetChoice v. Paxton lawsuit, along with the law (Texas House Bill 20) that it upheld on appeal, clearly violates the First Amendment and would be impossible to enforce, comply with, or even interpret. (The law/decision is essentially just the latest right-wing hissy-fit over Trump still being banned from Twitter.)
Nevertheless this article tries to paint a picture of how the internet would look if the law were to be taken seriously, though it sort-of assumes Texas is the only state whose government will ever be fascistic enough to put such a law into effect. It also mentions Wikipedia, though I suspect it's a spurious mention because Wikipedia would never meet the law's 50-million active users threshold, no matter how they might rationally define "active." But who knows what a Republican-dominated court would decide at this point, given that they're obviously now willing to wipe their collective asses with the Constitution and throw it into the toilet.
To give me a sense of just how sweeping and nonsensical the law could be in practice, [Techdirt founder Mike] Masnick suggested that, under the logic of the ruling, it very well could be illegal to update Wikipedia in Texas, because any user attempt to add to a page could be deemed an act of censorship based on the viewpoint of that user (which the law forbids). The same could be true of chat platforms, including iMessage and Reddit, and perhaps also Discord, which is built on tens of thousands of private chat rooms run by private moderators. Enforcement at that scale is nearly impossible. This week, to demonstrate the absurdity of the law and stress test possible Texas enforcement, the subreddit r/PoliticalHumor mandated that every comment in the forum include the phrase “Greg Abbott is a little piss baby” or be deleted. “We realized what a ripe situation this is, so we’re going to flagrantly break this law,” a moderator of the subreddit wrote. “Also, we like this Constitution thing. Seems like it has some good ideas.”
What is the endgame of a law that is both onerous to enforce and seemingly impossible to comply with? [Daphne] Keller offered two theories: “I think passing this law was so much fun for these legislators, and I think they might have expected it would get struck down, so the theater was the point.” But she also believes that there is likely some lack of understanding among those responsible for the law about just how extreme the First Amendment is in practice. “Most people don’t realize how much horrible speech is legal,” she said, arguing that historically, the constitutional right has confounded logic on both the political left and right. “These legislators think that they’re opening the door to some stuff that might offend liberals. But I don’t know if they realize they are also opening the door to barely legal child porn or pro-anorexia content and beheading videos. I don’t think they’ve understood how bad the bad is.”
NetChoice v. Paxton is likely an opening salvo in a long, complex, and dangerous legal battle. But Keller offered up a more troubling possibility: This law amounts to a legal speed run that could drastically alter First Amendment law in such a way as to quickly end the battle. “The Supreme Court could strike this down but offer a framework for future litigation that opens the door to new kinds of laws we’ve never seen before,” she said. “Who knows what rule set we’ll be playing with after the Supreme Court weighs in.”
