X challenges California’s new transparency law as unconstitutional
techcrunch.com
techcrunch.com
If you're having trouble sympathizing with the civics because the litigant, X, is horrible, and X users are horrible—just flip to a hypothetical where it's the government position that's horrible. Like so: "the DeSantis government of Florida has mandated social media platforms disclose statistics about LGBT content on their platforms". Does this make it easier to see how (0) indirect laws about speech (i.e. mandatory statistics) have direct chilling effects on that speech, and (1) "mere data-collection" about speech doesn't apparently serve any legitimate government function? (Political signalling isn't a legitimate government function). And: suppose the mandatory forms you have to fill out for DeSantis Transparency describe the LGBT content field in offensive, homophobic language. Could you then consider the X attorneys' argument that filling out forms can be an unconstitutional form of compelled speech?
(FYI, regarding DeSantis, I've never seen him describe LGB as offensive. I have seen his government describe literal porn, some literally describing pedophile behavior, in elementary school libraries as bad. He provides examples of the exact thing he is against and I've never seen him try to overreach that principle. I also agree that literal porn should not be in elementary schools.)
Not sure if this is an actual legal argument, but I don't see at all how the latter follows from the former - I think it would in fact be really bad if it did.
Statistical data collection isn't just necessary for the government to implement its current obligations, it's also necessary for policymakers (i.e. parliaments) to know which laws should be changed and which new government functions might be necessary.
I you don't like this for partisan reasons, it's easy to flip this around as well: Imagine some hypothetical federal government going all in on "no borders, no nations" and making it illegal for states to stop people at the US-Mexican border at all. By your argument, it would also automatically become illegal to even just monitor the border and count how many illegal immigrants are crossing.
Then later, when opposition and advocacy groups want to challange the federal government's policy, the government party can just say "the policy seems fine, we don't have any data that would show any sudden influx of illegal immigrants, so why should we change it?"
> the DeSantis government of Florida has mandated social media platforms disclose statistics about LGBT content on their platforms
There is an important distinction between data that makes someone personally identifiable and data that does not.
Not an expert in US domestic politics, but I believe that progressives don't generally have a problem with broad statistical data collection about marginalized groups - on the contrary, they often use this data for their own arguments, i.e. to show how unequal the distribution of men and women in leadership positions is.
What is a problem is any kind of data that would allow the government (or anyone else really) to individually identify persons from some group. (This includes "pseudonymous" data and very fine-grained statistics, because those can often be deanonymized)
So:
"How many % of SF's population are gay?" -> cool
"How many % of the tenants in Christopher Street are gay?" -> not cool
There's balancing tests like the one in strict scrutiny [0] (IANAL/not actually sure if strict scrutiny applies here: it's just one example of a constitutional test relevant to the First Amendment). This weighs if a law that's potentially unconstitutional serves some important, real purpose that outweighs the tension it imposes on constitutional rights—a "compelling state interest" in the strict scrutiny test.
And there is tension with the First Amendment here. A law that merely "monitors" speech has a tangible chilling effect on the speech that's singled out for surveillance.
It is a crying shame, that we don’t have MORE information, given that everything is on a data base.
If we want to have the least intrusive moderation, we want to actually change minds, and have an actual working “marketplace of ideas”, you need this information.
The concern about a bad actor who decides to impose “transparency” is fatuous - they are going to do it anyway, and they are going to do it exactly the manner you are concerned - with an eye to stifle freedoms.
The point of free speech, is not served by preventing transparency. A market overwhelmed by manipulations, virulence, spam, monopolies - isn’t a working market place.
Transparency will help with figuring out what interventions work, and how effectively.
It would be a way to figure out whether social media is a boon or a bane.
Thats the kind of estimation that ends malign arguments hiding behind an unbounded, flexible definition of free speech.
> content moderation policies and statistics
Can you explain how the law would require them to provide statistics on LGBT content? From the article, it seems like they'd only need to provide statistics on moderating LGBT content, which seems… OK? Also they'd need to publish their stance on LGBT content, which would be "we don't police it".
I don't understand the meaning of this part.
> Moderation of online speech is speech
AFAICT, they're not being forced to moderate. They're being forced to say how they approach moderation. "Not at all" being a valid answer, as far as I understand it.
What is the government's interest in getting this question answered?
They can promise all they want that the info won't be used against you, but it's obvious that they wouldn't be asking if they didn't intend to do anything with it. Thus it would limit how often you insult that person.
> X Corp. is being forced to adopt the State’s politically-charged terms
This is a universal problem around government reporting requirements. How many times have I been asked (indirectly by the government) to declare my "race" and not been presented with the obvious option of "human"?
So, X seems to have identified a sliver of controversy in what I think is otherwise an appropriate topic of public concern. The reason I think it's an appropriate topic is because Section 230 immunizes the supposed expressive content of X's editorial policy so ... X shouldn't have as free rein to run that program in secret according to unknown whims.
This particular statement by X doesn't get at the root of the legal matter at issue. Statistics about constitutionally protected behavior are not analogous to statistics dealing with demographic information.
> The reason I think it's an appropriate topic is because Section 230 immunizes the supposed expressive content of X's editorial policy so ... X shouldn't have as free rein to run that program in secret according to unknown whims.
They're immune from liability related to how they moderate content, therefore they have to disclose information to the government about how they moderate content? That sounds an awful lot like they're back to being liable.
The First Amendment protects the expressive content of X's editorial policy.
- "X shouldn't have as free rein to run that program in secret according to unknown whims"
The First Amendment protects secretive editorial policies run according to editors' whims.
They're basically little mob bosses. Its a completely unsustainable relationship wherever it exists.
They're against the government mandating it, which they argue is unconstitutional.
Personally, I agree. This is the first step towards totalitarian governments. Probably anyone who understood a bit of human history would be terrified about this Californian initiative.
"He had earlier put up a poll with a variety of options, asking whether or when he should reinstate the journalists’ accounts. When a plurality of respondents voted to restore the accounts immediately, he deleted the poll and started a new one with fewer options."
Citation needed, I guess?
I've seen this argument so many times. I like something, so we have to make a law to force it to exist. Or, I don't like something, so we have to make a law to make it illegal.
Unless there is a monopoly, and social networks certainly aren't one, there's no reason to force them to do anything.
So why are we forcing social networks to do a lot of things already today: We force them to remove illegal content, remove content that is not suited for minors, moderate content that is traumatic, protect people's privacy etc?
I don't really understand? Is your point that we should not be doing this as well? Is your fear that the state of California will moderate Twitter?
> There are a lot of things I think should exist but don’t want there to be laws enforcing that fact.
Can you give some examples? I can't think of a single social network that is not moderated, even 4Chan is to some extent. Maybe on the darknet? But even then moderation exists I assume.
So it seems clear to me that there should be some minimum standard in moderation, which should be enforceable.
It's kind of ironic that we discuss this on a heavily moderated platform, which is both moderated by a centralised authority as well as the users themselves.
Also, again and again: the fact that all platforms you know are moderated does not mean that this should happen by law.
Clearly, there are people who want to use sites with minimal moderation, eg 4chan.
I don’t want to use 4chan myself, because of its lack of moderation, but why should I care if others do want to use 4chan?
I think OP’s point is pretty clear - just because you don’t like something doesn’t mean it should be illegal.
The US is full of restrictions on speech and has been for its entire existence.
I fail to see how this can be seen as a free-speech issue - it's not restricting speech nor, as per their other argument, is it "a form of compelled speech". Instead, it's simply making their policies, whatever they are, public.
If Xitter wants to promote free speech and not moderate anything, it can, it just needs to say that's what it's doing.
If Xitter wants to have free speech, but follow the law and remove anything illegal, it can, it just needs to document that.
If Xitter wants to moderate stuff, it totally can, it just needs to say what it's moderating, and how.
The reason they're objecting to this, almost certainly isn't to do with free speech, rather the opposite - they will want to retain the ability to moderate things they don't like out of existence whilst pretending that they absolutely don't moderate anything because then they can claim the exemptions that allow them not to be responsible for their moderation.