No One Has Any Clue How Texas’ Social Media Law Can Actually Work (Because It Can’t Work)

Lots of people are still trying to mentally process the bizarrely confused 5th Circuit ruling that has reinstated Texas' social media content moderation law. I wrote an initial analysis of the ruling here, and then a further analysis of just some of the most egregious problems with it over at The Daily Beast. This week I've been at the TrustCon conference, where multiple people who actually have to implement the law have been repeatedly telling me that they have no idea how anyone even thinks it's possible to follow the law. Because it is, quite clearly, impossible.

The Atlantic's Charlie Warzel released an article asking if this ruling is the beginning of the end of the internet?" which may feel hyperbolic, but at the very least, if the ruling stands, it's certainly the end of the internet as we know it. What comes after that is going to be something quite different. Warzel interviewed me for the piece, among some others, but the key part of the article comes from Stanford's Daphne Keller, noting that it seems unlikely that even Texas legislators who wrote and passed the law have any idea what the law will do:

Keller, of Stanford's Cyber Policy Center, has tried to game out future scenarios, such as social networks having a default non-moderated version that might quickly become unusable, and a separate opt-in version with all the normal checks and balances (terms-of-service agreements and spam filters) that sites have now. But how would a company go about building and running two simultaneous versions of the same platform at once? Would the Chaos Version run only in Texas? Or would companies try to exclude Texas residents from their platforms?

You have potential situations where companies would have to say, Okay, we're kicking off this neo-Nazi, but he's allowed to stay on in Texas," Masnick said. But what if the neo-Nazi doesn't live in Texas?" The same goes for more famous banned users, such as Trump. Do you ban Trump's tweets in every state except Texas? It seems almost impossible for companies to comply with this law in a way that makes sense. The more likely reality, Masnick suggests, is that companies will be unable to comply and will end up ignoring it, and the Texas attorney general will keep filing suit against them, causing more simmering resentment among conservatives against Big Tech.

What is the endgame of a law that is both onerous to enforce and seemingly impossible to comply with? 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."

This is almost certainly true. Remember, the bill's own author once got so angry at me on Twitter that he seemed to imply that he knows that Section 230 pre-empts his entire bill.

So... as it stands we have a bill where the social media companies have no clue how to comply with the bill, and the lawmakers who wrote the bill have no idea how to comply with the bill (and don't seem to much care). The whole thing is just pure nonsense - legislating out of pure spite.

Texas lawmakers don't actually understand any of this. What they wanted was to make big tech" feel bad. But they didn't actually do that either. They just made everyone confused, because no one in their right mind would pass a law that effectively requires all horrible content to remain online in perpetuity.

But that's what Texas lawmakers did.

So, now they're the dog that caught the car, and while they almost certainly don't realize it yet (assuming the Supreme Court doesn't step in and fix things), they're going to find out that they don't actually like their jaws clamped to a car zipping down the highway...