Did Twitch Violate Texas’ Social Media Law By Removing Mass Murderer’s Live Stream Of His Killing Spree?

As you've no doubt heard, on Saturday there was yet another horrific shooting, this one in Buffalo, killing 10 people and wounding more. From all current evidence, the shooter, a teenager, was a brainwashed white nationalist, spewing nonsense and hate in a long manifesto that repeated bigoted propaganda found in darker corners of the internet... and on Fox News' evening shows. He also streamed the shooting rampage live on Twitch, and apparently communicated some of his plans via Discord and 4chan.

Twitch quickly took down the stream and Discord is apparently investigating. All of this is horrible, of course. But, it seems worth noting that it's quite possible Twitch's removal could violate Texas' ridiculously fucked up social media law. Honestly, the only thing that might save the two companies (beyond the fact that it's unlikely someone would go to court over this... we think) is that both Twitch and Discord might be just ever so slightly below the 50 million average monthly US users required to trigger the law. But that's not entirely clear (another reason why this law is stupid: it's not even clear who is covered by it).

A year ago, Discord reported having 150 million monthly active users, though that's worldwide. The question is how many of them are in the US. Is it more than a third? Twitch apparently has a very similar 140 million monthly active users globally. At least one report says that approximately 21% of Twitch's viewership is in the US. That same report says that Twitch's US MAUs are at 44 million.

Of course the Texas law, HB20, defines user quite broadly, and also says once you have over 50 million in a single month you're covered. So it's quite possible both companies are covered.

Focusing on Twitch: taking down the streamer's account might violate the law. Remember that the law says that you cannot censor" based on viewpoint. And anyone in the state of Texas can bring a lawsuit claiming they were deprived of content based on viewpoint. Some will argue back that a livestream of a killing spree isn't about viewpoint, but remember, this idiot teenager made it clear he was doing this as part of his political views. At the very least, there's a strong argument that any effort to take down his manifesto (if not the livestream) could be seen as violating the law.

And just to underline that this is what the Texas legislature wanted, you may recall that we wrote about a series of amendments that were proposed when this law was being debated. And one of the amendments said that the law would not block the removal of content that directly or indirectly promotes or supports any international or domestic terrorist group or any international or domestic terrorist acts." AND THE LEGISLATURE VOTED IT DOWN.

So, yes, the Texas legislature made it abundantly clear that this law should block the ability of website to remove such content.

And, due to the way the law is structured, it's not just those who were moderated who can sue, but anyone who feels their ability to receive the expression of another person" was denied over the viewpoint of the speaker. So, it appears that a white nationalist in Texas could (right now) sue Twitch and demand that it reinstate the video, and Twitch would have to defend its reasons for removing the video, and convince a court it wasn't over viewpoints" (or that Twitch still has fewer than 50 million monthly average users, and that it has never passed that threshold).

Seems kinda messed up either way.

Of course, I should also note that NY's governor is already suggesting (ridiculously) that Twitch should be held liable for not taking the video down fast enough.

Gov. Hochul said the fact that the live-stream was not taken down sooner demonstrates a responsibility those who provide the platforms have, morally and ethically, to ensure hate cannot exist there. She also said she hopes it will also demonstrate a legal responsibility for those providers.

The fact that this act of barbarism, this execution of innocent human beings could be live-streamed on social media platforms and not taken down within a second says to me that there is a responsibility out there ... to ensure that such hate cannot populate these sites."

So, it's possible that Twitch could face legal fights in New York for being too slow to take down the video and in Texas for taking down the video at all.

It would be kind of nice if politicians on both sides of the political aisle remembered how the 1st Amendment actually works, and focused the blame on those actually responsible, not the social media tools that are used to communicate.