The Technology 202: The future of social media could be decided by the Supreme Court

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Good morning and TGIF! We’re filling in for Cristiano today. Twitter shares fell this morning after Elon Musk tweeted that his bid to buy the company was temporarily on hold. Here’s our colleeagues’ must-read story.

Below: Lawmakers want tech companies to archive potential war crimes in Ukraine, and U.S. cities are considering reversing their facial recognition bans. But first:

The future of social media could be decided by the Supreme Court

Unhappy with big social media platforms’ content moderation policies, which they often call censorship, Republican leaders in Texas, Florida and other states have been busy drafting and passing state laws that, if upheld and enforced, would upend the entire industry. 

The Texas law, for instance, would bar companies like Facebook and Twitter from banning users or limiting their posts based on “viewpoint” — a standard so ill-defined, industry and legal experts say it would make content moderation at scale almost impossible. 

First Amendment experts widely panned both Florida’s and Texas’s laws as unconstitutional, while tech giants assumed courts would strike them down before they took effect. 

Those hopes were dashed late Wednesday, when the Fifth Circuit Court of Appeals lifted a temporary injunction on the Texas law, allowing it to go into effect while its substance continues to be litigated in a lower court. 

The law, signed by Texas Gov. Greg Abbott (R) in September, allows individuals and the state attorney general to file lawsuits against social media companies with more than 50 million monthly active users in the United States, such as Facebook and Google’s YouTube, if they believe they were wrongfully banned or censored. The law also requires the platforms to build a complaint system, in which people could challenge companies’ decisions to remove content or flag illegal activity. 

Industry trade groups NetChoice and the Computer and Communications Industry Association, which represent companies like Facebook, Twitter and Google, argued in court that the law violates the First Amendment, which limits the government’s power to tell private entities what to publish and what not to publish.

The Fifth Circuit’s surprising move has left companies and legal minds “scratching their heads,” said Eric Goldman, professor of law at Santa Clara University School of Law. “I think everyone’s kind of in shock about this. Everyone’s trying to figure out both what happened and what’s next.”

Meanwhile, Texans who have had their accounts suspended or their posts taken down can begin suing platforms immediately.

Social media platforms should expect an alleged victim to come forward and file a lawsuit to test it, said Elizabeth Banker, vice president of legal advocacy at Chamber of Progress, which counts Facebook, Twitter and Google as financial supporters. 

“I think that the big concern … is that now not only can the Texas AG start filing suits, but the general public can,” Banker said.  “So everybody who thinks they have been canceled now has access to the courts.”

The legal battle will almost certainly continue, but it’s unclear what the platforms will do in the meantime.

At this point, the platforms essentially have two options, Goldman said. One is to try to comply with the law the best they can. “But nobody’s really discussing that,” he added, “because it’s not possible. The law was written in a way that’s really not tenable for anyone.” 

Social platforms are bound by laws that make certain types of speech illegal, but there’s no practical way to comply without also taking down content that could get them sued under the Texas law.

The other option, Goldman said, is to essentially pull the plug on Texas, barring Texas residents from their platforms altogether. But Texas’s law includes language that attempts to prohibit that, too. 

“The way the law is written is that it also protects the ability of people inside Texas to receive communication,” Banker said. “So what it is essentially trying to do is to reach into other jurisdictions and say that the platforms can’t remove speech based on viewpoint in any other jurisdiction.” 

Tech companies would have a hard time simply cutting off their services to Texans even if they decide that’s their best option, Banker added. For starters, it can be hard to identify where individual users are at any given point.

A state forcing platforms to do business there is almost certainly unconstitutional, Goldman added. But then he thought the rest of the law was unconstitutional as well, and that’s still standing for now.

Experts say the battle now appears destined to end up, one way or another, at the Supreme Court.

One justice, Clarence Thomas, has already suggested in an opinion that social media companies should have to play by the same rules that phone companies do, acting as “common carriers” for anything anyone wants to say. The question of whether the court accepts the case may come down to how many of the other conservative justices Thomas can convince to endorse an expansion of state power into the private sector.

Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, said these cases are about more than just how tech companies craft their content moderation policies. They’re about whether the government can usurp the power from private firms to dictate who can say what online.

“My deeper concern with Texas’s arguments here is that the argument they’re making about the First Amendment would give governments really broad power to manipulate and censor public discourse,” Jaffer said. “Their argument is essentially that social media platforms have no First Amendment rights to assert. If you accept that proposition, then there’s really no regulation that Texas couldn’t pass with respect to social media.”

Conservatives have racked up followers since Twitter accepted Musk’s bid

Right-leaning accounts and Republican members of Congress saw a surge in Twitter followers while their Democratic counterparts’ followings flatlined, Cat Zakrzewski, Naomi Nix, Jeremy B. Merrill and Madison Dong report. The data is an early indication that Elon Musk’s vision as a “free speech absolutist” could transform who uses the platform.

“It definitely says something about the possible future of Twitter,” said Darren Linvill, an associate professor at Clemson University’s Media Forensics Hub. “You’re going to see a spike in conservative users.” 

Twitter spokesman Trenton Kennedy said the company is looking into the changes. “While we continue to take action on accounts that violate our spam policy which can affect follower counts, these fluctuations appear to largely have been a result of an increase in new account creation and deactivation.” NBC News first reported early changes in conservatives’ follower counts.

High-ranking House Democrats ask tech companies to archive potential war crimes in Ukraine

The letters to the chief executives of Facebook parent Meta, TikTok, Twitter and YouTube call on the companies to preserve and archive the content, and to “flag or mark content as containing potential evidence of war crimes and other atrocities,” NBC News’s Ben Collins reports. The lawmakers said in the letters that archived materials could be used in war crimes trials.

The letters were sent by House Oversight Committee Chairwoman Carolyn B. Maloney (D-N.Y.); House Foreign Affairs Committee Chairman Gregory W. Meeks (D-N.Y.); Rep. Stephen F. Lynch (D-Mass.), who chairs the Oversight Committee’s national security panel; and Rep. William R. Keating (D-Mass.), who chairs the Foreign Affairs Committee’s Europe panel. Facebook, TikTok, Twitter and YouTube didn’t respond to NBC News’s request for comment.

U.S. cities and states are looking at reversing facial recognition bans

Virginia will remove its ban on local police’s use of the technology in July, and California and New Orleans could follow, Reuters’s Paresh Dave reports. The reversals come “amid a surge in crime and increased lobbying from developers,” Dave writes.

Critics say facial recognition technology is less effective at identifying people of color. In 2019, a federal study found that the technology misidentified people of color more often than White people. But the National Institute of Standards and Technology has found that the technology has increased in accuracy, Dave reports.

The ousting of Twitter consumer product chief Kayvon Beykpour during his paternity leave didn’t sit well with some Twitter users. Protocol’s Megan Morrone:

Seven Seven Six founder Alexis Ohanian, who co-founded Reddit:

Twitter CEO shakes up his leadership team — again (Elizabeth Dwoskin, Will Oremus and Gerrit De Vynck)

Leaked memo reveals Apple’s anti-union talking points for store managers (Motherboard)

Sony PlayStation staff fume over CEO’s abortion comments (Bloomberg)

DOJ loses bid to sanction Google for withholding documents (Bloomberg)

Anonymous social media app Yik Yak exposed users’ precise locations (Motherboard)

U.S. SEC’s Peirce sees ‘movement’ on stablecoin regulations (Reuters)

Instagram feud fuels ‘Wagatha Christie’ libel case (The New York Times)

  • Airbnb has announced that 22 organizations have joined its Trust and Safety Advisory Coalition, which will advise the company on its policies, products, employee training and other issues.
  • The Atlantic Council’s Digital Forensic Research Lab hosts an event on content moderation amid the war in Ukraine on Wednesday at 11 a.m.

Thats all for today — thank you so much for joining us! Make sure to tell others to subscribe to The Technology 202 here. Get in touch with tips, feedback or greetings on Twitter or email