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Monday, September 19, 2022

Content Moderation in Jeopardy (or: that time the Fifth Circuit cited my platform law scholarship in a really bad decision)

The Fifth Circuit handed down a highly problematic decision end of last week - putting in question all platform content moderation. The court upheld the Texas law that allows the state of Texas and individual Texans to sue companies if they “censor” an individual based on viewpoints or geography by banning them or blocking, removing or otherwise discriminating against their posts.

This law, and a similar Florida law, goes against what content moderation is. The 11th circuit held the similar Florida law unconstitutional and now the path is ripe for a SCOTUS decision. The 5th circuit at some point in its very long decision nods to academics who have been writing about Platform Market Power (citing my work with Ken Bamberger) to conclude that platforms are nothing like newspapers and because of their market dominance do not have the right to decide what content to allow or remove.

Eric Goldman at Santa Clara who is a leading section 230 scholar is planning a thorough post about the decision so be on the lookout for that. Meanwhile, last week too, the Biden administration announced a vague call to reform Section 230 as part of its vague open-ended principles for platforms, rehashing the same old - more privacy, less AI bias. In my forthcoming book, The Equality Machine: Harnessing Digital Technology for a Brighter, More Inclusive Future, I highlight the fallacies of privileging privacy over much needed data collection, and creating a double standard for automated decision-making when so much of human decision-making is biased and flawed. Privacy and anti-bias measures are of course important principles but we need a much richer, comparative advantage analysis to get the policy right.


Posted by Orly Lobel on September 19, 2022 at 05:07 PM | Permalink


“Truth is so obscure in these times, and falsehood so established, that, unless we love the truth, we cannot know it.”-Blaise Pascal

“Oh what a tangled web” has been weaved on the internet.

“Error has no rights”, although it can sometimes serve to illuminate that which we can know is True, due to The Law Of Non-Contradiction.

There is order in Truth as there is order in Love.
“Caritas In Veritate; Veritas In Caritate.”

Posted by: N.D. | Sep 20, 2022 12:04:50 PM

By the way, one may reach the ruling here:


And here to short summary in Jurist:



Posted by: El Roam | Sep 19, 2022 8:33:29 PM

Important issue. Just worth noting, that Section 7 of HB 20, I quote:

".......does not limit censorship of expression that a Platform “is specifically authorized to censor by federal law”; expression that “is the subject of a referral or request from an organization with the purpose of preventing the sexual exploitation of children and protecting survivors of sexual abuse from ongoing harassment”; expression that “directly incites criminal activity or consists of specific threats of violence targeted against a person or group because of their race, color, disability, religion, national origin or ancestry, age, sex, or status as a peace officer or judge”; or “unlawful expression.” Id. § 143A.006.

End of quotation:

What counts, is, generally speaking, limiting censorship, which has to do with viewpoints (emphasizing: viewpoints).

For the rest, we won't stay young no more here.


Posted by: El Roam | Sep 19, 2022 8:30:33 PM

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