Thread by @jess_miers

Quotes from yesterday's NetChoice opinion, organized by issue, and what I think they mean for the future of Internet regulation🧵

1. Social media platforms are entitled to First Amendment protections.

"To the extent that social media platforms create expressive products, they receive the First Amendment’s protection."

In other words, social media companies are *not* common carriers.

"The principle does not change because the curated compilation has gone from the physical to the virtual world."

"It is no job for government to decide what counts as the right balance of private expression—to “un-bias” what it thinks biased, rather than to leave such judgments to speakers and their audiences. That principle works for social-media platforms as it does for others."

"We have repeatedly faced the question whether ordering a party to provide a forum for someone else’s views implicates the First Amendment. And we have repeatedly held that it does so if, though only if, the regulated party is engaged in its own expressive activity..."

"However imperfect the private marketplace of ideas, here was a worse proposal—the government itself deciding when speech was imbalanced, and then coercing speakers to provide more of some views or less of others."

Implications:
--Online services enjoy the full extent of 1A protections.

--States cannot simply classify online services as common carriers in an effort to strip their 1A protections.

--Laws that touch the expressive capabilities of services must face strict scrutiny.

2. Content moderation is an expressive activity.

"the major platforms cull and organize uploaded posts in a variety of ways."

"the current record indicates that the Texas law regulates speech when applied in the way the parties focused on below—when applied, that is, to prevent Facebook (or YouTube) from using its content-moderation standards to remove, alter, organize, prioritize, or disclaim posts"

"Deciding on the third-party speech that will be included in or excluded from a compilation—and then organizing and presenting the included items—is expressive activity of its own. And that activity results in a distinctive expressive product."

"Like them or loathe them, the Community Standards and Community Guidelines make a wealth of user-agnostic judgments about what kinds of speech, including what viewpoints, are not worthy of promotion."

"The individual messages may originate with third parties, but the larger offering is the platform’s. It is the product of a wealth of choices about whether—and, if so, how—to convey posts having a certain content or viewpoint."

"The choice of material,” the “decisions made [as to] content,” the “treatment of public issues”—“whether fair or unfair”—all these “constitute the exercise of editorial control and judgment.”

"That those platforms happily convey the lion’s share of posts submitted to them makes no significant First Amendment difference."

Implications:
-content moderation is protected speech.

-platforms have a variety of tools they use to moderate and display third-party content. All of those tools are expressive.

-state laws that interfere with any of these tools or editorial decisions are unconstitutional.

3. Algorithmic curation is also protected expression.

(Stay with me. Many folks have claimed the opinion says otherwise. But read carefully, SCOTUS absolutely protects the algorithmic curation process. and it's not even a close call).

"In constructing certain feeds, those platforms make choices about what third-party speech to display and how to display it.

"[the Texas law] prevents a platform from compiling the third-party speech it wants in the way it wants, and thus from offering the expressive product that most reflects its own views and priorities."

"A user does not see everything—even everything from the people she follows—in reverse-chronological order. The platforms will have removed some content entirely; ranked or otherwise prioritized what remains; and sometimes added warnings or labels."

"So too we have held, when applying that principle, that expressive activity includes presenting a curated compilation of speech originally created by others."

"The key to the scheme is prioritization of content, achieved through the use of algorithms. Of the billions of posts or videos (plus advertisements) that could wind up on a user’s customized feed or recommendations list, only the tiniest fraction do."

"The platforms write algorithms to implement those standards—for example, to prefer content deemed particularly trustworthy or to suppress content viewed as deceptive (like videos promoting “conspiracy theor[ies]”)."

"When the platforms use their Standards and Guidelines to decide which third-party content those feeds will display, or how the display will be ordered and organized, they are making expressive choices. And because that is true, they receive First Amendment protection."

Implications:
-SCOTUS articulated an impossible test for future government actors: if algorithmic curation is, even in-part, driven by the expressive choices of the private publisher, it is protected.

-all curation algorithms are a reflection of expression. Including AI.

-hence, any state law that attempts to end-run the First Amendment by attacking the service's "design" or "algorithms" will be doomed.

-laws like the New York SAFE Act or Age Appropriate Design codes inherently interfere with how services compile/curate third party content.

.@threadreaderapp unroll