Listening to the oral arguments on Texas's social media law and ughhhhhhhhhhhhhhhhhh
One of the judges just conflated "interactive computer service" with "internet provider"
One of the judges just conflated "interactive computer service" with "internet provider"
The same judge does not seem to recognize Twitter or Facebook as websites.
Another seemed surprised that Twitter could wake up one day and decide to ban all LGBT speech, and then asked why Verizon's phone business, a common carrier, can't decide to block individual phone calls based on the speech expressed in those calls.
The hearing has wrapped. It's obviously foolish to predict what the court will do but the questioning seemed to reveal a poor grasp of the basics underlying the case.
On the Verizon point, there was a whole lot of yammering about past net neutrality litigation that should have produced an easy answer to this but somehow they never got there. The answer being, websites are not regarded as common carriers
https://twitter.com/b_fung/status/1523684854763864064
Only at the end of the hearing did one of the judges correctly observe that Section 230 is "irrelevant" to the question of whether Twitter is exercising a First Amendment right when it moderates content.
Whether Twitter's moderation activity is protected by the 1A is the basis for the injunction written by the lower court and that is being challenged before the appellate court.
I am amazed that the appellate court barely touched on that question in 40 minutes of argument.
I am amazed that the appellate court barely touched on that question in 40 minutes of argument.
I'm going back through my audio recording to find some of these amazing exchanges. Here's one in which Judge Oldham needs to be reminded of the 1A limitations on government-compelled speech and also discovers the arbitrary power of private platforms. 
And here's the exchange on Verizon. As I understand it, the reason Verizon cannot do what Oldham is proposing — and yet Twitter can — is precisely because Verizon has common carrier obligations in its phone business (but not its broadband business!) and Twitter does not.
And here is the exchange on whether Twitter is even a website at all, and if it is, whether it is covered by Section 230.
This is insane. The fact that websites like Twitter *are* covered by 230 is the entire reason why there's a whole movement underway to change or repeal 230!
This is insane. The fact that websites like Twitter *are* covered by 230 is the entire reason why there's a whole movement underway to change or repeal 230!
Having to literally re-litigate this stuff, poorly, in order to have a hope of reaching the fundamental question of whether Twitter has a First Amendment right to moderate its own platform does not offer reassurance in the 5th Circuit's ability to rule competently in this matter.
I just… GAHHH
Just as an aside, this seems to me a direct consequence of the appification of the web and the siloing of information into private warehouses. People really forget that services operate on top of websites!
https://twitter.com/b_fung/status/1523684765303455744
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