Thread by @daphnehk

The S Ct will review the must-carry provisions of the TX and FL laws, and the requirements for "individualized notice" to users of content moderation decisions, but not other transparency requirements in the laws.

It says cert is for Questions 1 and 2 in the SG's brief. 1/

https://twitter.com/mjs_DC/status/1707750080097255842

What statutory provisions does that actually encompass? The SG brief says it includes Texas's appeals provision, too. The Texas statutory sections it mentions as part of Q2 are 120.103 and 120.104, unless I am missing something. 2/

Here is my annotated copy of the Texas law, BTW. 3/
docs.google.com/document/d/1DP…

The SG's brief does not cite another section of the law that seems like it should be in scope if the S Ct is reviewing Texas's notice and appeal requirement. Section 120.101 requires platforms to build a portal to track the status of appeals -- like tracking a package. 4/

That's a pretty stupid amount of work for rather little benefit. And since the SG's reasoning is that notice/appeal burdens platforms every time they make an editorial decision, and thus chills content moderation, building and maintaining the portal seems relevant. 5/

The SG's brief also does not mention Texas's weird disparate for notices alleging that content is ILLEGAL, rather than TOS-violating. For users whose content is removed based on those allegations, there is no notice and appeal. 6/

If an accuser alleges that content is illegal, then platforms must evaluate the claim within 48 hours. And then... not do anything in particular. The law is silent on this. I have a big annotation in my public copy of the law digging into whether platforms even CAN remove. 7/

Probably platforms can remove content identified in these notices of illegality, without triggering the viewpoint-neutrality rule and having to take down all posts that are somehow of the opposite viewpoint? But the law is so badly drafted it's actually a messy question. 8/

I guess the Court can pick and choose which of these provisions are in scope, beyond the 120.103 and 120.104 rules specifically called out in the SG's brief. 9/

The Court's reasoning about the notice and action mandates will likely be extremely relevant for the other transparency rules that are not under review. So can compliance with those be stayed while the case is pending? 10/

If the 1st Am problem with notice/appeal is about burden on editorial acts, lots of the other mandates (like vastly expanded transparency reports) are hell of burdensome.
If the 1st Am issue is about the scope of the Zauderer case, that 100% impacts those other mandates, too. 11/

My article about the 1st Am issues with the TX and FL transparency mandates is here.

I have an almost-published final version pending in a journal, and will presumably now need to revise it... 12/papers.ssrn.com/sol3/papers.cf…

Please, please do not fall prey to the "but platforms do this already under the DSA" logic employed by the 5th Circuit. PLEASE. 13/

The "they already do this" logic is
1. Wrong factually. This expands volume & mandates are not the same
2. MASSIVELY favors big incumbents who've invested in EU already
3. Makes U.S. 1st Am protections change depending on speech compulsions in countries without 1st Am rules. 14/

I want transparency from platforms. I think laws making that transparency happen can be drafted in a constitutional manner. These are NOT THOSE LAWS. These are a sloppy, wasteful mess that will let TX and FL change platforms' actual speech rules. 15/15