Content moderation on social networks is defeated in US court decision

Last Friday (16), an appeals court ruled in favor of a law in the US state of Texas that vetoes the banning or censorship of content posted by users on social networks for reasons “point of view”, limiting content moderation by big technology companies (“Big Tech”). Losers in the ruling include Meta, which owns Facebook and Instagram, Twitter and Alphabet, which owns Google.

By two to one, the New Orleans Fifth Circuit Court of Appeals rejected the idea that technology companies would have a right protected by the First Amendment of the US Constitution, which deals with the right to freedom of expression, to censor what their users say when what they say is opinion.

In the majority opinion of the judges, social media platforms offered “a strange inversion of the First Amendment”. The amendment protects every person’s right to free speech, but the platforms argued that “buried somewhere in a person’s referred right to free speech would be an unreported right of a company to gag the expression”, reads the decision, with this emphasis.

The judges also mention the attitude of Twitter of having kicked the ladder of freedom of expression after the success: in the beginning, the social network described itself as “the free speech wing of the free speech party”, but after establishing itself as a monopolist of “the modern public square”, the social network decided to turn around and ban expressions on topics such as LGBT.

This is the first time that a US federal court has so explicitly mentioned the double position of social networks, which enjoy the privileges of neutral platforms — exempt from legal responsibility for the content published on them — but want to act as publishers of content, with the right to remove what not please them.

The Texas law against censorship of social networks has a series of reservations. A platform may still censor speech if provided for by federal law, if it is to prevent the sexual exploitation of children and protect survivors of sexual abuse from ongoing harassment, if it is a direct incitement to criminal activity or specific threats of violence against a person or group on account of their race, color, disability, religion, ancestry, age or sex, in addition to other illegal expressions.

If the social network commits a crime of censorship, the censored user may be compensated and reimbursed for the amount spent on its defense. The law also requires the platform to have clear rules regarding its content moderation and provide information on how a user can report content that breaks the rules. With the defeat in the appeals court, it is possible that the matter escalates to the United States Supreme Court.

In Brazil, President Jair Bolsonaro edited in 2021 a Provisional Measure similar to the Texan law that amended the Marco Civil da Internet and required that the removal of content occur in accordance with legal limitations on expression in Brazil. Severely criticized, the MP was returned by Congress and was converted into a bill whose processing is stalled.

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