Is the Texas anti-censoring law a concern for SE sites?

Question

Texas has recently passed a bill that allows users to sue social media sites for "censoring" their content. To quote CNN:

Texas’s law makes it illegal for any social media platform with 50 million or more US monthly users to “block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression.”

The law creates enormous uncertainty about how social media will actually function in Texas, according to legal experts, and raises questions about what users’ online spaces may look like and what content they may find there, if the companies are even able to run their services at all.

Stack Overflow has 100 million+ monthly visitors according to the company itself, with the United States being the top country visiting. I'm not sure about the stats for the rest of the network, but this 2020 blog post mentions something about 400 million visits. It's not inconceivable that the network hits 50 million monthly visits from the United States.

While Stack Exchange / Overflow is explicitly not a social media site, the Texas law defines the term like this:

(5) "Social media website" means a website or application that enables users to communicate with each other by posting information, comments, messages, or images and that:
(i) is open to the public;
(ii) has more than seventy-five million users; and
(iii) has not been specifically affiliated with any one religion or political party from its inception.

Does SE meet those criteria? I think so, but I'm not 100% sure. (If Wikipedia qualifies as "posting information", I don't even want to think about how they're going to handle this.)

The very basis of SE sites relies on moderation and deletion of content that doesn't meet our standards. If users can suddenly sue for their off-topic rants being deleted, that poses a serious problem.

Does this law pose any threat to SE? Is this something we need to be concerned about as it relates to this site?

Answer 1

I'm not a lawyer, nor do I play one on TV. I'm also not an SE employee.

I don't think there's much to be concerned about at present. There's a number of reasons I say this

1. This is a preliminary injunction (i.e. you can't do the thing the lawsuit is over), not a ruling on the merits. The latter would be far more consequential

2. Florida has a similar (but narrower) law which remains on hold, pending a Federal lawsuit. Florida is in a different appeals circuit than Texas

3. There are still legal maneuvers to be had in this case

   Netchoice and CCIA could seek an en banc hearing with all the court's judges or eventually go to the Supreme Court. They could also wait for the trial to play out in US District Court for the Western District of Texas, where Judge Robert Pitman issued the preliminary injunction. Pitman found that the Texas law "compels social media platforms to disseminate objectionable content and impermissibly restricts their editorial discretion" and that the law's "prohibitions on 'censorship' and constraints on how social media platforms disseminate content violate the First Amendment."

   For those unfamiliar with the US legal system, the judge hearing the case issued the stay. An appeals court panel of three judges heard the appeal over the stay and overturned it without comment. The plaintiffs can ask all the judges of that circuit to reconsider (called an en banc hearing) or appeal directly to the Supreme Court.

4. Nobody knows what violations or enforcement would look like. The US has strong protections for free speech and... well... when you try to find someone (or anyone) who knows how this will play out you find a lot of comments like this

   No one—not lawyers, not judges, not experts in the field, not even the law’s own sponsors—knows what compliance with this law looks like.

My personal $0.02 here is that if the 5th Circuit (who lifted the injunction) won't review it en banc, the Supreme Court likely will, and it's hard to see them not reinstating the original stay. I mean recent cases like this one have consistently reiterated the US Federal courts view laws restricting speech like this very dimly.

So now what?

To be honest, even if the law gets upheld (which seems unlikely), we'll almost certainly have to wait until Texas finds SE has run afoul of the law in some capacity and orders SE to stop. The law is too vague on a number of points to even suggest something like "Just don't do X we'll be OK". At that point, you absolutely will have to have SE legal involved.