Did The 5th Circuit Just Make It So That Wikipedia Can No Longer Be Edited In Texas?

Content Moderation

from the bang-up-job,-andy dept

I wrote up an initial analysis of the 5th Circuit’s batshit crazy ruling re-instating Texas’s social media content moderation law last week. I have another analysis of it coming out shortly in another publication (I’ll then write about it here). A few days ago, Prof. Eric Goldman did his own analysis as well, which is well worth reading. It breaks out a long list of just flat-out errors made by Judge Andy Oldham. It’s kind of embarrassing.

But there is one point in the piece that seemed worth calling out and highlighting. There is something of an open question as to what platforms technically fall under Texas’ law. The law defines “social media platform” as follows:

“Social media platform” means an Internet website or application that is open to the public, allows a user to create an account, and enables users to communicate with other users for the primary purpose of posting information, comments, messages, or images. The term does not include:

(A) an Internet service provider as defined by Section 324.055
(B) electronic mail; or
(C) an online service, application, or website:

(i) that consists primarily of news, sports, entertainment, or other information or content that is not user generated but is preselected by the provider; and
(ii) for which any chat, comments, or interactive functionality is incidental to, directly related to, or dependent on the provision of the content described by Subparagraph (i)

The operative “anti-censorship” provision only applies to such social media platforms that have “more than 50 million active users in the United States in a calendar month.” Leaving aside that no one really knows how many active users they truly have, the definition above sweeps in a lot more companies than people realize.

In its filings in the case, Texas had claimed that the only companies covered by the law were Facebook, Twitter, and YouTube. Judge Andy Oldham, in his ridiculous ruling, stated that “the plaintiff trade associations represent all the Platforms covered by HB 20.”

But, from the definition above, that’s clearly false. First off, it’s not even clear if Twitter actually qualifies. As we’ve learned (oh so painfully), Twitter no longer even reports its “monthly active users,” but instead chooses to release its “monetizable daily active users” which is not even close to the same thing. When it last did post info on its monthly active users, apparently it was only 38 million — meaning it might not even be subject to the anti-censorship provisions of the law!

But also, there are other platforms which are not members of either trade association, and yet still qualify under the definition above. Law professor Daphne Keller put together a list of public information on internet company sizes for Senate testimony earlier this year, and it’s a useful guide.

One name that stands out: Wikipedia. According to Keller’s estimate, it has more than 97 million monthly active users on the site. It meets the definition under the law. It’s a website that is open to the public, allows a user to create an account and enables users to communicate with other users for the primary purpose of posting information, comments, messages, or images.

It doesn’t meet any of the exceptions. It’s not an ISP. It does not provide email. It does not consist “primarily” about news, sports, entertainment or “other information or content that is not user generated.” Wikipedia is all user generated. And the interactive nature of the site is not incidental to the service. It’s the whole point.

So… Wikipedia qualifies.

Now… how does Wikipedia comply?

Under the law, Wikipedia cannot “censor” based on “the viewpoint of the user.” But, Wikipedia is constantly edited by users. Even if you were to claim that a user chose to edit an entry because of the “viewpoint” of the content, how would Wikipedia even prevent that?

Wikipedia must also create (I’m already laughing) an email address where users can send complaints and a whole “complaint system.”

I don’t see how that can happen.

Anyway, it’s possible this means that Wikipedia can no longer stop people from adding more and more content (true or not) to Judge Andy Oldham’s profile, because having users take it down would potentially violate the law (but don’t do that: vandalizing Wikipedia is always bad, even if you’re trying to make a point).

The entire law is based on the idea that all moderation takes place by the company itself, and not by users.

It’s also possible that Reddit is swept up under the law (it’s unclear if they have enough US users, but it’s close), and again, I don’t see how it can comply. Moderation there is multi-layered, but there is user voting, which certainly might be based on viewpoints. There are admin level moderation decisions (so, under this law, Reddit might not have been able to ban a bunch of abusive subreddits). But, each subreddit has its own rules and its own moderators. Will individual subreddit moderation run afoul of this law? Can subreddits even still operate?

¯\_(ツ)_/¯

No one knows!

Discord might also be close to the trigger line and again, I don’t see how it could comply, since each Discord server has its own administrators and moderators.

On Twitter, someone noted that the job board, Indeed.com claims to have over 250 million unique visitors every month. That was as of 2020, yet some more recent numbers show it much higher, with the latest monthly numbers (from May of this year) showing over 650 million visits. Visits and users are not the same, but it’s not difficult to see how that turns into over 50 million active users in the US.

And… that creates more problems, as the lawyer noted to me on Twitter, if someone now posts a job opening on Indeed that violates the EEOC by saying certain races shouldn’t apply, well, under the Texas law, Indeed would have to leave that ad up (though, under the EEOC they’d have to take it down).

This just part of the reason we have a dormant commerce clause in the Constitution that should have gotten this law tossed even earlier, but alas…

Anyway, if the law does actually go into effect, we’re going to discover lots of nonsense like this. But that’s because the Texas legislature, the Texas executive branch, and foolish judges like Andy Oldham don’t actually understand any of this. They’re just real angry that Donald Trump got banned from Twitter for being an ass.

Filed Under: 5th circuit, andy oldham, content moderation, hb 20, wikipedia
Companies: discord, indeed, reddit, wikipedia