Free Speech
Experts Reflect on Supreme Court Decision to Block Texas Social Media Bill
Observers on a Broadband Breakfast panel offered differing perspectives on the high court’s decision.
WASHINGTON, June 2, 2022 – Experts hosted by Broadband Breakfast Wednesday were split on what to make of the Supreme Court’s 5-4 decision to reverse a lower court order lifting a ban on a Texas social media law that would have made it illegal for certain large platforms to crack down on speech they deem reprehensible.
The decision keeps the law from taking affect until a full determination is made by a lower court.
During a Broadband Live Online event on Wednesday, Ari Cohn, free speech counsel for tech lobbyist TechFreedom, argued that the bill “undermines the First Amendment to protect the values of free speech.
“We have seen time and again over the course of history that when you give the government power to start encroaching on editorial decisions [it will] never go away, it will only grow stronger,” he cautioned. “It will inevitably be abused by whoever is in power.”
Nora Benavidez, senior counsel and director of digital justice and civil rights for advocate Free Press, agreed with Cohn. “This is a state effort to control what private entities do,” she said Wednesday. “That is unconstitutional.
“When government attempts to invade into private action that is deeply problematic,” Benavidez continued. “We can see hundreds and hundreds of years of examples of where various countries have inserted themselves into private actions – that leads to authoritarianism, that leads to censorship.”
Different perspectives
Principal at McCollough Law Firm Scott McCollough said Wednesday that he believed the law should have been allowed to stand.
“I agree the government should not be picking and choosing who gets to speak and who does not,” he said. “The intent behind the Texas statute was to prevent anyone from being censored – regardless of viewpoint, no matter what [the viewpoint] is.”
McCollough argued that this case was about which free speech values supersede the other – “those of the platforms, or those of the people who feel that they are being shut out from what is today the public square.
“In the end it will be a court that acts, and the court is also the state,” McCollough added. “So, in that respect, the state would still be weighing in on who wins and who loses – who gets to speak and who does not.”
Chief policy officer of social media platform Parler Amy Peikoff said Wednesday that her primary concern was “viewpoint discrimination in favor of the ruling elite.”
Peikoff was particularly concerned about coordination between state agencies and social media platforms to “squelch certain viewpoints.”
Peikoff clarified that she did not believe that the Texas law was the best vehicle to address these concerns, however, stating instead that lawsuits – preferably private ones – be used to remove the “censorious cancer,” rather than entangling a government entity in the matter.
“This cancer grows out of a partnership between government and social media to squelch discussion about certain viewpoints and perspectives.”
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Wednesday, June 1, 2022, 12 Noon ET – BREAKING NEWS EVENT! – The Supreme Court, Social Media and the Culture Wars
The Supreme Court on Tuesday blocked a Texas law that would ban large social media companies from removing posts based on the views they express. Join us for this breaking news event of Broadband Breakfast Live Online in which we discuss the Supreme Court, social media and the culture wars.
Panelists:
- Scott McCollough, Attorney, McCollough Law Firm
- Amy Peikoff, Chief Policy Officer, Parler
- Ari Cohn, Free Speech Counsel, TechFreedom
- Nora Benavidez, Senior Counsel and Director of Digital Justice and Civil Rights at Free Press
- Drew Clark (presenter and host), Editor and Publisher, Broadband Breakfast
Panelist resources:
- Supreme Court decision on HB 20, May 31, 2022
- Narrow Majority of Supreme Court Blocks Texas Law Regulating Social Media Platforms, Broadband Breakfast, May 31, 2022
- Explainer: With Florida Social Media Law, Section 230 Now Positioned In Legal Spotlight, Broadband Breakfast, May 25, 2021
- Parler Policy Exec Hopes ‘Sustainable’ Free Speech Change on Twitter if Musk Buys Platform, Broadband Breakfast, May 16, 2022
- Experts Warn Against Total Repeal of Section 230, Broadband Breakfast, November 22, 2021
- Broadband Breakfast Hosts Section 230 Debate, Broadband Breakfast, June 1, 2021
W. Scott McCollough has practiced communications and Internet law for 38 years, with a specialization in regulatory issues confronting the industry. Clients include competitive communications companies, Internet service and application providers, public interest organizations and consumers.
Amy Peikoff is the Chief Policy Officer of Parler. After completing her Ph.D., she taught at universities (University of Texas, Austin, University of North Carolina, Chapel Hill, United States Air Force Academy) and law schools (Chapman, Southwestern), publishing frequently cited academic articles on privacy law, as well as op-eds in leading newspapers across the country on a range of issues. Just prior to joining Parler, she founded and was President of the Center for the Legalization of Privacy, which submitted an amicus brief in United States v. Facebook in 2019.
Ari Cohn is Free Speech Counsel at TechFreedom. A nationally recognized expert in First Amendment law, he was previously the Director of the Individual Rights Defense Program at the Foundation for Individual Rights in Education (FIRE), and has worked in private practice at Mayer Brown LLP and as a solo practitioner, and was an attorney with the U.S. Department of Education’s Office for Civil Rights. Ari graduated cum laude from Cornell Law School, and earned his Bachelor of Arts degree from the University of Illinois at Urbana-Champaign.
Nora Benavidez manages Free Press’s efforts around platform and media accountability to defend against digital threats to democracy. She previously served as the director of PEN America’s U.S. Free Expression Programs, where she guided the organization’s national advocacy agenda on First Amendment and free-expression issues, including press freedom, disinformation defense and protest rights. Nora launched and led PEN America’s media-literacy and disinformation-defense program. She also led the organization’s groundbreaking First Amendment lawsuit, PEN America v. Donald Trump, to hold the former president accountable for his retaliation against and censorship of journalists he disliked.
Drew Clark is the Editor and Publisher of BroadbandBreakfast.com and a nationally-respected telecommunications attorney. Drew brings experts and practitioners together to advance the benefits provided by broadband. Under the American Recovery and Reinvestment Act of 2009, he served as head of a State Broadband Initiative, the Partnership for a Connected Illinois. He is also the President of the Rural Telecommunications Congress.

Photo of the Supreme Court from September 2020 by Aiva.
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Free Speech
Additional Content Moderation for Section 230 Protection Risks Reducing Speech on Platforms: Judge
People will migrate from platforms with too stringent content moderation measures.

WASHINGTON, March 13, 2023 – Requiring companies to moderate more content as a condition of Section 230 legal liability protections runs the risk of alienating users from platforms and discouraging communications, argued a judge of the District of Columbia Court of Appeal last week.
“The criteria for deletion are vague and difficult to parse,” Douglas Ginsburg, a Ronald Reagan appointee, said at a Federalist Society event on Wednesday. “Some of the terms are inherently difficult to define and policing what qualifies as hate speech is often a subjective determination.”
“If content moderation became very rigorous, it is obvious that users would depart from platforms that wouldn’t run their stuff,” Ginsburg added. “And they will try to find more platforms out there that will give them a voice. So, we’ll have more fragmentation and even less communication.”
Ginsburg noted that the large technology platforms already moderate a massive amount of content, adding additional moderation would be fairly challenging.
“Twitter, YouTube and Facebook remove millions of posts and videos based on those criteria alone,” Ginsburg noted. “YouTube gets 500 hours of video uploaded every minute, 3000 minutes of video coming online every minute. So the task of moderating this is obviously very challenging.”
John Samples, a member of Meta’s Oversight Board – which provides direction for the company on content – suggested Thursday that out-of-court dispute institutions for content moderation may become the preferred method of settlement.
The United States may adopt European processes in the future as it takes the lead in moderating big tech, claimed Samples.
“It would largely be a private system,” he said, and could unify and centralize social media moderation across platforms and around the world, referring to the European Union’s Digital Services Act that went into effect in November of 2022, which requires platforms to remove illegal content and ensure that users can contest removal of their content.
Section 230
Section 230 Shuts Down Conversation on First Amendment, Panel Hears
The law prevents discussion on how the first amendment should be applied in a new age of technology, says expert.

WASHINGTON, March 9, 2023 – Section 230 as it is written shuts down the conversation about the first amendment, claimed experts in a debate at Broadband Breakfast’s Big Tech & Speech Summit Thursday.
Matthew Bergman, founder of the Social Media Victims Law Center, suggested that section 230 avoids discussion on the appropriate weighing of costs and benefits that exist in allowing big tech companies litigation immunity in moderation decisions on their platforms.
We need to talk about what level of the first amendment is necessary in a new world of technology, said Bergman. This discussion happens primarily in an open litigation process, he said, which is not now available for those that are caused harm by these products.

Photo of Ron Yokubaitis of Texas.net, Ashley Johnson of Information Technology and Innovation Foundation, Emma Llanso of Center for Democracy and Technology, Matthew Bergman of Social Media Victims Law Center, and Chris Marchese of Netchoice (left to right)
All companies must have reasonable care, Bergman argued. Opening litigation doesn’t mean that all claims are necessarily viable, only that the process should work itself out in the courts of law, he said.
Eliminating section 230 could lead to online services being “over correct” in moderating speech which could lead to suffocating social reform movements organized on those platforms, argued Ashley Johnson of research institution, Information Technology and Innovation Foundation.
Furthermore, the burden of litigation would fall disproportionally on the companies that have fewer resources to defend themselves, she continued.
Bergman responded, “if a social media platform is facing a lot of lawsuits because there are a lot of kids who have been hurt through the negligent design of that platform, why is that a bad thing?” People who are injured have the right by law to seek redress against the entity that caused that injury, Bergman said.
Emma Llanso of the Center for Democracy and Technology suggested that platforms would change the way they fundamentally operate to avoid threat of litigation if section 230 were reformed or abolished, which could threaten freedom of speech for its users.
It is necessary for the protection of the first amendment that the internet consists of many platforms with different content moderation policies to ensure that all people have a voice, she said.
To this, Bergman argued that there is a distinction between algorithms that suggest content that users do not want to see – even that content that exists unbeknownst to the seeker of that information – and ensuring speech is not censored.
It is a question concerning the faulty design of a product and protecting speech, and courts are where this balancing act should take place, said Bergman.
This comes days after law professionals urged Congress to amend the statue to specify that it applies only to free speech, rather than the negligible design of product features that promote harmful speech. The discussion followed a Supreme Court decision to provide immunity to Google for recommending terrorist videos on its video platform YouTube.
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Free Speech
Creating Institutions for Resolving Content Moderation Disputes Out-of-Court
Private institutions may become primary method for content moderation disputes, says expert.

WASHINGTON, March 9, 2023 – A member of Meta’s oversight board, John Samples, suggested that out-of-court dispute institutions for content moderation may become the preferred method of settlement in Broadband Breakfast’s Big Tech & Speech Summit Thursday.
Meta’s oversight board was created by the company to support free speech by upholding or reversing Facebook’s content moderation decisions. It works independently of the company and hosts 40 members around the world.
The European Union’s Digital Services Act, which came into force in November of 2022, requires platforms to remove illegal content and ensure that users can contest removal of their content. It clarifies that platforms are only liable for users’ unlawful behavior if they are aware of it and fail to remove it.
The Act specifies illegal speech to include speech that does harm to the electoral system, hate speech, and speech that harms fundamental rights. The appeals process allows citizens to go directly to the company, the national courts, or out-of-court dispute resolution institutions, none of which currently exist in Europe.
According to Samples, the Act opens the way for private organizations like the oversight board to play a part in moderation disputes. “Meta has a tremendous advantage here as a first mover,” said Samples, “and the model of the oversight board may well spread to Europe and perhaps other places.”
The United States may adopt European processes in the future as it takes the lead in moderating big tech, claimed Samples. “It would largely be a private system,” he said, and could unify and centralize social media moderation across platforms and around the world.
The private option of self-regulation has worked well, said Samples. “It may well be expanding throughout much of the world. If it goes to Europe, it could go throughout.”
Currently, of the media that Meta reviews for moderation, only one percent is restricted, either by taking down the content or reducing the size of the audience exposed to it, said Samples. The oversight board primarily rules against Meta’s decisions and accepts comments from independent interests.
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