Texas, Florida and other Republican-led states are passing laws that prohibit tech companies from “censoring” users — laws that Republican leaders say are meant to protect their constituents’ rights to free speech.
Media
Analysis | Want to regulate social media? The First Amendment may stand in the way. – The Washington Post
In the view of the tech companies, however, it’s those Republican lawmakers who are actually censoring. And the victims are not the everyday users of their social networks, but the companies themselves.
As tech-interest groups fight regulations in court battles across the country, they are advancing arguments that cast their content moderation decisions and even their ranking algorithms — the software that decides which posts each user sees when they open the app or website — as a form of expression in its own right. And they’re calling on the First Amendment, which protects American citizens and companies alike from government restraints on speech, to keep states’ hands off.
From Texas to Florida to Ohio to the U.S. Supreme Court, the nation’s judges and justices are wrestling with gnarly new questions about just what constitutes free speech, and whose rights are really at stake when lawmakers try to regulate social media feeds. Hanging in the balance are not only efforts by the right to impose political neutrality on Silicon Valley giants, but efforts by the left and center to require greater transparency and to hold them accountable for amplifying speech that may be harmful or illegal.
“The First Amendment is to some degree up for grabs,” says Genevieve Lakier, a University of Chicago law professor and senior visiting research scholar at the Knight First Amendment Institute. “These old principles are being pushed and pulled and reimagined in light of changing technological conditions and changing political alignments.”
The legal battles have their roots in controversies over social media’s ever-growing role in shaping political discourse. As platforms such as Facebook, Twitter, YouTube and even TikTok have become influential forums for politicians, activists and the media, they’ve been criticized — often, though not exclusively, by the left — for fanning misinformation, bigotry, and division.
In response, those platforms have developed increasingly sophisticated systems — combining automation with human oversight — to detect and remove posts that violate their rules. In some cases, they’ve also adjusted their feed-ranking and recommendation algorithms to try to avoid highlighting content that could be problematic. But those moves have their own critics, especially on the right.
On May 11, a federal appeals court stunned the legal establishment by allowing Texas to move forward with a law that bans large Internet sites from “censoring” — whether by removing or algorithmically demoting — users’ posts based on their viewpoint. While the 5th Circuit Court didn’t explain its decision, the ruling seemed to support Texas Republicans’ argument that individual users’ right to be heard on social media platforms could trump tech companies’ right to decide which posts to display.
Tech companies quickly appealed to the Supreme Court, asking it to put the law back on hold while the lawsuit unfolds in a lower court. Justice Samuel Alito is expected to issue a ruling on that request in the coming days. While that ruling won’t resolve the case, it will be closely watched as a signal of how the broader debate is likely to play out in cases across the country.
Meanwhile, on May 23, another federal appeals court took a very different stand on Florida’s social media law, which is similar in spirit to Texas’s but differs in the details. In that case, the 11th Circuit upheld a lower court’s decision to suspend large swaths of the Florida law, on the grounds that tech companies’ algorithms and content moderation decisions amount to “constitutionally protected expressive activity.”
That ruling was broadly in keeping with decades of legal precedent holding that the best way to protect free speech is for governments to stay out of it. But it was noteworthy in affirming that social media sites’ “curation” of content is itself a form of protected speech.
It was also nuanced. While the appeals court judges found that many of the Florida law’s provisions were likely to be unconstitutional, they reinstated portions of the law that require tech companies to disclose certain types of information relevant to their content moderation processes.
For instance, they found that Florida requiring social media platforms to spell out their content moderation standards, show users the view counts on their posts, and give suspended users access to their data might be permissible. Those provisions will now take effect while a lower court continues to hear the case. But the court rejected a provision that would have required platforms to articulate to users their reasoning for suppressing any given post, ruling that it would be too burdensome.
Importantly, it also swatted away a provision requiring platforms to offer their users the ability to opt out of algorithmic ranking and see every post in their feed in chronological order. That decision, again, was on First Amendment grounds, suggesting platforms have a constitutional right to algorithms and even “shadow banning” — a colloquial term for hiding posts from certain users or making them harder to find, often without the user knowing about it.
Mary Anne Franks, a University of Miami law professor and author of the book “The Cult of the Constitution,” is a critic of what’s sometimes called “First Amendment absolutism” — the idea that the government can almost never interfere with even the most abhorrent speech. She argues there should be room for reforms that allow tech companies to be held responsible when they host or promote certain types of harmful content.
Yet Franks believes the 11th Circuit was correct to find much of the Florida law unconstitutional. Requiring social media platforms to offer a chronological feed, she said, would be analogous to requiring bookstores to arrange every book in chronological order in their storefront window — a violation of their right to decide which works to highlight.
That opinion could have implications not only for attempts by the right to restrict content moderation, but also for bipartisan and progressive proposals to promote more and better content moderation. Those include a bevy of bills that surfaced or gained momentum after the Facebook whistleblower Frances Haugen called attention to how that company’s algorithms prioritized engagement and profits over social responsibility.
Some of those bills would remove the liability shield that Internet platforms enjoy under Section 230 of the Communications Decency act if their algorithms play a role in amplifying certain categories of speech. Others would require social media sites to offer “transparent” alternatives to their default recommendation algorithms. Still others would require them to submit their ranking algorithms to researchers or even the Federal Trade Commission.
Based on the recent federal court opinions, most, if not all, would likely prompt lawsuits from tech groups alleging that they violate the First Amendment. Exactly where courts will draw the line remains to be seen.
“What the 11th Circuit opinion does is start from the presumption that algorithmic ranking and recommendation and amplification is part of the First Amendment-protected conduct or speech that a platform engages in,” said Emma Llanso, director of the Free Expression Project at the nonprofit Center for Democracy and Technology, which receives funding from tech companies as well as some tech critics. “And so any regulation of that aspect of what platforms do will potentially face the same First Amendment scrutiny.”
That doesn’t mean regulating social media algorithms is impossible, Llanso said. But it sets a “very high bar” for the government to show a compelling interest in doing so, and to avoid making any such regulations overly burdensome.
In the wake of the recent court opinions, the kinds of regulations that would seem to have the best chance of surviving judicial scrutiny are those that focus on transparency, Llanso and other experts agreed. For instance, a bipartisan bill in Congress that would require large platforms to share data with approved researchers might stand a solid chance of surviving the level of scrutiny that the 11th Circuit applied.
But they cautioned that the big, underlying legal questions remain open for now, especially after the 5th and 11th circuits took such different stands on the Texas and Florida laws.
At the core of the debate is whether it’s only the tech companies’ speech rights that are at issue when the government attempts to regulate them, or whether some of those tech companies now have such power over individuals’ speech that the speech rights of users should come into play.
Historically, conservative thinkers held that “the best way to protect users’ speech rights is to give a lot of speech rights to platforms,” Lakier said, while some on the left worried that individuals’ speech rights were being given short shift. Now, a new breed of Trump-aligned Republicans has taken up the view that individuals may need speech protections from corporations, not just the government. Those include Texas Gov. Greg Abbott, Florida Gov. Ron DeSantis, and Supreme Court Justice Clarence Thomas.
“It’s a live question,” Lakier said. While she believes the Texas and Florida laws go too far in restricting platforms, she added, “I will say as a progressive, I’m quite sympathetic to this turn to users’ speech rights. I think we should be thinking about that a lot more than we have in the past.”
Cat Zakrzewski and Cristiano Lima contributed to this report.
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Sometimes, you just have to return to the classics.
That’s especially true as Halloween approaches. While you queue up your spooky movie marathon, here are 10 iconic horror movies from the past 70 years for inspiration, and what AP writers had to say about them when they were first released.
We resurrected excerpts from these reviews, edited for clarity, from the dead — did they stand the test of time?
“Rear Window” (1954)
“Rear Window” is a wonderful trick pulled off by Alfred Hitchcock. He breaks his hero’s leg, sets him up at an apartment window where he can observe, among other things, a murder across the court. The panorama of other people’s lives is laid out before you, as seen through the eyes of a Peeping Tom.
James Stewart, Grace Kelly, Thelma Ritter and others make it good fun.
— Bob Thomas
“Halloween” (1978)
At 19, Jamie Lee Curtis is starring in a creepy little thriller film called “Halloween.”
Until now, Jamie’s main achievement has been as a regular on the “Operation Petticoat” TV series. Jamie is much prouder of “Halloween,” though it is obviously an exploitation picture aimed at the thrill market.
The idea for “Halloween” sprang from independent producer-distributor Irwin Yablans, who wanted a terror-tale involving a babysitter. John Carpenter and Debra Hill fashioned a script about a madman who kills his sister, escapes from an asylum and returns to his hometown intending to murder his sister’s friends.
— Bob Thomas
“The Silence of the Lambs” (1991)
“The Silence of the Lambs” moves from one nail-biting sequence to another. Jonathan Demme spares the audience nothing, including closeups of skinned corpses. The squeamish had best stay home and watch “The Cosby Show.”
Ted Tally adapted the Thomas Harris novel with great skill, and Demme twists the suspense almost to the breaking point. The climactic confrontation between Clarice Starling and Buffalo Bill (Ted Levine) is carried a tad too far, though it is undeniably exciting with well-edited sequences.
Such a tale as “The Silence of the Lambs” requires accomplished actors to pull it off. Jodie Foster and Anthony Hopkins are highly qualified. She provides steely intelligence, with enough vulnerability to sustain the suspense. He delivers a classic portrayal of pure, brilliant evil.
— Bob Thomas
“Scream” (1996)
In this smart, witty homage to the genre, students at a suburban California high school are being killed in the same gruesome fashion as the victims in the slasher films they know by heart.
If it sounds like the script of every other horror movie to come and go at the local movie theater, it’s not.
By turns terrifying and funny, “Scream” — written by newcomer David Williamson — is as taut as a thriller, intelligent without being self-congratulatory, and generous in its references to Wes Craven’s competitors in gore.
— Ned Kilkelly
“The Blair Witch Project” (1999)
Imaginative, intense and stunning are a few words that come to mind with “The Blair Witch Project.”
“Blair Witch” is the supposed footage found after three student filmmakers disappear in the woods of western Maryland while shooting a documentary about a legendary witch.
The filmmakers want us to believe the footage is real, the story is real, that three young people died and we are witnessing the final days of their lives. It isn’t. It’s all fiction.
But Eduardo Sanchez and Dan Myrick, who co-wrote and co-directed the film, take us to the edge of belief, squirming in our seats the whole way. It’s an ambitious and well-executed concept.
— Christy Lemire
“Saw” (2004)
The fright flick “Saw” is consistent, if nothing else.
This serial-killer tale is inanely plotted, badly written, poorly acted, coarsely directed, hideously photographed and clumsily edited, all these ingredients leading to a yawner of a surprise ending. To top it off, the music’s bad, too.
You could forgive all (well, not all, or even, fractionally, much) of the movie’s flaws if there were any chills or scares to this sordid little horror affair.
But “Saw” director James Wan and screenwriter Leigh Whannell, who developed the story together, have come up with nothing more than an exercise in unpleasantry and ugliness.
— David Germain
Germain gave “Saw” one star out of four.
“Paranormal Activity” (2009)
The no-budget ghost story “Paranormal Activity” arrives 10 years after “The Blair Witch Project,” and the two horror movies share more than a clever construct and shaky, handheld camerawork.
The entire film takes place at the couple’s cookie-cutter dwelling, its layout and furnishings indistinguishable from just about any other readymade home constructed in the past 20 years. Its ordinariness makes the eerie, nocturnal activities all the more terrifying, as does the anonymity of the actors adequately playing the leads.
The thinness of the premise is laid bare toward the end, but not enough to erase the horror of those silent, nighttime images seen through Micah’s bedroom camera. “Paranormal Activity” owns a raw, primal potency, proving again that, to the mind, suggestion has as much power as a sledgehammer to the skull.
— Glenn Whipp
Whipp gave “Paranormal Activity” three stars out of four.
“The Conjuring” (2013)
As sympathetic, methodical ghostbusters Lorraine and Ed Warren, Vera Farmiga and Patrick Wilson make the old-fashioned haunted-house horror film “The Conjuring” something more than your average fright fest.
“The Conjuring,” which boasts incredulously of being their most fearsome, previously unknown case, is built very in the ’70s-style mold of “Amityville” and, if one is kind, “The Exorcist.” The film opens with a majestic, foreboding title card that announces its aspirations to such a lineage.
But as effectively crafted as “The Conjuring” is, it’s lacking the raw, haunting power of the models it falls shy of. “The Exorcist” is a high standard, though; “The Conjuring” is an unusually sturdy piece of haunted-house genre filmmaking.
— Jake Coyle
Coyle gave “The Conjuring” two and half stars out of four.
“Get Out” (2017)
Fifty years after Sidney Poitier upended the latent racial prejudices of his white date’s liberal family in “Guess Who’s Coming to Dinner,” writer-director Jordan Peele has crafted a similar confrontation with altogether more combustible results in “Get Out.”
In Peele’s directorial debut, the former “Key and Peele” star has — as he often did on that satirical sketch series — turned inside out even supposedly progressive assumptions about race. But Peele has largely left comedy behind in a more chilling portrait of the racism that lurks beneath smiling white faces and defensive, paper-thin protestations like, “But I voted for Obama!” and “Isn’t Tiger Woods amazing?”
It’s long been a lamentable joke that in horror films — never the most inclusive of genres — the Black dude is always the first to go. In this way, “Get Out” is radical and refreshing in its perspective.
— Jake Coyle
Coyle gave “Get Out” three stars out of four.
“Hereditary” (2018)
In Ari Aster’s intensely nightmarish feature-film debut “Hereditary,” when Annie (Toni Collette), an artist and mother of two teenagers, sneaks out to a grief-support group following the death of her mother, she lies to her husband Steve (Gabriel Byrne) that she’s “going to the movies.”
A night out with “Hereditary” is many things, but you won’t confuse it for an evening of healing and therapy. It’s more like the opposite.
Aster’s film, relentlessly unsettling and pitilessly gripping, has carried with it an ominous air of danger and dread: a movie so horrifying and good that you have to see it, even if you shouldn’t want to, even if you might never sleep peacefully again.
The hype is mostly justified.
— Jake Coyle
Coyle gave “Hereditary” three stars out of four.
Read the full review here. ___
Researcher Rhonda Shafner contributed from New York.
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