A court just blew up internet law because it thinks YouTube isn’t a website

Photo by Amelia Holowaty Krales / The Verge

The Fifth Circuit Court of Appeals decided in favor of the Attorney General of Texas in a lawsuit over a strange law that effectively banned many apps and websites from being used by Texas residents. The law went into effect immediately after the court granted a stay on the earlier ruling. The decision was not explained. It followed an equally bizarre hearing earlier this week that should alarm almost anyone who runs a website. Without intervention from another court, it will put social networks in Texas at legal risk.

Social media platforms can't demonetize or remove content based on the viewpoint of the user or another person. It is not allowed for social networks to ban users based on their location in Texas, a provision meant to stop sites from simply pulling out of the state, which might be the simplest solution for many of them.

A judge doesn't believe that YouTube is a website.

The Fifth Circuit judges who voted against the majority were in front of the NetChoice attorney. Things were dicey from the beginning. Paxton argued that social media companies should be treated as common carriers because of their market power, which would require them to treat all content neutrally, something no established law comes close to requiring. Thanks to the repeal of net neutrality laws, even internet service providers like Comcast and Verizon aren't common carriers.

The panel seemed sympathetic to the reasoning of the man. The judge was shocked to learn that a private company could ban categories of speech.

The hearing went off the rails when Judge Jones began discussing Section 230, the law that shields people who use and operate interactive computer services from lawsuits. The term "interactive computer service" has been applied to all kinds of things, including old-school web forums, email listservs, and even gossip sites. NetChoice's attorney was arguing that websites should have First Amendment protections.

It is not a website. Your clients are internet service providers. She asked if the sites were considered interactive computer services. The comment sections of newspapers and websites have been defined as interactive computer services.

It's nonsense that a website that you must access via a separate internet service is not an internet provider. It is not clear whether Jones was confusing interactive computer services with the internet service providers. The real problem is not a judge that doesn't understand technology. She thinks that using Section 230 strips website operators of their First Amendment rights. Jones laid out a line of thinking that seemed to boil down to this:

1. Only “interactive computer services” can rely on Section 230
2. Section 230 protects these sites from being considered the “publishers or speakers” of any given piece of third-party content
3. The First Amendment kicks in if companies are expressing speech
4. If companies aren’t legally liable for a specific instance of illegal speech, their overall moderation strategy shouldn’t count as speech either
5. Thus, YouTube and Facebook have to pick between being Section 230 “interactive computer services” and having First Amendment rights

There is no stopping at the world's tech giants. Jones' reasoning would be a blank check for laws that require sites of any size to accept a government-mandated moderation strategy or open themselves up to libel and harassment lawsuits every time a user posts a comment. It is worse than not knowing that a website is a publisher of speech.

Judges and lawmakers can get away with throwing around vague terms like "modern public square" because places like YouTube feel powerful enough to be utilities. The 50 million users criteria would likely sweep up non- Big Tech companies. Is the phone company also on those sites?

Real internet service providers get a free pass because they have power over Americans that hasn't made Texas politicians angry.

If enough people like the space you've built on your social network, you'll have to throw out your community standards. The issues are just beginning. Is a post false information? Is it possible for YouTube to honor an advertiser's request to pull ads from offensive videos? Is it possible to ban users from specific parts of the platform? Is it possible for Texas to force any website on the internet to operate in its state? The legal headaches are fascinating.

One of the nation's highest courts blew up internet law because its judges don't see any difference between the two. They should try typing into a browser.