S2E3: CHILLING! Texas is About to DESTROY Social Media and YouTube w/ David Rubin from FIRE(Video Podcast)
Key Takeaways:
• The Scope Act’s broad definitions and sweeping requirements could lead to unintended censorship of constitutionally protected speech.
• Historical misuse of new technologies as societal threats often leads to overzealous policy-making that infringes on free speech rights.
• Effective measures to protect minors online should focus on empowering parents and educating users rather than imposing state-mandated content restrictions.
Protecting Free Speech from Digital Overreach: Unpacking the Implications of Texas’s SCOPE Act (HB 19)
The recently passed Texas Scope Act and its far-reaching implications on free speech have ignited debates around the balance between protecting minors online and preserving constitutional rights. Seeing Red host Garrett Fulce invited David Rubin of the Foundation for Individual Rights and Expression (FIRE) to talk about the SCOPE Act’s provisions risk overstepping and inadvertently quelling protected speech across digital platforms.
Rubin explains, “The SCOPE Act places a duty on platforms to hide certain types of harmful content from minor users. The broad list of content includes anything that ‘promotes, glorifies, or facilitates’ various forms of behavior such as self-harm, substance abuse, and bullying.”
Such requirements could lead to sweeping censorship and impose significant barriers on adult access to protected speech. The use of vague and expansive terms creates uncertainty, potentially resulting in platforms excessively restricting content to ensure compliance.
In the context of SCOTUS precedent, Rubin points to a trend: “Free speech case law at the Supreme Court has generally been protective of the First Amendment. Yet, whenever new technology emerges, a wave of protective legislative actions often follows.”
This historical misstep underlines the significance of approaching new regulations with measured caution, to avoid repeating past errors that curbed free speech in attempts to address societal concerns.
The Inherent Risks of Broad Legislative Mandates on Digital Content
One of the most pressing issues with the SCOPE Act is its vague definitions, which pose the risk of extensive censorship of constitutionally protected speech. The Act mandates that platforms verify users’ ages and restrict access to what it deems harmful content—a requirement that has wide-ranging consequences.
Rubin emphasizes, “The SCOPE Act’s requirement for age verification and content tracking places considerable burdens on platforms. Because any non-compliance is treated as a violation of Texas consumer protection laws, platforms might err on the side of excess caution, potentially leading to widespread content restrictions.”
This over-cautious approach might lead platforms to restrict not only the content that fits the Act’s vague harmful criteria but also other categories due to uncertainty and fear of legal repercussions—resulting in a chilling effect on free speech. Rubin’s concern about the implications for content creators directly ties into this: “The classic chilling effect is where individuals self-censor to avoid potential legal issues, meaning lawful and valuable discourse gets stifled.”
The Need for Clear Standards to Differentiate Protected Speech
Fulce touched upon the importance of providing clear standards, questioning how content glorifying harmful behavior might be judged and whether it’s possible to define this legally without infringing on protected speech. Rubin explains, “The SCOPE Act does not specify what’s obscene for a 17-year-old versus a 10-year-old. This could lead platforms to assume content fit for the youngest users, thereby broadening the definition of what is considered obscene for older minors.”
This broad application stands contrary to the focused, narrowly tailored laws needed to withstand strict scrutiny. Strict scrutiny requires that any content-based restriction be narrowly tailored to serve a compelling government interest, a standard that the SCOPE Act may likely fail to meet in its current form.
Pathways to Protecting Minors While Upholding Free Speech
Recognizing the valid impulse toprotect minors, Rubin and Fulce discussed viable alternatives that do not infringe upon First Amendment rights. Rubin suggests, “Before leveraging state power for broad restrictions, it’s crucial to look at the tools available that allow parents and guardians to make decisions about their children’s online interactions.”
Today’s platforms already offer numerous parental control tools, enabling content filtering and monitoring. States like New Jersey have initiated educational programs integrating social media use and its implications into the K-12 curriculum, thus empowering parents and minors with knowledge to navigate online environments responsibly.
Rubin succinctly articulates, “Education before enforcement is usually a pretty good way to think about things.” This philosophy encourages proactive engagement rather than punitive oversight, fostering a more informed and resilient digital society.
Broader Implications and Vigilance for Digital Rights
The evolving landscape of free speech rights vis-à-vis digital regulations continues to demand vigilant oversight and robust debate. The discourse around the SCOPE Act reveals deeper issues, including the potential for state overreach and the necessity for narrowly tailored legal frameworks that respect constitutional protections.
Rubin asserts, “These platforms are so expansive that any broad legislative mandate can inadvertently affect not only children but also adult access to constitutionally protected materials.” Ensuring digital rights in tandem with safeguarding minors involves a balanced approach that prioritizes education and empowerment.
As legal debates unfold and technological advancements continue to emerge, a measured understanding of historical precedents and contemporary challenges remains crucial. The conversations highlighted in the Seeing Red Podcast underscore the ongoing need for policies that respect free speech while addressing the nuanced demands of digital content regulation.
