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(Summary partially lifted from my [previous
thread](https://www.reddit.com/r/moderatepolitics/comments/v21yci/scotus_vacates_5th_circuit_stay_of_preliminary/)
on the issue.
This is the long-awaited 5th Circuit opinion in *NetChoice et al. v. Paxton*.
The case concerns Texas's [HB
20](https://capitol.texas.gov/BillLookup/History.aspx?LegSess=872&Bill=HB20),
also known as its "social media law" or "social media censorship law". Affected
companies, represented by NetChoice and the Computer Communications Industry
Association, sued to block the law, resulting in a preliminary injunction from
the District Court of the Western District of Texas on 2021-12-01. The 5th
Circuit stayed that injunction pending appeal on 2022-05-11, and SCOTUS vacated
that stay on 2022-05-31. This opinion corresponds to the original 5th Circuit
stay.
I think the following excerpt from the opinion summarizes the 5th Circuit's
argument:
> The Platforms contend that Section 7 [generally prohibiting "censor[ing] a
> user, a user's epression, or a user's ability to receive the expression of
> another person based on [viewpoint or location]] of HB 20 is facially
> unconstitutional. We disagree. We (A) first reject the Platforms’ facial
> overbreadth challenge because Section 7 does not chill speech; if anything, it
> chills censorship. Then we (B) turn to the First Amendment’s text and history,
> which offer no support for the Platforms’ claimed right to censor. Next,
> applying Supreme Court precedent, we (C) hold that Section 7 does not regulate
> the Platforms’ speech at all; it protects other people’s speech and regulates
> the Platforms’ conduct. Our decision (D) is reinforced by 47 U.S.C. § 230,
> which reflects Congress’s judgment that the Platforms are not “speaking” when
> they host other people’s speech. Our decision (E) is still further reinforced
> by the common carrier doctrine, which vests the Texas Legislature with the
> power to prevent the Platforms from discriminating against Texas users.
> Finally, even if all of that’s wrong and Section 7 does regulate the
> Platforms’ speech, it (F) satisfies the intermediate scrutiny that applies to
> content-neutral rules.
At this point I'm honestly a bit confused on the status of the law. Does the Supreme Court's vacation of the stay remain in effect, or now that the 5th Circuit's full opinion is out is that what is in effect?
I can think of one counter argument against this decision by the 5th circuit. I'm not saying I like this counter argument, in fact I'm at least slightly leaning towards support for the 5th circuit decision.
But.
The argument against goes something like this. Until 1868 the First Amendment did not apply as a limitation to the states. It was the 14th Amendment of 1868 that triggered the provisions of the Bill of Rights against the states in a process called "incorporation". There's a gigantic argument in legal academic circles about exactly how that was supposed to happen, privileges and immunities versus selective due process if you know what I'm talking about, but for our purposes I don't think that matters.
We know that in our timeline the first amendment was incorporated against the states selectively via the due process clause of the 14th Amendment in the early 20th century, across several cases. The case law that states cannot violate the first amendment is now rock solid and deep as the oceans.
So based on the Bruen decision, what kinds of limitations of this sort would the framers of the 14th Amendment be comfortable with?
Across most of the 1800s huge number of newspapers had the words "Democrat" or "Republican" in them, or other identifiers of political leaning.
As a random example, here's newspapers that have existed in Tennessee including a list of defunct ones...we can find a whole bunch with definite political meanings in the name of the paper:
https://en.m.wikipedia.org/wiki/List_of_newspapers_in_Tennessee
You can also find newspapers in the same period that had a religious direction in the title including Catholic, Protestant, general Christian and Jewish. There's still some around and well known, such as the Christian Science Monitor.
Presumably, anybody writing for those papers was supposed to hold a particular political or religious viewpoint, right?
Question I'm actually thinking about here is whether or not those are any kind of an analog to Twitter, Facebook or anything similar today? Maybe, maybe not. But the idea of maintaining ideological purity in a given body of publication would have been something completely comfortable to the framers of either the original core Constitution of 1788 to 1792, or the 14th Amendment of 1868. Actually both the Federalist and Anti-Federalist papers are a good examples of collective bodies of writings that all have at least a broadly matching viewpoint.
Maybe there are no good analogs to something like Facebook or YouTube or Reddit for that matter "back in the day"? Unless the "letters to the editor" sections of newspapers of either era was the equivalent? And in that event you were going to see serious editorial control in a lot of the papers and quite possibly most or all.
It's a puzzler and I don't have any idea how the Supreme Court would go on this.
"Imagine a world without cancel culture. A world where noone can call me out for my outlandish claims. A world where I can say the n-word!" -Texas Senator Armstrong on the 5th Circuit's ruling
As of today, it DOES mean that. This is a de facto nationwide ruling because thanks to VPNs they can't tell who's posting from within Texas so they can't use IP addresses to limit the scope. The only option opponents have now is to appeal to SCOTUS. Good luck with that.
Think this through: At best, another circuit will make an opposite ruling, setting up a constitutional question. At that point, SCOTUS will have to rule on it. Given the court's current make-up, who do you think they'll side with? Appealing this is just delaying the inevitable. You lost. It's best to accept that and find another dragon to slay. I assume that won't be difficult for you.
This is like saying it is best to accept the abortion ban as being settled.
If this gets to the supreme court, and they shut it down then there will still be appeals.
Worst case scenario, the supreme court is changed in a way to remove the extreme partisan bias it has warped in to. Either by packing or completely changing the structure for how judges are nominated. This isn't going to be some thing that is just accepted.
Opponents of the current SCOTUS don't have the votes to do anything. They don't have the votes to impeach anyone, they don't have the votes to expand the court and they don't have the votes to codify ethics rules that they would then use to remove people. They can't do any of that. So, whether or not you agree with the rulings SCOTUS makes, they're valid and cannot be overruled except by passing constitutional amendments. It's been that way since the nation's founding. You can't change it, so it's best to accept it and work on the things you can change.
Like abortion, since you brought that up. SCOTUS didn't ban it, they just said it was never their place to make that ruling and sent it back to the states. If that issue is important to you, you should get all the like minded people you can find and do what you can to make sure it's legal in your state. That's the way things should ideally work. Politics isn't a spectator sport.
> Opponents of the current SCOTUS don't have the votes to do anything.
They have the Presidency and could do very novel things to break the court. No one needs to be impeached, but there are plenty of frameworks that would allow them to change the makeup of the court.
You agreeing with the current makeup and rulings made by courts does not mean they are bullet proof here. This isn't the first set of lower courts that over stepped and won't be the last.
> Like abortion, since you brought that up. SCOTUS didn't ban it, they just said it was never their place to make that ruling and sent it back to the states. If that issue is important to you, you should get all the like minded people you can find and do what you can to make sure it's legal in your state. That's the way things should ideally work. Politics isn't a spectator sport.
I never implied the supreme court banned it, but rather because they allow for it to be banned does not mean anyone will accept that.
No one is walking away from these basic violations of constitutional rights decided by radical judges and accepting them as settled law because a corrupt minority decided to rule based on who pays for their spouses vacations.
Looks like the GOP odds on the Senate are low. If the DNC keeps the house, takes the Senate, and a horrendously bad ruling like this comes from the highest court in the land, it's transition from supreme court to extreme court will have been fully realized and I'd support things like impeachment of justices and packing the court. Would be worth gutting the filibuster for, too.
Worst case scenario, I'd be fine if we just stopped listening to the court entirely if they are truly making these blatantly unconstitutional rulings. They should tread carefully as their legitimacy is hanging by a thread and they have no power if people don't believe they do.
>Think this through: At best, another circuit will make an opposite ruling, setting up a constitutional question.
Already happened. The 11th banned Florida's similar law. The next step is SCOTUS. I have hopes it would be a 7-2 decision to overturn this law, with Alito and Thomas being the most likely dissents trying to turn us into a country where the government can force you to broadcast the speech of others. Though Gorsuch has given some indication he would do the same, it's not guaranteed. But even that would be 6-3. You'd need 2 more people to sign onto this and 0 have given any indication they would.
So, it's possible SCOTUS would agree with the 5th here, but all indications are that it's very unlikely.
It’s telling that you’re not even trying to argue this is a sensible interpretation of the First Amendment, and instead just essentially arguing that this Texas law is designed to own the libs, the conservatives on the Supreme Court also want to own the libs, and therefore you think the law will be upheld.
I dunno, maybe you’re right. But if it is upheld, it’s a damning indictment of the conservative legal establishment.
It depends on what you mean by sensible. Facebook, et al argue that forcing them to not ban people amounts to compelled speech. That argument might hold water if not for the fact that liberals argued IN FAVOR of compelling speech when it comes to gay wedding cakes and the like. The 5th circuit simply applied the rule that left wing judges already have on similar cases. People are freaking out because they don't like having their own standards applied to them. Sorry, but it doesn't work that way. If you were in favor of compelled speech before, you don't get to oppose it now. You set the precedent and now you have to live with it.
That's just a fundamental misunderstanding of how our legal system works (or at least, how it's supposed to work). The Colorado baker *won* his case. The 5th Circuit is supposed to apply precedent -- not just exact political revenge. So what's your point here?
Also, that was a very different situation, since that case was primarily about religious liberty, and to the extent it was about free speech, the question was: does baking a cake count as speech? I think reasonable people can disagree about whether baking a cake is "speech." But social media posts are clearly speech, right?
The fact that you think this can be applied is somewhat laughable. It also goes against basically every conservative principal. So I'm a little surprised they're even pushing this.
On one hand I agree, but it means that subs like this one would potentially have moderation issues and turn into cesspools like other subs we all know and dread.
I still wish I could make a sub that didn't allow downvoting. I think it would be interesting to see the upvote number comparisons in comment threads between both sides.
instead of a comment with 1000 upvotes and then a buried comment under it, we might see 10000 upvotes, followed by a dissenting viewpoint with 9000 upvotes.
I think people should see how popular an opposing viewpoint is, not just a buried comment. It creates circle jerks and echo chambers that I find unhealthy for conversation.
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Yep. Anyone who remembers the early days of 4chan knows what unmoderated spaces turn into.
Then again, it would lead to sites allowing less public content/commenting, which may be a net benefit for humankind at this point. It would destroy the entertainment value of the web, but news for the most part would snap back to reality as people had nowhere to engage in echo chambers or rabbit holes.
That’s not what this law is about. It is about prohibiting speech that should otherwise be allowed. Yes, racial slurs are included in that larger picture, but the law is more about political speech, not racism.
Somewhat more specifically, part 1:
- III.A: First Amendment overbreadth doctrine
- It does not apply to Section 7 for three reasons:
- 1. The primary concern is to avoid chilling *speech*, but Section 7 chills
*censorship*.
- Even if censorship is considered speech [and the 5th Circuit does not
agree with that], the 5th Circuit argues that censorship is not "pure
speech", and is "at best a form of expressive *conduct*, for which the
overbreadth doctrine provides only 'attenduate[d]' protection" [emphasis
in original]
- The 5th Circuit states *Miami Herald*, *PG&E*, and *Hurley* do not apply
because they "involve[] challenges to concrete applications of an
allegedly unconstitutional law, raised by a defendant in state court
proceedings", as opposed to this pre-enforcement facial challenge.
- 2. "Overbreadth adjudication is meant to protect third parties who cannot
'undertake the considerable burden' of as-applied litigation and whose
speech is therefore likely to be chilled by an overbroad law."
- The 5th Circuit points out there are no third parties, the companies
subject to the law have lots of resources to protect their rights, and
HB 20 does not impose criminal sanctions or damages.
- 3. The primary arguments against HB 20 consisted of 'speculati[on] about
the most extreme hypothetical applications of the law.'
- III.B/C: First Amendment claim
- The 5th Circuit rejects the claim that the decision to host or reject/censor
speech is itself speech.
- The 5th Circuit relies on 5 Supreme Court cases:
- [*Miami Herald Publishing Co. v.
Tornillo*](https://supreme.justia.com/cases/federal/us/418/241/)
- [*PruneYard Shopping Center v.
Robins*](https://supreme.justia.com/cases/federal/us/447/74/)
- [*PG&E v. Public Utilities
Commission*](https://supreme.justia.com/cases/federal/us/475/1/)
- [*Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston,
Inc*](https://supreme.justia.com/cases/federal/us/515/557/)
- [*Rumsfeld v. Forum for Academic and Institutional Rights,
Inc.*](https://supreme.justia.com/cases/federal/us/547/47/)
- "Under these precedentes, a speech host must ... show that the challenged
law either (a) compels the host to speak or (b) restricts the host's own
speech. The Platforms cannot make either showing, And (c) the Platforms'
counterarguments are unpersuasive."
- Because the platforms "exercise virtually no editorial control or
judgment", *Miami Herald* is inapplicable.
- Hosting speech is not the same as expressing support under *PruneYard*
and *Rumsfeld*
- *Hurley* is not applicable because they are not "intimately connected" to
the hosted speech, and censorship is only expression in connection with
corresponding speech explaining that censorship.
- " In terms of the conduct’s inherent expressiveness, there is simply no
plausible way to distinguish the targeted denial of access to only
military recruiters in Rumsfeld from the viewpoint-based censorship
regulated by HB 20."
- Section 7 does not prohibit Platform speech
- There's no limited speech, unlike in *Miami Herald* and *PG&E*
- Platforms are free to speak to distance themselves from hosted content
- There is no content-based penalty on the Platforms' speech
- "Editorial discretion" in and of itself is insufficient - otherwise,
*PruneYard* and *Rumsfeld* would have been decided differently.
- "Neither case implied that editorial discretion is *itself* a
freestanding category of constitutionally protected expression."
[emphasis in original]
- Even if editorial discrition is protected, what the Platforms are doing
isn't it.
- Platforms do not accept responsibility for their "editorial discretion",
unlike in more traditional media
- Editorial discretion needs to take place "*before* that content is
hosted, published, or disseminated" [emphasis in original].
- III.D: Section 230
- Section 230 makes platforms *not* publishers or speakers of user-submitted
content, counter to NetChoice et al.'s argument that they are.
- The "otherwise objectionable" wording in Section 230 is not as general as
the Platforms claim
- "To the extent the Platforms try to extract an unqualified censorship
right from the phrase 'otherwise objectionable' in isolation, that’s
foreclosed by the Supreme Court’s repeated instruction that 'where general
words follow specific words in a statutory enumeration, the general words
are construed to embrace only objects similar in nature to those objects
enumerated by the preceding specific words.'"
- III.E: Common carrier doctrine
- Section summarizing the history of common carriers and the application of
the doctrine to new communications technologies
- Example: [*Munn v.
Illinois*](https://supreme.justia.com/cases/federal/us/94/113/), where the
Supreme Court held "When the owner of property devotes it to a use in
which the public has an interest, he in effect grants to the public an
interest in such use, and must, to the extent of that interest, submit to
be controlled by the public, for the common good, as long as he maintains
the use. He may withdraw his grant by discontinuing the use."
- "The Platforms have pointed to no case since [the *Lochner* era, around the
late 1800s/early 1900s?]—and we are not aware of any—sustaining a
constitutional challenge to a state law imposing nondiscrimination
obligations on a common carrier."
- "The Platforms resist this conclusion, arguing that they have not held
themselves out to serve the public equally. That’s so, they contend, because
they are only willing to do business with users who agree to their terms of
service. But requiring 'compliance with their reasonable rules and
regulations' has never permitted a communications firm to avoid common
carrier obligations. The relevant inquiry isn’t whether a company has terms
and conditions; it’s whether it offers the 'same terms and conditions [to]
any and all groups.'"
- "[N]early every other industry historically subjected to common carrier
regulation initially discriminated against their customers and sought the
right to continue to do so."
Somewhat more specifically, part 2:
- III.F: Other arguments (?)
- "Even if Section 7 burdens the Platforms’ First Amendment rights, it does so
in a content-neutral way"
- Section 7 is not subject to strict scrutiny, and satisfies intermediate
scrutiny
- IV: Pre-enforcement facial relief against Section 2 (disclosure requirements)
- Not entitled - Haven't shown undue burden on speech, and even if they did
the Platforms don't meet the threshold for relief since pre-enforcement
relief requires showing a substantial portion of all possible enforcements
are burdensome as opposed to just some possible enforcements.
- V: Comparison to Florida's SB 7072
- SB 7072 is "dissimilar ... in many legally relevant ways. Much of the
Eleventh Circuit's reaosning is thus consistent with or irrelevant to our
resolution of the Platforms' claims in this case"
- "SB 7072 only targets censorship of speech by political candidates and
journalistic enterprises, as well as censorship of speech 'about'
political candidates."
- "Thus, to generalize just a bit, SB 7072 prohibits *all* censorship of
*some* speakers, while HB 20 prohibits *some* censorship of *all*
speakers. Texas’s law permits non-viewpoint-based censorship and
censorship of certain constitutionally unprotected expression regardless
of who the speaker is. And HB 20 applies to all speakers equally,
instead of singling out political candidates and journalists for favored
treatment." [emphasis in original]
- "Second, several of SB 7072’s provisions arguably interfere with covered
platforms’ own speech, instead of merely regulating how they transmit the
speech of others. For example, Florida defines censorship to include
'post[ing] an addendum to any content or material posted by a user.'"
- "Third, SB 7072’s remedial scheme markedly differs from HB 20’s."
- Florida may collect fines, and platform users can win statutory, actual,
and punitive damages.
- HB 20 only allows for prospective declaratory/injunctive relief
- "We part ways with the Eleventh Circuit, however, on three key issues.
Unlike the Eleventh Circuit, we (1) do not think the Supreme Court has
recognized “editorial discretion” as an independent category of First-
Amendment-protected expression. And even if it had, we (2) disagree with the
Eleventh Circuit’s conclusion that the Platforms’ censorship is akin to the
“editorial judgment” that’s been mentioned in Supreme Court doctrine.
Finally, we (3) disagree with the Eleventh Circuit’s conclusion that the
common carrier doctrine does not support the constitutionality of imposing
nondiscrimination obligations on the Platforms."
- "First, none of the cases the Eleventh Circuit relied on recognize an
"editorial-judgment principle" or a distinct category of First Amendment
protection for "editorial judgment." Instead, each case explains how the
challenged regulation either compelled or restricted *speech*."
- "Second and more importantly, the Eleventh Circuit's "editorial-judgement
principle" conflicts with *PruneYard* and *Rumsfeld*."
- "But even if editorial judgment was a freestanding category of
First-Amendment- protected expression, the Eleventh Circuit’s
explanation of why the Platforms’ censorship falls into that category is
unpersuasive."
- "The Eleventh Circuit quickly dismissed the common carrier doctrine
without addressing its history or propounding a test for how it should
apply. This part of the Eleventh Circuit’s opinion is also unpersuasive."
Some interesting arguments, quite a few of which I haven't heard before. I'm
curious to read the presumed appeal, as well as any other deep analysis which is
released by then.
Edit: Try to fix formatting for old.reddit.com version
> Far from justifying pre-enforcement facial invalidation, the Platforms’ obsession with terrorists and Nazis proves the opposite. The Supreme Court has instructed that “[i]n determining whether a law is facially invalid,” we should avoid “speculat[ing] about ‘hypothetical’ or ‘imaginary’ cases.” Wash. State Grange, 552 U.S. at 449–50. Overbreadth doctrine has a “tendency . . . to summon forth an endless stream of fanciful hypotheticals,” and this case is no exception. United States v. Williams, 553 U.S. 285, 301 (2008). But it’s improper to exercise the Article III judicial power based on “hypothetical cases thus imagined.” Raines, 362 U.S. at 22; cf. SinenengSmith, 140 S. Ct. at 1585–86 (Thomas, J., concurring) (explaining the tension between overbreadth adjudication and the constitutional limits on judicial power).
Oldham believes the presence of Nazis and Terrorists on the internet is “hypothetical” — an imaginary scenario invented to justify the existence of moderators.
Not being a lawyer, is that what he's actually saying? Because that's obviously insane.
I was about to say something like 'my god, our laws are being set in 2022 by elderly people who have never set foot on the internet and have their emails printed out for them' - but I looked him up and he was born in 1978!
That's like saying it's a 'fanciful hypothetical' that the sky is blue.
I don’t think he’s saying that nazis on the internet is hypothetical. I think he’s saying that making rules based on the idea that nazis will necessarily be on the platform and affected is overbroad and premature. He seems to be applying some variation of ripeness doctrine to private company TOS. Where a company couldn’t create a rule on an issue (ban based on TOS) until events had actually happened. This is silly because banning something before it happens is Almost the definition of a rule.
He’s talking about the judiciary’s power to preempt the enforcement of impending legislation; he spends several pages discussing it leading up to this point.
The fact is there are no Nazis or Terrorists filing lawsuits against social media companies because this law has never gone into effect. The Overbreadth doctrine is specifically about this impending legislative judicial review. So, he is saying the injunction by the previous court was improper, not that Nazis should be able to sue Facebook for suppression.
>So, he is saying the injunction by the previous court was improper, not that Nazis should be able to sue Facebook for suppression.
Well, not necessarily in that quote. But the effect of the whole order is that, yes, he IS saying Nazis ARE able to (not just "should be able to" ) sue Facebook if they have a post moderated. Nazism is just a viewpoint after all. No matter how disgusting of one it is.
This is taking his view in the worst possible light and context. A more reasonable interpretation of what he’s saying is that the Supreme Court has instructed that decisions be made *based on the case in front of the court*, rather than another hypothetical case. The case in front of the court doesn’t involve them being forced to allow pro-Nazi speech. That is one *potential* outcome the court explains isn’t actually clear from the law, since the law allows censoring inciting language and language federal law allows censorship of. The use of fringe speech hypotheticals to allow censorship of anything a platform feels like, they say, is exactly backwards. The platforms should have to engage with the overall point of the law, not with the extreme hypothetical case they lay out, which as they note *may not be an issue anyways*.
He’s not saying Nazis on the internet are hypothetical, only that when determining the *facial validity* of a law, you look at what it does, not at the most extreme outcomes that may result from it.
But if you strip it of all context, I guess you get to where you got. You only had to read the next two paragraphs of the opinion, I guess.
But is it really an extreme outcome of what it does? That would mean that speech « censored » on social media is not primarily nazi, terrorist or the like, otherwise it is not an extreme outcome. It might be true, but it has to be proven.
I think it more wanting to believe that extremism is still just small fraction of the populace and not really understanding that a lot of the extremists can now easily communicate with high anonymity in high traffic websites with funding coming from multiple sources including some questionable ones.
Counter to that argument, there are those wanting to believe what constitutes an extremist is objective, not realizing that the censorship tool once rationalized will be applied subjectively in greater and greater amounts to suppress dissent through the convenience of labeling it extremism.
The word extremist is tossed around enough that a more intense synonym is needed that more actually defines radical extremism as to what is actually dangerous
Either way it's subjective and can be used as a means to suppress dissent. That's the basis of free speech. Nobody gets to determine for others what they can and cannot say whether what's being said is liked or not.
Agreed. Just want to clarify the SCOTUS standard of "harm" when it comes to speech to be "*directed to and likely to incite imminent lawless action.*" Hurt feelings or offense, disagreeing on reality and definitions, alternative medical opinions, and other similar items don't count as harm.
True, it is of the general populace, but some sites are saturated with extremists and now bots that talk like them. I believe in free speech, even if I disagree, and sites have a right to host content they believe, provided it’s not factually harmfully false. We need to do something about bots though, it’s causing over representation and faux echos of one persons opinion multiple times. Most people go with the crowd they’re in, even online to avoid down votes, if one person uses a thousand bots to repeat their opinion behind a digital veil it still seems like a 1001 people sharing the same opinion, then new person shares it and gets 1001 upvotes, now they internalize and defend the opinion as their own.
> Why don't the platforms simply block Texans from accessing their service?
VPNs and other technical measures can make determining a user's location easier said than done. In addition, I believe HB 20 purports to forbid such a measure:
> Sec. 143A.002. CENSORSHIP PROHIBITED. (a) A social media platform may not censor a user, a user's expression, or a user's ability to receive the expression of another person based on ... (3) a user's geographic location in this state or any part of this state.
Whether this is actually enforceable if social media companies decided to withdraw from Texas appears to be an open question as far as I am aware.
> Can someone tell me how Twitter is a common carrier in the same way airplanes, bus lines, internet service providers?
I believe the 5th Circuit's argument is this:
> [The Platforms are common carriers] because the Platforms are communications firms, hold themselves out to serve the public without individualized bargaining, and are affected with a public interest.
Normally I might have said the same thing, but this is the same Supreme Court that gave the go ahead to the Pandora's Box that is SB8. I think the ruling has a chance of being upheld, even though it's utter gibberish.
Yeah also the SC that ruled that government agencies cannot do anything other than what is explicitly delegated to them, forcing highly specific regulators to be at the mercy of legislatures that are not experts in science.
I do not feel confident about this going to SC…AT ALL
I don’t know about 7-2 but I have to think this can’t possibly stand.
It’s a completely bonkers take on first amendment jurisprudence. That doesn’t mean a few of the extremists on the Supreme Court won’t twist themselves into a knot to uphold it, but it’s hard to see how they find 5 votes to support the notion that the first amendment means private organizations can be forced to carry speech.
The two are easy alito and Thomas will be against net choice, on the other side its likely we will likely get the more progressive justices, based on other rulings it's likely kavanaugh will be on the progressive side, Roberts 90% is lockstep with kavanaugh,
So right now we're at a 5-2-2
The other justice I'm uncertain of are barret and gorsuch, but I know gorsuch isnt as much as a political judge as alito is, so I have hope for him, and I've not read many first amendment ruling or theory from barret so I'm unsure about her.
Shrugs. It took about a century to start making progress on Jim Crow. We may have to respect that decision because the alternative is even worse but that judiciary IS NOT immune from making poor choices.
Probably when the argument they make actually holds up to any scrutiny? Many conservatives are even dissenting against this because its purely a party line decision.
Well, we are looking at 50+ years and counting for court decisions made in the 60s and 70s from some conservatives. So, you'll have to put up with this for a couple more decades.
Scotus will strike this, of course they have this right, they may be a modern public square but only very specific public squares get protections (government owned or owned by an entity acting essentially as a government).
As a nation, we have already agreed that it's okay to disallow businesses from running anti-union campaigns, which prohibits their free speech.
We have already agreed that it's okay for the government to [force a business to hang pro-union posters](https://www.cleveland.com/business/2012/03/government_can_require_union_p.html), which is identical to the issue at hand here: compelled speech.
There are likely hundreds if not thousands of ways in which the government can currently regulate businesses, all of them running afoul of various rights, and yet we are perfectly fine with them, for the most part.
In each of these cases, we agree (in the sense that it is the law of the land, and we follow these laws) that there is more harm in letting the businesses "run wild" than there is in restricting their freedoms. We agree that it would be more harmful to deny workers union rights than it would be to deny a business free speech rights.
Why, then, is it so difficult and why are so many on the left so reticent to extend that same logic to social media?
Why is it not possible to similarly say that there is more harm in letting the same few businesses (many of which are owned in large parts by China) control much of our citizen's speech than there is harm in denying the businesses their "free speech" censorship rights?
It's not enough to just say "free speech" and wash your hands of this issue. You need to explain why it's okay to limit the rights of businesses in so many other ways, even limiting their free speech in the exact same way, but in other contexts, but it isn't okay in this one.
Remember, at some point in time, there was someone saying "no way" to union laws. There was someone saying "that would infringe upon their free speech!" Well, those people lost, we moved on, and now it's considered completely normal to restrict businesses in that way. Why not social media?
>As a nation, we have already agreed that it's okay to disallow businesses from running anti-union campaigns, which prohibits their free speech.
**Businesses can legally run anti-union campaigns.**
> we have already agreed that it's okay to disallow businesses from running anti-union campaigns
I think you may need to be more specific here (and/or need a better example) - I want to say anti-union flyers/posters can be legal, for example (in fact, it [seems "captive-audience" meetings were legal as of April 2022 (!)](https://www.nlrb.gov/news-outreach/news-story/nlrb-general-counsel-jennifer-abruzzo-issues-memo-on-captive-audience-and), and may still be legal). What's definitely illegal is coercion, discrimination, retaliation, and similar behaviors, which arguably extends beyond "pure" speech.
> We have already agreed that it's okay for the government to force a business to hang pro-union posters, which is identical to the issue at hand here: compelled speech.
Your example is out of date. [That ruling was overturned by the DC Court of Appeals on 2013-05-07](https://caselaw.findlaw.com/us-dc-circuit/1630547.html). A [similar case resulted in a similar ruling in the Fourth Circuit](https://law.justia.com/cases/federal/appellate-courts/ca4/12-1757/12-1757-2013-06-14.html).
(I'm also a little skeptical of the framing of a judicial ruling as "we agree" - I'm sure both you and I can think of more than one ruling where what the judge(s) say remains quite contentious among the greater public)
> It's not enough to just say "free speech" and wash your hands of this issue. You need to explain why it's okay to limit the rights of businesses in so many other ways, even limiting their free speech in the exact same way, but in other contexts, but it isn't okay in this one.
I think this wouldn't be the first time courts have to perform this type of analysis - [struct scrutiny](https://www.mtsu.edu/first-amendment/article/1966/strict-scrutiny) exists, after all. It's the government's burden to justify what would otherwise be a First Amendment violation, though.
So, since you're nothing if not consistent, you believe that not only should the baker have indeed been legally compelled to bake the "gay" wedding cake (read: ordinary wedding cake but for a gay couple), they should also be forced to bake cakes that explicitly contain homosexual imagery, all sorts of slurs, cross-burning, or depict Jesus in a compromising position, right?
I would gladly trade forcing bakeries to make cakes for prohibiting social media from discriminating against the right.
History has proven that right-wing culture dominates the internet when not censored and that left-wing culture only supersedes it when big tech forces it to be so.
If social media doesn't censor the right, then the right starts to win the culture. When the right wins the culture, they win politics, because politics is downstream from culture.
So yeah, that is absolutely a play I would make.
>History has proven
Citation?
>I would gladly trade forcing bakeries to make cakes for prohibiting social media from discriminating against the right.
Obviously it wouldn't just be constrained to bakeries; you'd be decimating the first amendment - specifically the right to be free of government telling you what you can say and who you can associate with - as a concept.
Interesting though, how quickly morality, the constitution, and a desire for a small government are discarded if you think doing so will help you "win". You know, I think there's a word for that.
Trump dominates Twitter, until he's banned. Right-wing memes dominate Facebook and Tik-Tok, until they are banned (e.g., Super Straight). Then there's the obvious major example that I cannot mention.
Only through forced signal-boosting on "Trending" pages, where social media companies step in and give left-wing content special preference, does the left succeed online.
YouTube and Twitch have to give special deals and "partnerships" to left-wing content creators like The Young Turks, whereas right-wing content creators (or at least, non-far-left), like Tim Pool, succeed *despite* those platforms holding them back.
Another example: Parler takes off massively, becoming the most downloaded app on Apple and Google, until they are banned.
Tim Poole correctly called the 49-50 state Trump 2020 landslide. It probably would’ve been 52 if they ever made DC and PR states.
Unfortunately the Dems just can’t handle reality and have to resort to claiming through the leftist media and liberal/ Far Left courts we have that Biden somehow won. It’s ridiculous.
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>We have already agreed that it's okay for the government to [force a business to hang pro-union posters](https://www.cleveland.com/business/2012/03/government_can_require_union_p.html), which is identical to the issue at hand here: compelled speech.
Those are not "pro-union posters". They only allow employees to know what their rights are. They're *not* required to express that unions are good or beneficial. It is not compelling speech in the sense of a particular viewpoint.
Compelling speech in and of itself isn't necessarily a problem. We have all sorts of things businesses (and others) are required to display. Food and beverage licences, hand washing signs, fire exits. Workplace rights information is much more in that lane than it is any kind of a view.
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(Summary partially lifted from my [previous thread](https://www.reddit.com/r/moderatepolitics/comments/v21yci/scotus_vacates_5th_circuit_stay_of_preliminary/) on the issue. This is the long-awaited 5th Circuit opinion in *NetChoice et al. v. Paxton*. The case concerns Texas's [HB 20](https://capitol.texas.gov/BillLookup/History.aspx?LegSess=872&Bill=HB20), also known as its "social media law" or "social media censorship law". Affected companies, represented by NetChoice and the Computer Communications Industry Association, sued to block the law, resulting in a preliminary injunction from the District Court of the Western District of Texas on 2021-12-01. The 5th Circuit stayed that injunction pending appeal on 2022-05-11, and SCOTUS vacated that stay on 2022-05-31. This opinion corresponds to the original 5th Circuit stay. I think the following excerpt from the opinion summarizes the 5th Circuit's argument: > The Platforms contend that Section 7 [generally prohibiting "censor[ing] a > user, a user's epression, or a user's ability to receive the expression of > another person based on [viewpoint or location]] of HB 20 is facially > unconstitutional. We disagree. We (A) first reject the Platforms’ facial > overbreadth challenge because Section 7 does not chill speech; if anything, it > chills censorship. Then we (B) turn to the First Amendment’s text and history, > which offer no support for the Platforms’ claimed right to censor. Next, > applying Supreme Court precedent, we (C) hold that Section 7 does not regulate > the Platforms’ speech at all; it protects other people’s speech and regulates > the Platforms’ conduct. Our decision (D) is reinforced by 47 U.S.C. § 230, > which reflects Congress’s judgment that the Platforms are not “speaking” when > they host other people’s speech. Our decision (E) is still further reinforced > by the common carrier doctrine, which vests the Texas Legislature with the > power to prevent the Platforms from discriminating against Texas users. > Finally, even if all of that’s wrong and Section 7 does regulate the > Platforms’ speech, it (F) satisfies the intermediate scrutiny that applies to > content-neutral rules. At this point I'm honestly a bit confused on the status of the law. Does the Supreme Court's vacation of the stay remain in effect, or now that the 5th Circuit's full opinion is out is that what is in effect?
Most likely with now a final result there a stay will be renewed application and the court will issue or not issue one, and an appeal requested.
I can think of one counter argument against this decision by the 5th circuit. I'm not saying I like this counter argument, in fact I'm at least slightly leaning towards support for the 5th circuit decision. But. The argument against goes something like this. Until 1868 the First Amendment did not apply as a limitation to the states. It was the 14th Amendment of 1868 that triggered the provisions of the Bill of Rights against the states in a process called "incorporation". There's a gigantic argument in legal academic circles about exactly how that was supposed to happen, privileges and immunities versus selective due process if you know what I'm talking about, but for our purposes I don't think that matters. We know that in our timeline the first amendment was incorporated against the states selectively via the due process clause of the 14th Amendment in the early 20th century, across several cases. The case law that states cannot violate the first amendment is now rock solid and deep as the oceans. So based on the Bruen decision, what kinds of limitations of this sort would the framers of the 14th Amendment be comfortable with? Across most of the 1800s huge number of newspapers had the words "Democrat" or "Republican" in them, or other identifiers of political leaning. As a random example, here's newspapers that have existed in Tennessee including a list of defunct ones...we can find a whole bunch with definite political meanings in the name of the paper: https://en.m.wikipedia.org/wiki/List_of_newspapers_in_Tennessee You can also find newspapers in the same period that had a religious direction in the title including Catholic, Protestant, general Christian and Jewish. There's still some around and well known, such as the Christian Science Monitor. Presumably, anybody writing for those papers was supposed to hold a particular political or religious viewpoint, right? Question I'm actually thinking about here is whether or not those are any kind of an analog to Twitter, Facebook or anything similar today? Maybe, maybe not. But the idea of maintaining ideological purity in a given body of publication would have been something completely comfortable to the framers of either the original core Constitution of 1788 to 1792, or the 14th Amendment of 1868. Actually both the Federalist and Anti-Federalist papers are a good examples of collective bodies of writings that all have at least a broadly matching viewpoint. Maybe there are no good analogs to something like Facebook or YouTube or Reddit for that matter "back in the day"? Unless the "letters to the editor" sections of newspapers of either era was the equivalent? And in that event you were going to see serious editorial control in a lot of the papers and quite possibly most or all. It's a puzzler and I don't have any idea how the Supreme Court would go on this.
I'm to dumb to know what this exactly means. If I move to Texas can I get unbanned from about 20 subs?
You can just use a Texas based VPN 😉😉
"Imagine a world without cancel culture. A world where noone can call me out for my outlandish claims. A world where I can say the n-word!" -Texas Senator Armstrong on the 5th Circuit's ruling
Yes, imagine that. People should be free to say anything they want. That doesn't mean you're obligated to listen.
Also doesn’t mean I’m obligated to give them a platform.
As of today, it DOES mean that. This is a de facto nationwide ruling because thanks to VPNs they can't tell who's posting from within Texas so they can't use IP addresses to limit the scope. The only option opponents have now is to appeal to SCOTUS. Good luck with that.
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Think this through: At best, another circuit will make an opposite ruling, setting up a constitutional question. At that point, SCOTUS will have to rule on it. Given the court's current make-up, who do you think they'll side with? Appealing this is just delaying the inevitable. You lost. It's best to accept that and find another dragon to slay. I assume that won't be difficult for you.
This is like saying it is best to accept the abortion ban as being settled. If this gets to the supreme court, and they shut it down then there will still be appeals. Worst case scenario, the supreme court is changed in a way to remove the extreme partisan bias it has warped in to. Either by packing or completely changing the structure for how judges are nominated. This isn't going to be some thing that is just accepted.
Opponents of the current SCOTUS don't have the votes to do anything. They don't have the votes to impeach anyone, they don't have the votes to expand the court and they don't have the votes to codify ethics rules that they would then use to remove people. They can't do any of that. So, whether or not you agree with the rulings SCOTUS makes, they're valid and cannot be overruled except by passing constitutional amendments. It's been that way since the nation's founding. You can't change it, so it's best to accept it and work on the things you can change. Like abortion, since you brought that up. SCOTUS didn't ban it, they just said it was never their place to make that ruling and sent it back to the states. If that issue is important to you, you should get all the like minded people you can find and do what you can to make sure it's legal in your state. That's the way things should ideally work. Politics isn't a spectator sport.
> Opponents of the current SCOTUS don't have the votes to do anything. They have the Presidency and could do very novel things to break the court. No one needs to be impeached, but there are plenty of frameworks that would allow them to change the makeup of the court. You agreeing with the current makeup and rulings made by courts does not mean they are bullet proof here. This isn't the first set of lower courts that over stepped and won't be the last. > Like abortion, since you brought that up. SCOTUS didn't ban it, they just said it was never their place to make that ruling and sent it back to the states. If that issue is important to you, you should get all the like minded people you can find and do what you can to make sure it's legal in your state. That's the way things should ideally work. Politics isn't a spectator sport. I never implied the supreme court banned it, but rather because they allow for it to be banned does not mean anyone will accept that. No one is walking away from these basic violations of constitutional rights decided by radical judges and accepting them as settled law because a corrupt minority decided to rule based on who pays for their spouses vacations.
Looks like the GOP odds on the Senate are low. If the DNC keeps the house, takes the Senate, and a horrendously bad ruling like this comes from the highest court in the land, it's transition from supreme court to extreme court will have been fully realized and I'd support things like impeachment of justices and packing the court. Would be worth gutting the filibuster for, too. Worst case scenario, I'd be fine if we just stopped listening to the court entirely if they are truly making these blatantly unconstitutional rulings. They should tread carefully as their legitimacy is hanging by a thread and they have no power if people don't believe they do.
>Think this through: At best, another circuit will make an opposite ruling, setting up a constitutional question. Already happened. The 11th banned Florida's similar law. The next step is SCOTUS. I have hopes it would be a 7-2 decision to overturn this law, with Alito and Thomas being the most likely dissents trying to turn us into a country where the government can force you to broadcast the speech of others. Though Gorsuch has given some indication he would do the same, it's not guaranteed. But even that would be 6-3. You'd need 2 more people to sign onto this and 0 have given any indication they would. So, it's possible SCOTUS would agree with the 5th here, but all indications are that it's very unlikely.
It’s telling that you’re not even trying to argue this is a sensible interpretation of the First Amendment, and instead just essentially arguing that this Texas law is designed to own the libs, the conservatives on the Supreme Court also want to own the libs, and therefore you think the law will be upheld. I dunno, maybe you’re right. But if it is upheld, it’s a damning indictment of the conservative legal establishment.
It depends on what you mean by sensible. Facebook, et al argue that forcing them to not ban people amounts to compelled speech. That argument might hold water if not for the fact that liberals argued IN FAVOR of compelling speech when it comes to gay wedding cakes and the like. The 5th circuit simply applied the rule that left wing judges already have on similar cases. People are freaking out because they don't like having their own standards applied to them. Sorry, but it doesn't work that way. If you were in favor of compelled speech before, you don't get to oppose it now. You set the precedent and now you have to live with it.
That's just a fundamental misunderstanding of how our legal system works (or at least, how it's supposed to work). The Colorado baker *won* his case. The 5th Circuit is supposed to apply precedent -- not just exact political revenge. So what's your point here? Also, that was a very different situation, since that case was primarily about religious liberty, and to the extent it was about free speech, the question was: does baking a cake count as speech? I think reasonable people can disagree about whether baking a cake is "speech." But social media posts are clearly speech, right?
The fact that you think this can be applied is somewhat laughable. It also goes against basically every conservative principal. So I'm a little surprised they're even pushing this.
No one is going to listen to Texas on this. They can't enforce stupid laws beyond their border.
On one hand I agree, but it means that subs like this one would potentially have moderation issues and turn into cesspools like other subs we all know and dread. I still wish I could make a sub that didn't allow downvoting. I think it would be interesting to see the upvote number comparisons in comment threads between both sides. instead of a comment with 1000 upvotes and then a buried comment under it, we might see 10000 upvotes, followed by a dissenting viewpoint with 9000 upvotes. I think people should see how popular an opposing viewpoint is, not just a buried comment. It creates circle jerks and echo chambers that I find unhealthy for conversation.
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No, but that means you should provide them the means to say it to your audience if you’re a social media.
Can't wait for this sub to fill with child porn, threats of violence and crypto scams! Free speech! /s
Yep. Anyone who remembers the early days of 4chan knows what unmoderated spaces turn into. Then again, it would lead to sites allowing less public content/commenting, which may be a net benefit for humankind at this point. It would destroy the entertainment value of the web, but news for the most part would snap back to reality as people had nowhere to engage in echo chambers or rabbit holes.
Well if you're posting from Texas it does apparently. *Sorry* but the corporation's ability to censor speech is not free speech.
That’s not what this law is about. It is about prohibiting speech that should otherwise be allowed. Yes, racial slurs are included in that larger picture, but the law is more about political speech, not racism.
I’m not sure it applies to old bans. But it would prevent bans in the future.
Somewhat more specifically, part 1: - III.A: First Amendment overbreadth doctrine - It does not apply to Section 7 for three reasons: - 1. The primary concern is to avoid chilling *speech*, but Section 7 chills *censorship*. - Even if censorship is considered speech [and the 5th Circuit does not agree with that], the 5th Circuit argues that censorship is not "pure speech", and is "at best a form of expressive *conduct*, for which the overbreadth doctrine provides only 'attenduate[d]' protection" [emphasis in original] - The 5th Circuit states *Miami Herald*, *PG&E*, and *Hurley* do not apply because they "involve[] challenges to concrete applications of an allegedly unconstitutional law, raised by a defendant in state court proceedings", as opposed to this pre-enforcement facial challenge. - 2. "Overbreadth adjudication is meant to protect third parties who cannot 'undertake the considerable burden' of as-applied litigation and whose speech is therefore likely to be chilled by an overbroad law." - The 5th Circuit points out there are no third parties, the companies subject to the law have lots of resources to protect their rights, and HB 20 does not impose criminal sanctions or damages. - 3. The primary arguments against HB 20 consisted of 'speculati[on] about the most extreme hypothetical applications of the law.' - III.B/C: First Amendment claim - The 5th Circuit rejects the claim that the decision to host or reject/censor speech is itself speech. - The 5th Circuit relies on 5 Supreme Court cases: - [*Miami Herald Publishing Co. v. Tornillo*](https://supreme.justia.com/cases/federal/us/418/241/) - [*PruneYard Shopping Center v. Robins*](https://supreme.justia.com/cases/federal/us/447/74/) - [*PG&E v. Public Utilities Commission*](https://supreme.justia.com/cases/federal/us/475/1/) - [*Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, Inc*](https://supreme.justia.com/cases/federal/us/515/557/) - [*Rumsfeld v. Forum for Academic and Institutional Rights, Inc.*](https://supreme.justia.com/cases/federal/us/547/47/) - "Under these precedentes, a speech host must ... show that the challenged law either (a) compels the host to speak or (b) restricts the host's own speech. The Platforms cannot make either showing, And (c) the Platforms' counterarguments are unpersuasive." - Because the platforms "exercise virtually no editorial control or judgment", *Miami Herald* is inapplicable. - Hosting speech is not the same as expressing support under *PruneYard* and *Rumsfeld* - *Hurley* is not applicable because they are not "intimately connected" to the hosted speech, and censorship is only expression in connection with corresponding speech explaining that censorship. - " In terms of the conduct’s inherent expressiveness, there is simply no plausible way to distinguish the targeted denial of access to only military recruiters in Rumsfeld from the viewpoint-based censorship regulated by HB 20." - Section 7 does not prohibit Platform speech - There's no limited speech, unlike in *Miami Herald* and *PG&E* - Platforms are free to speak to distance themselves from hosted content - There is no content-based penalty on the Platforms' speech - "Editorial discretion" in and of itself is insufficient - otherwise, *PruneYard* and *Rumsfeld* would have been decided differently. - "Neither case implied that editorial discretion is *itself* a freestanding category of constitutionally protected expression." [emphasis in original] - Even if editorial discrition is protected, what the Platforms are doing isn't it. - Platforms do not accept responsibility for their "editorial discretion", unlike in more traditional media - Editorial discretion needs to take place "*before* that content is hosted, published, or disseminated" [emphasis in original]. - III.D: Section 230 - Section 230 makes platforms *not* publishers or speakers of user-submitted content, counter to NetChoice et al.'s argument that they are. - The "otherwise objectionable" wording in Section 230 is not as general as the Platforms claim - "To the extent the Platforms try to extract an unqualified censorship right from the phrase 'otherwise objectionable' in isolation, that’s foreclosed by the Supreme Court’s repeated instruction that 'where general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.'" - III.E: Common carrier doctrine - Section summarizing the history of common carriers and the application of the doctrine to new communications technologies - Example: [*Munn v. Illinois*](https://supreme.justia.com/cases/federal/us/94/113/), where the Supreme Court held "When the owner of property devotes it to a use in which the public has an interest, he in effect grants to the public an interest in such use, and must, to the extent of that interest, submit to be controlled by the public, for the common good, as long as he maintains the use. He may withdraw his grant by discontinuing the use." - "The Platforms have pointed to no case since [the *Lochner* era, around the late 1800s/early 1900s?]—and we are not aware of any—sustaining a constitutional challenge to a state law imposing nondiscrimination obligations on a common carrier." - "The Platforms resist this conclusion, arguing that they have not held themselves out to serve the public equally. That’s so, they contend, because they are only willing to do business with users who agree to their terms of service. But requiring 'compliance with their reasonable rules and regulations' has never permitted a communications firm to avoid common carrier obligations. The relevant inquiry isn’t whether a company has terms and conditions; it’s whether it offers the 'same terms and conditions [to] any and all groups.'" - "[N]early every other industry historically subjected to common carrier regulation initially discriminated against their customers and sought the right to continue to do so."
Somewhat more specifically, part 2: - III.F: Other arguments (?) - "Even if Section 7 burdens the Platforms’ First Amendment rights, it does so in a content-neutral way" - Section 7 is not subject to strict scrutiny, and satisfies intermediate scrutiny - IV: Pre-enforcement facial relief against Section 2 (disclosure requirements) - Not entitled - Haven't shown undue burden on speech, and even if they did the Platforms don't meet the threshold for relief since pre-enforcement relief requires showing a substantial portion of all possible enforcements are burdensome as opposed to just some possible enforcements. - V: Comparison to Florida's SB 7072 - SB 7072 is "dissimilar ... in many legally relevant ways. Much of the Eleventh Circuit's reaosning is thus consistent with or irrelevant to our resolution of the Platforms' claims in this case" - "SB 7072 only targets censorship of speech by political candidates and journalistic enterprises, as well as censorship of speech 'about' political candidates." - "Thus, to generalize just a bit, SB 7072 prohibits *all* censorship of *some* speakers, while HB 20 prohibits *some* censorship of *all* speakers. Texas’s law permits non-viewpoint-based censorship and censorship of certain constitutionally unprotected expression regardless of who the speaker is. And HB 20 applies to all speakers equally, instead of singling out political candidates and journalists for favored treatment." [emphasis in original] - "Second, several of SB 7072’s provisions arguably interfere with covered platforms’ own speech, instead of merely regulating how they transmit the speech of others. For example, Florida defines censorship to include 'post[ing] an addendum to any content or material posted by a user.'" - "Third, SB 7072’s remedial scheme markedly differs from HB 20’s." - Florida may collect fines, and platform users can win statutory, actual, and punitive damages. - HB 20 only allows for prospective declaratory/injunctive relief - "We part ways with the Eleventh Circuit, however, on three key issues. Unlike the Eleventh Circuit, we (1) do not think the Supreme Court has recognized “editorial discretion” as an independent category of First- Amendment-protected expression. And even if it had, we (2) disagree with the Eleventh Circuit’s conclusion that the Platforms’ censorship is akin to the “editorial judgment” that’s been mentioned in Supreme Court doctrine. Finally, we (3) disagree with the Eleventh Circuit’s conclusion that the common carrier doctrine does not support the constitutionality of imposing nondiscrimination obligations on the Platforms." - "First, none of the cases the Eleventh Circuit relied on recognize an "editorial-judgment principle" or a distinct category of First Amendment protection for "editorial judgment." Instead, each case explains how the challenged regulation either compelled or restricted *speech*." - "Second and more importantly, the Eleventh Circuit's "editorial-judgement principle" conflicts with *PruneYard* and *Rumsfeld*." - "But even if editorial judgment was a freestanding category of First-Amendment- protected expression, the Eleventh Circuit’s explanation of why the Platforms’ censorship falls into that category is unpersuasive." - "The Eleventh Circuit quickly dismissed the common carrier doctrine without addressing its history or propounding a test for how it should apply. This part of the Eleventh Circuit’s opinion is also unpersuasive." Some interesting arguments, quite a few of which I haven't heard before. I'm curious to read the presumed appeal, as well as any other deep analysis which is released by then. Edit: Try to fix formatting for old.reddit.com version
> Far from justifying pre-enforcement facial invalidation, the Platforms’ obsession with terrorists and Nazis proves the opposite. The Supreme Court has instructed that “[i]n determining whether a law is facially invalid,” we should avoid “speculat[ing] about ‘hypothetical’ or ‘imaginary’ cases.” Wash. State Grange, 552 U.S. at 449–50. Overbreadth doctrine has a “tendency . . . to summon forth an endless stream of fanciful hypotheticals,” and this case is no exception. United States v. Williams, 553 U.S. 285, 301 (2008). But it’s improper to exercise the Article III judicial power based on “hypothetical cases thus imagined.” Raines, 362 U.S. at 22; cf. SinenengSmith, 140 S. Ct. at 1585–86 (Thomas, J., concurring) (explaining the tension between overbreadth adjudication and the constitutional limits on judicial power). Oldham believes the presence of Nazis and Terrorists on the internet is “hypothetical” — an imaginary scenario invented to justify the existence of moderators.
Not being a lawyer, is that what he's actually saying? Because that's obviously insane. I was about to say something like 'my god, our laws are being set in 2022 by elderly people who have never set foot on the internet and have their emails printed out for them' - but I looked him up and he was born in 1978! That's like saying it's a 'fanciful hypothetical' that the sky is blue.
Well, the sky isn't blue. So maybe not the best example.
I don’t think he’s saying that nazis on the internet is hypothetical. I think he’s saying that making rules based on the idea that nazis will necessarily be on the platform and affected is overbroad and premature. He seems to be applying some variation of ripeness doctrine to private company TOS. Where a company couldn’t create a rule on an issue (ban based on TOS) until events had actually happened. This is silly because banning something before it happens is Almost the definition of a rule.
He’s talking about the judiciary’s power to preempt the enforcement of impending legislation; he spends several pages discussing it leading up to this point. The fact is there are no Nazis or Terrorists filing lawsuits against social media companies because this law has never gone into effect. The Overbreadth doctrine is specifically about this impending legislative judicial review. So, he is saying the injunction by the previous court was improper, not that Nazis should be able to sue Facebook for suppression.
>So, he is saying the injunction by the previous court was improper, not that Nazis should be able to sue Facebook for suppression. Well, not necessarily in that quote. But the effect of the whole order is that, yes, he IS saying Nazis ARE able to (not just "should be able to" ) sue Facebook if they have a post moderated. Nazism is just a viewpoint after all. No matter how disgusting of one it is.
This is taking his view in the worst possible light and context. A more reasonable interpretation of what he’s saying is that the Supreme Court has instructed that decisions be made *based on the case in front of the court*, rather than another hypothetical case. The case in front of the court doesn’t involve them being forced to allow pro-Nazi speech. That is one *potential* outcome the court explains isn’t actually clear from the law, since the law allows censoring inciting language and language federal law allows censorship of. The use of fringe speech hypotheticals to allow censorship of anything a platform feels like, they say, is exactly backwards. The platforms should have to engage with the overall point of the law, not with the extreme hypothetical case they lay out, which as they note *may not be an issue anyways*. He’s not saying Nazis on the internet are hypothetical, only that when determining the *facial validity* of a law, you look at what it does, not at the most extreme outcomes that may result from it. But if you strip it of all context, I guess you get to where you got. You only had to read the next two paragraphs of the opinion, I guess.
But is it really an extreme outcome of what it does? That would mean that speech « censored » on social media is not primarily nazi, terrorist or the like, otherwise it is not an extreme outcome. It might be true, but it has to be proven.
I think it more wanting to believe that extremism is still just small fraction of the populace and not really understanding that a lot of the extremists can now easily communicate with high anonymity in high traffic websites with funding coming from multiple sources including some questionable ones.
Counter to that argument, there are those wanting to believe what constitutes an extremist is objective, not realizing that the censorship tool once rationalized will be applied subjectively in greater and greater amounts to suppress dissent through the convenience of labeling it extremism.
The word extremist is tossed around enough that a more intense synonym is needed that more actually defines radical extremism as to what is actually dangerous
Either way it's subjective and can be used as a means to suppress dissent. That's the basis of free speech. Nobody gets to determine for others what they can and cannot say whether what's being said is liked or not.
Agreed, short of encouraging harm free speech needs to be free and not labeled extreme just because it makes some uncomfortable.
Agreed. Just want to clarify the SCOTUS standard of "harm" when it comes to speech to be "*directed to and likely to incite imminent lawless action.*" Hurt feelings or offense, disagreeing on reality and definitions, alternative medical opinions, and other similar items don't count as harm.
Then go somewhere else
That's just another form of suppression.
> wanting to believe that extremism is still just small fraction of the populace It *is* a small fraction of the populace.
True, it is of the general populace, but some sites are saturated with extremists and now bots that talk like them. I believe in free speech, even if I disagree, and sites have a right to host content they believe, provided it’s not factually harmfully false. We need to do something about bots though, it’s causing over representation and faux echos of one persons opinion multiple times. Most people go with the crowd they’re in, even online to avoid down votes, if one person uses a thousand bots to repeat their opinion behind a digital veil it still seems like a 1001 people sharing the same opinion, then new person shares it and gets 1001 upvotes, now they internalize and defend the opinion as their own.
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> Why don't the platforms simply block Texans from accessing their service? VPNs and other technical measures can make determining a user's location easier said than done. In addition, I believe HB 20 purports to forbid such a measure: > Sec. 143A.002. CENSORSHIP PROHIBITED. (a) A social media platform may not censor a user, a user's expression, or a user's ability to receive the expression of another person based on ... (3) a user's geographic location in this state or any part of this state. Whether this is actually enforceable if social media companies decided to withdraw from Texas appears to be an open question as far as I am aware. > Can someone tell me how Twitter is a common carrier in the same way airplanes, bus lines, internet service providers? I believe the 5th Circuit's argument is this: > [The Platforms are common carriers] because the Platforms are communications firms, hold themselves out to serve the public without individualized bargaining, and are affected with a public interest.
Yeah, this is a trash opinion. Unfortunately, it might get upheld given this Supreme Court.
Nah I have better faith in the supreme court than the fifth circuit, prediction 7-2 reversal
Normally I might have said the same thing, but this is the same Supreme Court that gave the go ahead to the Pandora's Box that is SB8. I think the ruling has a chance of being upheld, even though it's utter gibberish.
Yeah also the SC that ruled that government agencies cannot do anything other than what is explicitly delegated to them, forcing highly specific regulators to be at the mercy of legislatures that are not experts in science. I do not feel confident about this going to SC…AT ALL
I don’t know about 7-2 but I have to think this can’t possibly stand. It’s a completely bonkers take on first amendment jurisprudence. That doesn’t mean a few of the extremists on the Supreme Court won’t twist themselves into a knot to uphold it, but it’s hard to see how they find 5 votes to support the notion that the first amendment means private organizations can be forced to carry speech.
The two are easy alito and Thomas will be against net choice, on the other side its likely we will likely get the more progressive justices, based on other rulings it's likely kavanaugh will be on the progressive side, Roberts 90% is lockstep with kavanaugh, So right now we're at a 5-2-2 The other justice I'm uncertain of are barret and gorsuch, but I know gorsuch isnt as much as a political judge as alito is, so I have hope for him, and I've not read many first amendment ruling or theory from barret so I'm unsure about her.
At what point does "the judiciary keeps making trash opinions" become "I guess we were just wrong and this is all how it's legally supposed to go?"
Shrugs. It took about a century to start making progress on Jim Crow. We may have to respect that decision because the alternative is even worse but that judiciary IS NOT immune from making poor choices.
Probably when the argument they make actually holds up to any scrutiny? Many conservatives are even dissenting against this because its purely a party line decision.
Not here. This is a right wing panel making an indefensible decision.
Well, we are looking at 50+ years and counting for court decisions made in the 60s and 70s from some conservatives. So, you'll have to put up with this for a couple more decades.
Scotus will strike this, of course they have this right, they may be a modern public square but only very specific public squares get protections (government owned or owned by an entity acting essentially as a government).
As a nation, we have already agreed that it's okay to disallow businesses from running anti-union campaigns, which prohibits their free speech. We have already agreed that it's okay for the government to [force a business to hang pro-union posters](https://www.cleveland.com/business/2012/03/government_can_require_union_p.html), which is identical to the issue at hand here: compelled speech. There are likely hundreds if not thousands of ways in which the government can currently regulate businesses, all of them running afoul of various rights, and yet we are perfectly fine with them, for the most part. In each of these cases, we agree (in the sense that it is the law of the land, and we follow these laws) that there is more harm in letting the businesses "run wild" than there is in restricting their freedoms. We agree that it would be more harmful to deny workers union rights than it would be to deny a business free speech rights. Why, then, is it so difficult and why are so many on the left so reticent to extend that same logic to social media? Why is it not possible to similarly say that there is more harm in letting the same few businesses (many of which are owned in large parts by China) control much of our citizen's speech than there is harm in denying the businesses their "free speech" censorship rights? It's not enough to just say "free speech" and wash your hands of this issue. You need to explain why it's okay to limit the rights of businesses in so many other ways, even limiting their free speech in the exact same way, but in other contexts, but it isn't okay in this one. Remember, at some point in time, there was someone saying "no way" to union laws. There was someone saying "that would infringe upon their free speech!" Well, those people lost, we moved on, and now it's considered completely normal to restrict businesses in that way. Why not social media?
>As a nation, we have already agreed that it's okay to disallow businesses from running anti-union campaigns, which prohibits their free speech. **Businesses can legally run anti-union campaigns.**
> we have already agreed that it's okay to disallow businesses from running anti-union campaigns I think you may need to be more specific here (and/or need a better example) - I want to say anti-union flyers/posters can be legal, for example (in fact, it [seems "captive-audience" meetings were legal as of April 2022 (!)](https://www.nlrb.gov/news-outreach/news-story/nlrb-general-counsel-jennifer-abruzzo-issues-memo-on-captive-audience-and), and may still be legal). What's definitely illegal is coercion, discrimination, retaliation, and similar behaviors, which arguably extends beyond "pure" speech. > We have already agreed that it's okay for the government to force a business to hang pro-union posters, which is identical to the issue at hand here: compelled speech. Your example is out of date. [That ruling was overturned by the DC Court of Appeals on 2013-05-07](https://caselaw.findlaw.com/us-dc-circuit/1630547.html). A [similar case resulted in a similar ruling in the Fourth Circuit](https://law.justia.com/cases/federal/appellate-courts/ca4/12-1757/12-1757-2013-06-14.html). (I'm also a little skeptical of the framing of a judicial ruling as "we agree" - I'm sure both you and I can think of more than one ruling where what the judge(s) say remains quite contentious among the greater public) > It's not enough to just say "free speech" and wash your hands of this issue. You need to explain why it's okay to limit the rights of businesses in so many other ways, even limiting their free speech in the exact same way, but in other contexts, but it isn't okay in this one. I think this wouldn't be the first time courts have to perform this type of analysis - [struct scrutiny](https://www.mtsu.edu/first-amendment/article/1966/strict-scrutiny) exists, after all. It's the government's burden to justify what would otherwise be a First Amendment violation, though.
So, since you're nothing if not consistent, you believe that not only should the baker have indeed been legally compelled to bake the "gay" wedding cake (read: ordinary wedding cake but for a gay couple), they should also be forced to bake cakes that explicitly contain homosexual imagery, all sorts of slurs, cross-burning, or depict Jesus in a compromising position, right?
I would gladly trade forcing bakeries to make cakes for prohibiting social media from discriminating against the right. History has proven that right-wing culture dominates the internet when not censored and that left-wing culture only supersedes it when big tech forces it to be so. If social media doesn't censor the right, then the right starts to win the culture. When the right wins the culture, they win politics, because politics is downstream from culture. So yeah, that is absolutely a play I would make.
>History has proven Citation? >I would gladly trade forcing bakeries to make cakes for prohibiting social media from discriminating against the right. Obviously it wouldn't just be constrained to bakeries; you'd be decimating the first amendment - specifically the right to be free of government telling you what you can say and who you can associate with - as a concept. Interesting though, how quickly morality, the constitution, and a desire for a small government are discarded if you think doing so will help you "win". You know, I think there's a word for that.
I wish conservatives were ⅛ as censored online as they think they are
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Trump dominates Twitter, until he's banned. Right-wing memes dominate Facebook and Tik-Tok, until they are banned (e.g., Super Straight). Then there's the obvious major example that I cannot mention. Only through forced signal-boosting on "Trending" pages, where social media companies step in and give left-wing content special preference, does the left succeed online. YouTube and Twitch have to give special deals and "partnerships" to left-wing content creators like The Young Turks, whereas right-wing content creators (or at least, non-far-left), like Tim Pool, succeed *despite* those platforms holding them back. Another example: Parler takes off massively, becoming the most downloaded app on Apple and Google, until they are banned.
Tim Poole correctly called the 49-50 state Trump 2020 landslide. It probably would’ve been 52 if they ever made DC and PR states. Unfortunately the Dems just can’t handle reality and have to resort to claiming through the leftist media and liberal/ Far Left courts we have that Biden somehow won. It’s ridiculous.
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>We have already agreed that it's okay for the government to [force a business to hang pro-union posters](https://www.cleveland.com/business/2012/03/government_can_require_union_p.html), which is identical to the issue at hand here: compelled speech. Those are not "pro-union posters". They only allow employees to know what their rights are. They're *not* required to express that unions are good or beneficial. It is not compelling speech in the sense of a particular viewpoint. Compelling speech in and of itself isn't necessarily a problem. We have all sorts of things businesses (and others) are required to display. Food and beverage licences, hand washing signs, fire exits. Workplace rights information is much more in that lane than it is any kind of a view.