Hacker News Reader

Comment by gfodor | Hacker News Reader

No, the ruling claims the 1st Amendment is irrelevant in determining the regulation of censorship because censoring speech is not speech. They go on to claim the 1st Amendment has a role to play in determining permissible restrictions on corporate censorship since such censorship can lead to a chilling effect on public speech. But they reject entirely the premise that forcing companies to platform speech is a form of regulating corporate speech.

I'm not going to comment on that conclusion, but your comment is a complete mis-frame of the argument, at least by my reading.

View on HN

> No, the ruling claims the 1st Amendment is irrelevant in determining the regulation of censorship because censoring speech is not speech.

This flies in the face of ample SCOTUS precedent--which the 5th Circuit is obliged to follow--that the 1st Amendment also provides a freedom from compelled speech as well as freedom of association.

Common carrier laws are the exception, however. Arguably, the big tech platforms of today have more power and influence over the public square, than ISPs did in the past.

It's very possible for two reasonable people to come to the opposite conclusions about whether the act is constitutional.

SCOTUS also ruled that the 1st Amendment allows compelling a mall (a private entity) to host petitioners, which is strikingly similar to this case: https://en.wikipedia.org/wiki/Pruneyard_Shopping_Center_v._R...

And we were happy to throw freedom of association under the bus to enforce civil rights.

Pruneyard is not relevant. There are three things that distinguish Pruneyard:

1. Pruneyard relied on a provision of the California state constitution. That provision is not in Texas's state constitution.

2. It was admitted by all parties that the petitioners were not disruptive to other people in the mall, and that nondisruption is central to why compelling the mall to host them was permissible. However, note that moderation frequently (I might even hazard inevitably) centers on activities that are ultimately disruptive to other consumers.

3. It was also admitted that no one would believe that the mall's hosting of the petitioners was not going to be seen as an endorsement of their beliefs, so it had no effect on the speech of the owner of the mall. This is the complete opposite of how it applies to social media: the tone, candor, and content of social media is central to the popular impression of the social media site, and therefore denying the operators the right to shape the content on their site necessarily is a restriction on their speech.

This is something that has been picked up correctly by every court to consider the application of Pruneyard to social media, well, every court except the Fifth Circuit, which appears to have decided that the rule of law is overrated and calvinball is a preferable state of affairs.

1. As I understand it, state constitutions are subordinate to the US constitution. In case of a conflict, the US constitution prevails.

2. "Disruption" is highly subjective. On one end of the scale is spam, on the other end is political speech that platforms declare is "harmful". Do you think the mall in question could get away with booting the petitioners, as long as they could provide some vague reasoning to how their stated politics lead to "harm"?

3. You move from "endorsement" to "tone", I suspect because you realize no-one in their right mind believes Meta "endorses" every post on Facebook. But the point is valid - the tone of social media is more central to their business than the tone of a shopping mall. But what tone can a platform's billion+ users claim to share? And should their desire to shape a tone, at that scale, supersede their users free speech interest?

1. Pruneyard relied on a provision of the California state constitution. That provision is not in Texas's state constitution.

This is simply not true. Both Texas and California have very similar Constitutional provisions.

California on speech:

Article 1 sec 2: Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.

Texas on speech:

Article 1 sec 8: FREEDOM OF SPEECH AND PRESS; LIBEL. Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press.

California on redress:

Article 1 Sec 3: The people have the right to instruct their representatives, petition government for redress of grievances, and assemble freely to consult for the common good.

Texas on redress:

Article 1 Sec 27: RIGHT OF ASSEMBLY; PETITION FOR REDRESS OF GRIEVANCES. The citizens shall have the right, in a peaceable manner, to assemble together for their common good; and apply to those invested with the powers of government for redress of grievances or other purposes, by petition, address or remonstrance.

Well good news, odds are SCOTUS will clarify.

But the issue is whether regulating moderation decisions are "compelled speech." The relevant Supreme Court cases on this address publication of articles in newspapers, which is quite different than online system hosting user-generated content.

How different? Newspapers have letters to the editor already.

> They go on to claim the 1st Amendment has a role to play in determining permissible restrictions on corporate censorship

How on earth did they arrive at that? I'm reading the text of the First Amendment and it's explicitly only talking about the government. These people call themselves Originalists?

Government creates laws which permit or forbid corporations from doing things all the time. In this case, laws allowing corporations to restrict free speech are balanced against laws which forbid such restriction on private citizens, and the constitutional law which says 'government cannot restrict free speech' is interpreted to mean also government cannot permit corporations to restrict free speech. Not a hard concept, for a modern law scholar, or a constitutional law scholar. The idea that speech can be restricted by a private entity in the US is the stretch that originalists would have a problem with (e.g. you can yell fire in a crowded theater and policies to the contrary are prior restraint and unlawful by corporations or by governments).

  "the constitutional law which says 'government cannot restrict free speech' is interpreted to mean also government cannot permit corporations to restrict free speech."

This is just a restatement of what I asked. Why is it interpreted to mean this? That's a total departure from the meaning of 1A.

I haven't read the details of the case, but surely that's not what's at issue.

I assume that the government is arguing that they are allowed to prohibit private parties from restricting speech, not that the government is required to impose such a prohibition.

It doesn't say that- it only says that corporations restricting speech isn't itself an act of free speech protected by the 1st Amendment.

Therfore that act of censorship can be subject to govt regulations.

>They go on to claim the 1st Amendment has a role to play in determining permissible restrictions on corporate censorship

This ensures the said govt regs stay in the lane of common carrier regulation, and don't encroach into govt regulations that restrict speech based on the content.

Which prevents the govt from outsourcing govt censorship to corporations via these types of regulations.

Unfortunately stuff like this is the consequence of the depraved selection process of loyalty and political alignment that a particular president valued above all else.

Many of the more… extreme elements on the ground backing this crap doesn’t care about precedent as they believe that the rapture and end of the world is near. It’s bizarre and unfortunately a very real factor.

Reply on news.ycombinator.com