> "No one—not lawyers, not judges, not experts in the field, not even the law's own sponsors—knows what compliance with this law looks like."
[1] https://arstechnica.com/tech-policy/2022/05/texas-law-bannin...
I'm half serious here. I would love to tell people about a new game I have on Steam (let's say), so I code a WebDriver "tool". It searches out gaming related Tweets and then expresses my political opinion. I have to press enter once for each post it makes. It's not a bot, since it only responds to user input from a genuine Texan. I even do a captcha by hand every once in a while.
I guess it goes back to your excellent quote, nobody know what compliance with this law looks like.
Heck, I'll even make two similar products and tie each to a different political party, so everyone can buy the product that matches their political view. My products are political statements, and 1% of all profits go to political causes!
I'm not faking, if you give me an incentive to let my political opinion seep into every aspect of my life, I can do it; even without incentive I find it hard to avoid. Being able to spam social media about my product without punishment is a pretty big incentive.
If I genuinely believe that the most important thing people can do to support <politician> is buy my product, that is still far - far! - from the most extreme political views out there.
Someone out there is pushing their product as a supposed political view, you drag them into court and find that they actually believe it, and they also genuinely believe the world is flat and the government is run by lizard people. What are you going to do? All their speech about those things is now protected.
The law is subjective, just like your spiteful view of it. And you can bet there are spiteful judges, just like you.
NB, I haven’t read the law and I wouldn’t be qualified to comment anyway, this is my interpretation of the comment you responded to.
It's whatever your acceptable-use policy defines "botting" to be, as long as that definition is viewpoint-neutral.
A restriction against "paying a bunch of college kids $50 to spam reply this message to people for 3 hours a day" is clearly a viewpoint-neutral one, and so, yes, it would be obviously legal.
Maybe I was in college and didn’t pay attention to this stuff or maybe the world has really gone mad.
Start treating people as people and not some political entity embodied in an activist form. Most of my friends are on the sidelines, thankfully. I treasure my relationships more, there isn’t too much time to live.
I’m exhausted.
Maybe for some people, participating in politics has been a matter of life and death - something they don't have the luxury to ignore.
It is not healthy for our society to demand that 100% of things be politicized - to claim that not politicizing stuff is immoral because some issues are profoundly impactful for some people!
I want the good, the equitable, the right, the just and far, far less of the political! Politics deserves the deference due politics in any particular situation - not that derived from catastrophizing the most extreme outcome and then universalizing it into the quotidian!
| Some might say that you and your friends' ability to sit on the sidelines is a form of privilege not available to everyone.
I say the ability and demand to turn everything into politics and require the same of everyone else is itself a form of privilege!
If what other people want is bad, inequitable, wrong, or unjust, then wanting the good, the equitable, the right and the just is politics itself.
First, the judicial power vested in us by Article III does not include the power to veto statutes. And that omission is no accident: The Founders expressly considered giving judges that power, and they decided not to do so. Several delegates at the Constitutional Convention suggested creating a “Council of Revision” consisting of federal judges and the executive. Jonathan F. Mitchell, The Writ-of-Erasure Fallacy, 104 Va. L. Rev. 933, 954 (2018). They wanted to empower this Council to veto Congress’s legislation, subject to congressional override. Ibid. A veto would render the legislation “void.” Ibid. But despite the best efforts of James Wilson and James Madison, the Convention rejected the proposal—three times over. Id. at 957–59. That means we have no power to “strike down,” “void,” or “invalidate” an entire law. See id. at 936 (explaining that “federal courts have no authority to erase a duly enacted law from the statute books” but have only the power “to decline to enforce a statute in a particular case or controversy” and “to enjoin executive officials from taking steps to enforce a statute”); Borden v. United States, 141 S. Ct. 1817, 1835–36 (2021) (Thomas, J., concurring in the judgment) (noting that “[c]ourts have no authority to strike down statutory text” and that “a facial challenge, if successful, has the same effect as nullifying a statute” (quotations omitted)); Kevin C. Walsh, Partial Unconstitutionality, 85 N.Y.U. L. Rev. 738, 756 (2010) (explaining that the Founders did not conceive of judicial review as the power to “strike down” legislation).
Second, the judicial power vested in us by Article III is limited to deciding certain “Cases” and “Controversies.” U.S. Const. art. III, § 2. A federal court “has no jurisdiction to pronounce any statute, either of a state or of the United States, void, because irreconcilable with the constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies.” Liverpool, N.Y. & Phila. S.S. Co. v. Comm’rs of Emigration, 113 U.S. 33, 39 (1885); accord Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178 (1803). This limitation on federal jurisdiction to “actual controversies” prevents courts from “ancitipat[ing] a question of constitutional law in advance of the necessity of deciding it.” Liverpool, 113 U.S. at 39; see also Broadrick v. Oklahoma, 413 U.S. 601, 610–11 (1973) (“[U]nder our constitutional system courts are not roving commissions assigned to pass judgment on the validity of the Nation’s laws.”). And it makes pre- enforcement facial challenges a particularly nettlesome affair. Such suits usually do not present “flesh-and-blood legal problems with data relevant and adequate to an informed judgment.” New York v. Ferber, 458 U.S. 747, 768 (1982) (quotation omitted). Instead, they require the court “to consider every conceivable situation which might possibly arise in the application of complex and comprehensive legislation,” forcing courts to deploy the severe power of judicial review “with reference to hypothetical cases.” United States v. Raines, 362 U.S. 17, 21–22 (1960).
Third, federalism. Invalidate-the-law-now, discover-how-it-works- later judging is particularly troublesome when reviewing state laws, as it deprives “state courts [of ] the opportunity to construe a law to avoid constitutional infirmities.” Ferber, 458 U.S. at 768. And “facial challenges threaten to short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution.” Wash. State Grange, 552 U.S. at 451. The respect owed to a sovereign State thus demands that we look particularly askance at a litigant who wants unelected federal judges to countermand the State’s democratically accountable policymakers.
[0] https://www.ca5.uscourts.gov/opinions/pub/21/21-51178-CV1.pd... (PDF)
I don't think the court actually wants appellants to disobey the law, so I find it hard to take this argument seriously.
This rationale for overbreadth adjudication is wholly inapposite here. First of all, there are no third parties to chill. The plaintiff trade associations represent all the Platforms covered by HB 20. Additionally, unlike individual citizens potentially subject to criminal sanctions—the usual beneficiaries of overbreadth rulings—the entities subject to HB 20 are large, well-heeled corporations that have hired an armada of attorneys from some of the best law firms in the world to protect their censorship rights. And any fear of chilling is made even less credible by HB 20’s remedial scheme. Not only are criminal sanctions unavailable; damages are unavailable. It’s hard to see how the Platforms—which have already shown a willingness to stand on their rights—will be so chilled by the prospect of declaratory and injunctive relief that a facial remedy is justified.
Third, the Platforms principally argue against HB 20 by speculating about the most extreme hypothetical applications of the law. Such whataboutisms further exemplify why it’s inappropriate to hold the law facially unconstitutional in a pre-enforcement posture.
(emphasis in original)
(c) If a social media platform fails to promptly comply with
a court order in an action brought under this section, the court
shall hold the social media platform in contempt and shall use all
lawful measures to secure immediate compliance with the order,
including daily penalties sufficient to secure immediate
compliance.