A single Texas ruling could change the web forever
theatlantic.com
theatlantic.com
https://www.techdirt.com/2022/09/16/5th-circuit-rewrites-a-c...
Part of me would like to think that is enough to get it struck down given how sloppy it was. However it would also not surprise me at all if there was some feat of mental gymnastics that would allow it to be upheld either.
This is of low value, because (1) it is more about playing to prevailing Twitter threads (ooooh he dissed the founders as old white men!) rather than legal analysis; and (2) the legal analysis, such as it is, starts from the presumption that social media companies are press rather than another business ("The opinion reaches this conclusion by treating the owners of companies in the biz of speech as identical to the owners of other businesses."). I don't think that presumption is well-established.
Critical take: https://www.lawfareblog.com/fifth-circuits-social-media-deci...
This one is much better. For example, it rightfully points out that the Fifth Circuit opinion does a poor job connecting its analysis of editorial discretion to First Amendment jurisprudence ("the court never explains why public acceptance of responsibility is necessary as a matter of constitutional law, for First Amendment protection"). In my gut, I still don't agree, but I may come around after digesting this more. This critical piece is of high quality.
Supportive take (summarized): https://reason.com/volokh/2022/09/23/another-commentary-on-t...
I can't find the original source, but the pulled quotes seem insightful. "The opinion's critics argue that the First Amendment protects the act of exercising 'editorial discretion': the right of platforms to control what content they transmit. But, critics forget that the First Amendment protects only expressive acts—a point made clear in the two Supreme Court case on which Big Tech (and Judge Oldham's critics) base all their critique: Miami Herald v. Tornillo and Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston. In Miami Herald, the Supreme Court held that when newspaper editors decide to include a particular op-ed in their pages, they convey the editors' message that the article is insightful or otherwise valuable. Similarly, the St. Patrick Day's Parade organizers in Hurley, expressed a message, attributable to them, of general support for each group it approved to march, communicating with the various groups a discrete set of ideas and positions. In contrast, most platform acts of content moderation are not expressive under the Supreme Court tests. Most obviously, they are not expressive because most are never communicated and therefore cannot convey a message. For instance, shadow banning, by which a platform renders a user's posts invisible to all but that user, cannot convey a message because no one knows, except the platform, that it is happening."
That's nonsense. Anyone on a heavily moderated forum can see that the "message" produced from proper moderation (things you can't see like behind the scenes spam prevention and banning) have a visible result in a higher quality forum experience. We literally see this here. Moderation is a choice, and by what things you do to moderate, you are making editorial choices that have outward effects. If you decide to shadowban any account not posting from florida, that will have an outwardly visible message that non-floridians are unwelcome. The first amendment makes no mention about the type of speech that congress cannot make a rule against.
Consider a store. If the Gay-Straight Alliance or similar approaches hobby lobby about some promotion, and hobby lobby says no internally, there's no outwardly visible evidence without affidavit from GSA and yet that's still a protected choice of Hobby Lobby over their own speech.
The threat of making ISP's liable for content is, by far, worse.
"What, I can't delete stuff from the forum I run? Geez."
"Wait, so that means I'm not liable for it? Phew, actually!"
"Oh, and so that means I don't have to police the forum content to comply with laws? Fantastic news: less uncompensated work for me!"
0.5: Ruling struck down on appeal in the near future
0.499999999: Ruling appealed and upheld, tech companies shrug and disable moderation, the money's still coming in so it's all good
0.000000001: Other
Especially if "disable moderation" also means turning off spam filters -- and I'm certain that spammers will try to use this ruling to force that.
Brand Advertisements would just disappear from the internet and stick to the highly regulated TV slots but Mtn Dew isn't going to layoff its whole advertising team just because X Webpage has Pro-Nazi comments.
It would be a wild west for trolls, and finding a section of the internet where you could have rational and civil conversations like this would be like finding a cave where as long as you don't make too much noise the zombies won't hear you and come running.
> 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: (1) the viewpoint of the user or another person; (2) the viewpoint represented in the user ’s expression or another person ’s expression; or (3) a user ’s geographic location in this state or any part of this state.
> "Censor" means to block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression.
[0]: https://capitol.texas.gov/BillLookup/Text.aspx?LegSess=872&B...
We don't consider it censorship if I want to market to people only in Iowa. It doesn't mean I'm demonetizing people who have content for and about Nebraska. I can also choose not to run my ads on certain apps or websites on a one-off basis.
(source: many, many former extreme conservative acquaintances and friends, also a lot of time in my youth spent in the armed services listening to the most vocally angry people.)
they feel their opinions are being unfairly targeted because "snowflakes and princesses" (implying weak-minded people) view those talking points as hate speech, and hate speech is not covered by the first amendment of the US constitution.
they view the "hate speech" label as a loophole around free speech guarantees, and they feel it is wielded solely by liberals, and solely to silence their perfectly valid conservative views.
so, instead of understanding that reality might differ from their collective view of reality, two things which they view as being exactly equal, they instead attack what they view as the problem: unfair censorship. this ruling seems very likely to be based on this perspective, and if so, is intended to make the first amendment unenforceable in situations where moderation does not outright favor conservative viewpoints.
conservatives of this extremity can't compete for mindshare based on their viewpoint, so they compete by changing the rules.
this ruling goes against both the letter of the first amendment and the spirit of the first amendment.
Nothing required them to say anything of the sort when overthrowing Roe v. Wade. All they had to do was say "Come on, it was poorly justified back then and should be thrown out for just that reason." but they spent pages and pages trying to talk about there being a moral reason for denying women the right to abort something growing inside them. But they could not keep their personal biases out of the ruling. There's no reason to think any supreme court justice has ever kept personal bias out of their rulings. Each justice has a history of cases and outcomes they've overseen in their time, and usually they are chosen precisely because of that.
For instance, are you aware many of the justices appointed by Trump were the justices who oversaw the stopping of counting votes in florida for the 2000 election? It doesn't matter whether their personal opinion comes from a bible verse or a supposed interpretation of the constitution. They are still obvious, previously known biases towards or away from certain opinions, and these justices are appointed by politicized bodies. These justices are part of politics no matter what they may personally believe.
Supreme Court members (the formal title "Justice" seems laughable) have increasingly been chosen for their compliance with the ideology of the party in power. Since that coincides with the party who wrote this law, I think they'll have no trouble upholding it if they wish.
I have no idea what grounds they'll use for that, but I don't believe it's relevant. Only the actual decision matters.
Citation needed. Judges have differing judicial philosophies and those philosophies may run contrary to a political parties aims but it does not mean they are servants of political parties.
It is likely that the people who think their decisions are purely politically biased are the ones whose politics are not aligned with whatever the court decided. Rarely do they dig into the justifications and expert analysis for a given decision.
Both liberal and conservative leaning justices have ruled against things that the parties which helped appoint them wanted.
And that's actually much more reliable than paying them. People who can be bought can be out-bid. True believers will do it for nothing except the right to make their ideology the law of the land.
Not reading there justifications for why they made a decision just because the judge does not align with ones political view is ignorance, plain and simple.
Only reading the critical analysis of any viewpoint or decision without reviewing their legal justifications will lead to massive derangement in ones perspective.
Law and high level court decisions will have some form of logic to them which is worth examining before dismissing them as partisan.
In addition to this being widely thought, do you happen to have any evidence that indicates whether or not it is true? My initial inclination is to suspect that it is not.
My personal experience with arguments deriding the constitutional coherence of SCOTUS jurisprudence usually involves people who are bringing their own political/ideological bias into their evaluation of court rulings -- often without even reading the rulings themselves -- and/or applying their own idiosyncratic interpretations of the constitution. See, for example, discussions surrounding the Citizens United ruling, where almost all of the controversy involves incorrect assumptions of both what was at issue in the case and what the ruling concluded.
While there have been breaks with stare decisis in some important cases over the years, by and large, these seem to be exceptions rather than the rule. The idea of the court abandoning the increasingly expansive interpretation of the commerce clause that's been at the basis of a huge amount of federal law for the past century, just to enable Texas to regulate the internet for the entire globe, seems incredibly far-fetched.
If they were really "applying their own idiosyncratic interpretations of the constitution", we would see a wider variety of votes. Instead, we see the same lines come up over and over. Even if you don't read the counter-arguments, you know where to find them -- in the dissents from the Court members nominated by the opposite party.
I do not doubt that the vast majority of Citizens United discussions are of no merit -- that applies to practically every discussion. But you can find a scholarly disagreement in the decision of four Supreme Court members -- all of whom were nominated by the opposite political party.
Even if this case fails to "enable Texas to regulate the internet for the entire globe", I suspect that it will only do so via a 5-4 ruling with only 1 or 2 members failing to align ideologically. They are not absolutely unified in their partisan leanings. But when partisanship is the issue, they will vote along their partisan lines much more often than not.
So it does not strike me as at all unlikely that they will choose to allow Texas' law. I am not certain of it, but I believe that "incredibly far-fetched" is not a correct characterization.
I don't think that's a valid argument -- there are obviously differences in judicial philosophy that incline judges toward better apparent with one political faction or another, and non-unanimous rulings usually reflect different judicial philosophies.
> If they were really "applying their own idiosyncratic interpretations of the constitution", we would see a wider variety of votes.
No, you misunderstood. I was accusing those arguing that jurisprudence is politically motivated of looking at things through the lens of their own idiosyncratic interpretations of the constitution. We don't want the justices on the court doing this.
> I do not doubt that the vast majority of Citizens United discussions are of no merit -- that applies to practically every discussion. But you can find a scholarly disagreement in the decision of four Supreme Court members -- all of whom were nominated by the opposite political party.
No, I'm not claiming that discussions themselves have no merit, but rather that critiques of the ruling in public discourse are often based on factually incorrect assumptions about what the ruling involved.
There are even openly different ways that people approach "interpreting" the constitution.
Anyone who works with documents that "define" a contract or API should understand just how vague and useless the constitution is as a literal reference document. That's why the same words have been used to "justify" countless contrary opinions over just 250 years
I don't think that is the case and in fact I think you are getting it a bit backwards.
The justices have an ideology which forms their view on how to interpret the Constitution and there are some serious questions to be had on the Constitution. Enumerated vs implied powers, incorporation of the bill of rights, etc. Their ideology forms their views on these issues. Once they formed their view on these issues they believe that is the real meaning of the Constitution.
Their interpretation of the Constitution is then used to justify their rulings. It may look like they are doing the opposite, but that is because you don't understand their interpretation of the Constitution. They do tend to be decently consistent when you understand their positions on the Constitution.
It is clear that they are chosen for their positions based on the expected outcomes. Regardless of what's going on behind the closed doors, the outcomes seem entirely pre-determined based on the political affiliation of the President who nominated them and the Senate who confirmed them.
I personally don't think that the legal reasoning is as consistent as you believe it is, but I think that's a matter of opinion. I also don't think it matters, since the outcomes are the only thing that matters and are so highly correlated with partisanship -- as they were designed to be. The effect on the individual is the same.
Presumably we'll find out in this instance. The OP was claiming that the Court would certainly vote not to uphold a state law from their political allies. I've explained why I disagree. Next June we'll find out.
I'd say that this is true for the three liberal justices and the four most conservative justices. Roberts has demonstrated otherwise, and Kavanaugh to a lesser degree has joined him in disagreeing with the other conservatives on some cases
I think your view of the court is grounded in a sort of cynicism that becomes a self fulfilling prophecy. If we convince enough people to see the court as a political institution it will normalize packing the court, which will permanently turn it into a political institution
the merit of the court lies in its ability to operate independently of partisan influence. While this doesn't happen often, normalizing the court as a political institution will prevent it from happening entirely
Another possibility here is that social media sites impacted by this may implement a Reverse Great Firewall of Texas (and Florida), and possibly terminate employees living in those states who won't relocate.
One camp says the platforms are like newspapers, the other says they are like email companies. Imo the platforms are neither.
Content moderation is necessary, moderation of more extreme and malicious viewpoints is necessary, but in recent years a boundary has been crossed with regard to what constitutes "malicious" content (e.g. someone rationally questioning a supposedly widely held viewpoint and being silenced without explanation. The act of censoring someone for making a good faith argument solely because the censor disagrees is in itself malicious)
The companies have shown a lack of discretion in this regard and the current application of the 1st is unsustainable long term