Supreme Court Asked For An Emergency Review Of Texas’ Dangerous Social Media Law
from the and-we're-off... dept
As you’ll recall, last Wednesday, the 5th Circuit surprised lots of people by immediately reinstating Texas’s ridiculous content moderation law that basically creates an open season to sue large social media sites for any moderation choices those sites make. The surprise wasn’t necessarily the judges’ decision, which had been telegraphed two days earlier via the judges’ (plural) extremely confused questions regarding the law (including saying that Twitter was not a website, which it is). The bigger surprise was that they reinstated the law just two days later, without any written opinion, or giving the plaintiffs (trade groups that represent many large internet companies) a chance to appeal. That’s just weird.
Late on Friday, the trade associations, NetChoice and CCIA, petitioned Justice Alito with an emergency application to stop the law from going into effect. Technically, it’s an “emergency application for immediate administrative relief and to vacate stay of preliminary injunction.” Just to break that apart: the law was passed, and the district court granted a preliminary injunction, blocking the law from going into effect (while noting the law was pretty clearly unconstitutional). The 5th Circuit’s reversal was putting a “stay” on the preliminary injunction, meaning that the law could go into effect. So, to block the law again, they need the Supreme Court to vacate the stay on the preliminary injunction blocking the law. Simple. Got it? Got it.
Also, the reason they petitioned Alito is that each Circuit court gets one of the Justices as that Circuit’s Justice, and Alito covers the 5th. So these kinds of emergency applications, which are part of the now infamous “shadow docket” of the court, have to go up to the Justice for that Circuit. If that Justice refuses, then the petitioners can try other Justices. In this case, on Saturday, Alito gave Texas until Wednesday to file a response.
The petition itself is worth reading. It’s 55 incredibly thorough pages. We’ll get to the content in a moment, but it’s worth noting that there is some serious legal fire power here, with a heavy focus on both knowing the law in Texas, and knowing the conservative Justices. The eye catching name is Paul Clement, former Solicitor General of the US under George W. Bush, who is extremely well known in legal circles and has been involved in tons of high profile cases. And then it also includes two recent Texas Solicitor Generals, Kyle Hawkins and Scott Keller, who both were appointed by current governor Greg Abbott, who pushed for this law. I mean, Hawkins only stepped down from that role last year. Notably, Hawkins also clerked for Alito at the Supreme Court (and one of the judges on the 5th Circuit panel). Another lawyer on this filing is Katherine Yarger, who clerked for Neil Gorsuch when he was on the 10th Circuit and Clarence Thomas at the Supreme Court. These are not coincidences.
As for the content of the request, it comes in with a strong opening:
Texas House Bill 20 (“HB20”) is an unprecedented assault on the editorial discretion of private websites (like Facebook.com, Instagram.com, Pinterest.com, Twitter.com, Vimeo.com, and YouTube.com) that would fundamentally transform their business models and services. HB20 prohibits covered social media platforms (many of which are members of Applicants NetChoice and CCIA) from engaging in any viewpoint-based editorial discretion. Thus, HB20 would compel platforms to disseminate all sorts of objectionable viewpoints—such as Russia’s propaganda claiming that its invasion of Ukraine is justified, ISIS propaganda claiming that extremism is warranted, neo-Nazi or KKK screeds denying or supporting the Holocaust, and encouraging children to engage in risky or unhealthy behavior like eating disorders. HB20 also imposes related burdensome operational and disclosure requirements designed to chill the millions of expressive editorial choices that platforms make each day.
First point they make is that the 5th Circuit’s stay without any opinion is problematic in itself, before even getting to the underlying law:
Yet, on Wednesday night, a divided Fifth Circuit panel issued a one-sentence order granting a stay motion filed by the Texas Attorney General five months earlier, allowing him to immediately enforce HB20. This unexplained order deprives Applicants of the “careful review and a meaningful decision” to which they are “entitle[d].” Nken v. Holder, 556 U.S. 418, 427 (2009). The Fifth Circuit has yet to offer any explanation why the District Court’s thorough opinion was wrong. This Court should allow the District Court’s careful reasoning to remain in effect while an orderly appellate process plays out.
They also point out that this rush to reinstate the law could interfere with the 11th Circuit, which heard Florida’s appeal regarding its similar law a few weeks before the 5th Circuit heard its appeal. The 11th Circuit is still waiting to rule (and the expectation is they may take a while). As the briefing here notes, immediately reinstating the Texas law upsets the status quo in a scenario where it’s likely that no matter what happens with both laws, the Supreme Court will have to hear a more fully briefed case about them at the relevant point in the future. But rather than letting any of that play out, the 5th Circuit was just like “yup, turn on the law.” Which is generally not how these things work.
Vacating the stay in this case will maintain the status quo while the Eleventh Circuit also considers a parallel appeal concerning a preliminary injunction against Florida’s similar law. NetChoice, LLC v. Moody, 546 F. Supp. 3d 1082, 1086 (N.D. Fla. 2021), appeal docketed, 11th Cir. No. 21-12355 (11th Cir. July 13, 2021). Until the Fifth Circuit issued this stay, the status quo had been maintained pending a decision from at least one federal court of appeals weighing in on the constitutionality of unprecedented state laws regulating the worldwide speech of only some governmentdisfavored social media platforms. And even then, that decision would not have gone into effect until the appellate court’s mandate had issued or the parties sought further review in this Court. By issuing a stay and allowing the Texas Attorney General to enforce HB20 while appeals are still pending, the Fifth Circuit short-circuited the normal review process, authorizing Texas to inflict a massive change to leading global websites and undoubtedly also interfering with the Eleventh Circuit’s consideration of Applicants’ challenge to the similar Florida law.
It also points out how damaging it is to just put the law into effect.
Furthermore, the covered platforms face immediate irreparable injury many times over. Unrebutted record evidence demonstrates that it will be impossible for these websites to comply with HB20’s key provisions without irreversibly transforming their worldwide online platforms to disseminate harmful, offensive, extremist, and disturbing content—all of which would tarnish their reputations for offering appropriate content and cause users and advertisers to leave. As one of Applicants’ declarants stated, HB20 “would force us to change all of our systems to try to come into compliance.” App.350a. And because there is no “off-switch” to platforms’ current operations, the cost of revamping the websites’ operations would undo years of work and billions of dollars spent on developing some platforms’ current systems. Id. Even if platforms could revamp their entire communities, they would lose substantial revenue from boycotts by advertisers who do not want their ads to appear next to vile, objectionable expression. In the past, YouTube and Facebook “lost millions of dollars in advertising revenue” from advertisers who did not want their advertisements next to “extremist content and hate speech.”
And then we get to the basics of the 1st Amendment issues inherent here, starting with a citation of the (very useful) Justice Kavanaugh-authored ruling three years ago in Halleck. We’ve pointed to that case regularly, as it says quite clearly that private platforms have their own rights to moderate as they see fit and the government should not interfere. It’s no surprise that this filing kicks off with a strong reminder of that ruling, followed by a long list of other famous cases regarding the constitutional problems with compelled speech and association, and closing it out with a cite to Justice Thomas’ concurrence in Denver Area v. FCC, which was basically a precursor case to Halleck.
More fundamentally, the Fifth Circuit’s order contradicts bedrock First Amendment principles established by this Court. When “a private entity provides a forum for speech,” it may “exercise editorial discretion over the speech and speakers in the forum.” Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1930 (2019). This Court thus has repeatedly recognized that private entities have the right under the First Amendment to determine whether and how to disseminate speech. E.g., Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group of Bos., 515 U.S. 557, 581 (1995); PG&E v. PUC of Cal., 475 U.S. 1, 12 (1986) (plurality op.);1 Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 258 (1974); see also Sorrell v. IMS Health Inc., 564 U.S. 552, 570 (2011); Arkansas Educ. TV Comm’n v. Forbes, 523 U.S. 666, 674 (1998); Denver
The simple reality is that until maybe a year or two ago, questions about the government compelling websites to carry speech easily would have been a slam dunk as unconstitutional under the 1st Amendment, with the most conservative members of the Court being the most vocal. It’s only in the last two years or so that a concerted effort has been made to flip conservatives completely into arguing that you can force private property owners to host speech. And both Thomas and Alito have publicly suggested they’re on-board with this position. This brief works hard to remind them, and their colleagues, of their principles, from back when it was believed they had them.
For what it’s worth, this is also likely why, later in the filing, the petitioners want to remind the Justices of the Masterpiece Cakeshop ruling, again specifically citing Thomas’ concurrence in that case.
Fourth, private entities cannot be compelled to disseminate speech even if they could “dissociate” themselves from the compelled publication by “simply post[ing] a disclaimer,” as that would “justify any law compelling speech.” Masterpiece Cakeshop, Ltd. v. Colorado C.R. Comm’n, 138 S. Ct. 1719, 1745 (2018) (Thomas, J., concurring). A publisher’s ability to disclaim compelled speech was present in Tornillo, PG&E, Hurley, and Wooley v. Maynard, 430 U.S. 705, 717 (1977). And the Court consistently held that government could not compel speech. (In any event, HB20 prohibits platforms from disclaiming compelled speech, because they are not permitted to “discriminate” among speech on their platform
The petition does a pretty nice job of laying out how content moderation is a form of editorial discretion, and that lots of websites wish to cultivate their own kinds of communities, and the government can’t just come in and interfere with that:
In short, platforms “publish,” Reno, 521 U.S. at 853, and “disseminate” speech authored by others, Sorrell, 564 U.S. at 570. But just as a newspaper does not publish every opinion piece it receives, these platforms do not disseminate all speech users submit—or treat all user-submitted speech equally. Instead, each platform has its own rules about what speech is acceptable for its particular service and community. Platforms all have hate-speech policies, for example. App.21a, 389a-445a. Platforms also differ in important ways that accord with the websites’ designs and different editorial policies and emphases. YouTube, for example, supports a “community that fosters self-expression on an array of topics as diverse as its user base,” while prohibiting “harmful, offensive, and unlawful material” like “pornography, terrorist incitement, [and] false propaganda spread by hostile foreign governments.” App.146a, 149a. Twitter allows a wider range of expression such as adult content.3 Other social media platforms—including Texas-favored websites excluded from HB20’s coverage that tout less-moderated communities—still have similar policies. App.115a, 134a.
For all platforms, the expressive act of policy enforcement is critical to the distinctive experiences that platforms provide their users—and to ensuring that the services remain hospitable and useful services. Without these policies, platforms would offer fundamentally worse (and perhaps even useless) experiences to their users, potentially overrun with spam, vitriol, and graphic content. App.20a-21a. The record confirms that when platforms have failed to remove harmful content, their users and advertisers have sought to hold platforms accountable—including through boycotts. App.126a, 135a-38a, 168a-69a, 187a. And when platforms have chosen to remove, or reduce the distribution of, objectionable content, they have faced criticism from users as well as elected officials. App.73a.
From the moment users access a social media platform, everything they see is subject to editorial discretion by the platform in accordance with the platforms’ unique policies. Platforms dynamically create curated combinations of user-submitted expression, the platforms’ own expression, and advertisements. This editorial process involves prioritizing, arranging, and recommending content according to what users would like to see, how users would like to see it, and what content reflects (what the platform believes to be) accurate or interesting information. App.21a; see App.312a (YouTube: “I believe in 2018 that data was about 70 percent of views are driven by recommendations.”).
Those decisions begin with the very basic design and functions of the site. YouTube and Vimeo, for instance, disseminate both videos and users’ comments on those videos. Facebook and LinkedIn have a broader range of videos and text. Instagram focuses on images and video, though it too has options for comments. Twitter is largely limited to 280-character text “tweets,” with options to post videos and images. TikTok has short videos. And Pinterest has images on digital “pin boards.” Across all these websites, platforms make decisions about the user interface and appearance of the platform. Some provide filters or parental controls to offer users even more curated experiences. And all this content appears next to the platforms’ distinctive branding.
Given their size and dynamic nature, platforms must constantly make editorial choices on what speech to disseminate and how to present it. At a minimum, this involves the platforms’ determination of what should show up at the top of users’ “feeds” and search results—which are functions the platforms engage in for each user and countless times a day. App.163a. Platforms also recommend or prioritize content they consider relevant or most useful. App.150a. Consequently, much like a newspaper must decide what stories deserve the front page, how long stories should be, what stories should be next to other stories, and what advertisements should be next to what stories, social media platforms engage in the same kinds of editorial and curatorial judgments both for individual users and the platforms as a whole.
The petition also digs deep into the ridiculousness of the no-explanation stay, leading to the law immediately going into effect:
The cursory manner in which the Fifth Circuit panel majority allowed HB20 to take effect alone justifies the granting of this Application. See Nken, 556 U.S. at 427
Last year, both Texas and Florida embarked on an unprecedented effort to override the editorial discretion of social media platforms and to compel them to disseminate a plethora of speech the platforms deem objectionable and antithetical to the speech they want to present to users (and advertisers). App.6a-7a; NetChoice, 546 F. Supp. 3d at 1085. Both laws are an undisguised effort to level the speech playing field and control “Big Tech.” To that end, both laws override editorial discretion and compel speech—imposing their burdens only on selected speakers and carving out favored content. App.28a-29a; NetChoice, 546 F. Supp. 3d at 1093-94. In short, the laws defy established First Amendment doctrine by taking virtually every action forbidden to state actors by the First Amendment.
Both states recognized that their laws would transform the Internet and fundamentally change the way platforms exercise editorial discretion and disseminate speech, so they delayed their effective dates to allow regulated platforms to try to come into compliance. App.9a; NetChoice, 546 F. Supp. 3d at 1085. Applicants took advantage of that interval to seek preliminary injunctive relief that would prevent the laws from taking immediate transformative effect, while allowing the parties to debate the legal issues and giving jurists time to consider all the issues as part of an orderly review process. The results were two well-reasoned district court opinions carefully explaining the provisions of the respective laws and each preliminarily enjoining those laws as rather obvious affronts to the First Amendment.
Those two decisions paved the way for an orderly appellate process in the courts of appeals. Florida did not even seek a stay of that preliminary injunction, but pursued a modestly expedited appeal that is fully briefed and was argued late last month. See Docket, 11th Cir. No. 21-12355. While Texas sought a stay, a Fifth Circuit motions panel referred that stay to the merits panel, which considered the important issues pursuant to an orderly appellate process that included full briefing and an oral argument. App.4a. But on Wednesday, a divided panel threw both the Internet and the orderly appellate process into chaos by issuing a one-sentence order purporting to allow the Texas Attorney General to enforce HB20 immediately. App.2a
As this Court explained in Nken, appellate courts may not enter stays pending appeal “reflexively,” but only after the movant has satisfied its “heavy burden,” and only after the panel has conducted “careful review” and issued a “meaningful decision.” 556 U.S. at 427; id. at 439 (Kennedy, J., concurring). Yet this one-sentence order explains nothing—in stark contrast to the extensively reasoned district court opinions that explained the various provisions of the laws, suggested some possible limiting constructions, and identified the precise constitutional defects. The Fifth Circuit’s order creates immediate obligations, compels all sorts of speech, and essentially forces Applicants to try to conform their global operations to Texas’s vision of how they should operate—and they must do so essentially overnight. Equally important, the order undermines the orderly appellate process in this Court (and the Eleventh Circuit), which necessitates this emergency application.
It did not have to be this way. Even if a majority of the Fifth Circuit panel disagrees with the well-reasoned opinion of the district court, it could have explained its reasoning in an opinion subject to the normal rules for issuing appellate mandates, which would then have permitted Applicants to seek rehearing and petition for certiorari. That course would have allowed an appellate process that gave this Court the same opportunity for the calm and orderly consideration that every other court has enjoyed in considering these momentous legal issues that go to the heart of the First Amendment.
There are many more arguments made in the filing, but I did want to call out two quick points raised in it that push back on specious arguments made by many (including people in our comments) to say that governments can force social media websites to host content. First, the two popular cases people like to bring up are PruneYard and Rumsfeld v. Fair. Those don’t apply (and I’ll note in passing that Clement argued the Rumsfeld case on behalf of the US government, so he should know).
Neither Rumsfeld v. FAIR, 547 U.S. 47 (2006), nor PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980), justify HB20 or Defendant’s “hosting” theory. Neither case involved private editorial choices about what speech to disseminate. See FAIR, 547 U.S. at 64 (“A law school’s recruiting services lack the expressive quality of a parade, a newsletter, or the editorial page of a newspaper.”); PruneYard, 447 U.S. at 88 (no “intrusion into the function of editors”). In PruneYard, the shopping mall “owner did not even allege that he objected to the content of the [speech]; nor was the access right content based.” PG&E, 475 U.S. at 12 (discussing PruneYard). And FAIR distinguished the “conduct” of a law school’s employment recruitment assistance from a “number of instances” where the Court “limited the government’s ability to force one speaker to host or accommodate another speaker’s message”—citing Hurley, PG&E, and Tornillo. FAIR, 547 U.S. at 63
And then there’s the whole “common carrier” bit, which they note is completely nonsensical in this context.
Seventh, social media platforms are not common carriers, and the First Amendment analysis would not change if they were. “A common carrier does not make individualized decisions, in particular cases, whether and on what terms to deal.” FCC v. Midwest Video Corp., 440 U.S. 689, 701 (1979). Far from “hold[ing] themselves out as affording neutral, indiscriminate access to their platform without any editorial filtering,” unrebutted evidence establishes that platforms constantly engage in editorial filtering, providing unique experiences to each user and limiting both who may access their platforms and how they may use the platforms, as discussed above (at pp.5-9) USTA, 855 F.3d at 392 (Srinivasan & Tatel, JJ., concurring in the denial of reh’g en banc) (emphasis added). Consequently, “web platforms such as Facebook, Google, Twitter, and YouTube . . . are not considered common carriers.” Id.; see also Cablevision Sys. Corp. v. FCC, 597 F.3d 1306, 1321-22 (D.C. Cir. 2010) (Kavanaugh, J., dissenting) (“A video programming distributor . . . is constitutionally entitled to exercise ‘editorial discretion over which stations or programs to include in its repertoire.’ As a result, the Government cannot compel video programming distributors to operate like ‘dumb pipes’ or ‘common carriers’ that exercise no editorial control.”) (citations omitted)
This Court’s precedents likewise recognize that government cannot convert private entities that exercise editorial judgments into common carriers. See FCC v. League of Women Voters of Cal., 468 U.S. 364, 379 (1984) (compelled publication unlawful because it would “transform broadcasters into common carriers and would intrude unnecessarily upon the editorial discretion of broadcasters”). This Court recognized that even television broadcasters have protected editorial discretion, id., though broadcasters receive less First Amendment protection than Internet websites. See Reno, 521 U.S. at 870.
In all events, even common carriers retain the “right to be free from state regulation that burdens” speech. PG&E, 475 U.S. at 17-18 & n.14. So HB20’s label as “a common carrier scheme has no real First Amendment consequences,” because “impos[ing] a form of common carrier obligation” cannot justify a law that “burdens the constitutionally protected speech rights” of platforms “to expand the speaking opportunities” of others. Denver, 518 U.S. at 824-26 (Thomas, J., concurring in the judgment in part and dissenting in part). Similarly, government cannot declare private entities’ dissemination of speech as a “public accommodation.” Hurley, 515 U.S. at 573
Anyway, there’s a lot more in there, but it’s a strong filing. Hopefully Alito recognizes that…
Filed Under: 1st amendment, 5th circuit, content moderation, hb20, samuel alito, section 230, social media, supreme court, texas
Companies: ccia, netchoice
Comments on “Supreme Court Asked For An Emergency Review Of Texas’ Dangerous Social Media Law”
Good luck with that.
Roe vs Wade was a strong filing. The “conservative” (really reactionary) judges are not prepared to acknowledge strong filings when they are in the majority. Now that they are able to ditch RAINO (Republican-appointed in name only) Roberts and can issue decisions without justification on their shadow docket, really all bets are off.
The legal system of the U.S. is doing its best to remain competitive with those of Turkey and Russia.
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Let’s not lionize Roberts. He’s less extreme than the other 5 conservatives on the Court, but he’s still more conservative than Kennedy, who was more conservative than O’Connor, who was a lot more conservative than the reputation she’s gained in hindsight.
All that said: I think it’s pretty likely that they kick this back for now and let the order stand, but I also think it’s likely that they’ll eventually overturn it on First Amendment grounds. SCOTUS has been extremely consistent in taking an expansive view of corporations’ First Amendment rights these past 15 years, and I’m skeptical that Roberts is the only conservative left on the court who still holds that position.
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It’s not “lionizing” someone to say that they are not part of by now a majority of ideology-driven hacks. That’s like saying someone is truly a feminist because they are not beating their wife in public.
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It is if they are.
I trust Alito to respect prior free speech precedent about as much as I trust Alito to respect the bodily autonomy of pregnant people.
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And you have no respect for children until they’re born and refuse to recognize and acknowledge that they are NOT “just part of a woman’s body” but are completely unique. Thanks for confirming that.
Re: Re: Watch how fast this anon disappears when asked Two Simple Questions!
I mean, if you really want to dig the grave for both your credibility and your sense of humanity, I’ll gladly give you the shovel.
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Regarding question 1, cf https://edition.cnn.com/2022/05/15/politics/nebraska-abortion-ban-roe-v-wade-cnntv/index.html . Nebraska governor Ricketts will “protect” the “preborn babies” of rapists and incest committers over the dead bodies of underage girls.
In his opinion, a woman’s autonomy over her body stops at the moment of conception. For one thing, it implies IUDs are murder weapons. For another, it means that if someone gets hold of a woman’s egg and fertilizes it with some sperm of his choice (not necessarily of entirely human origin), the woman is obligated to let herself be implanted with the egg.
Re: Re: Re:2 'The sanctity of life'... so long as you're not already born
They are just ripping off all the masks and dropping all the pretense of civility these days I see, it takes a truly monstrous person to declare that if a kid is raped and ends up pregnant from it that’s only the start of the violation of her bodily autonomy.
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…if someone gets hold of a woman’s egg and fertilizes it with some sperm of his choice (not necessarily of entirely human origin)…
Not actually possible. Humans are unique in having 46 chromosomes (47 in people with trisomy conditions), and so we can’t interbreed even with closely related primates, such as chimps.
Re: Re: Re:3
Gene sequencing is a thing.
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… said nobody capable of rational independent thought, ever.
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And you have no respect for children until they’re born and refuse to recognize and acknowledge that they are NOT “just part of a woman’s body” but are completely unique.
You have no respect for children AFTER they’re born. So why the fuck should we extend respect before that? I guess I missed the ‘pro-life’ stances on:
Tell me how those fucking things are supposed to work in conjunction with controlling the mother’s bodily autonomy. Because until I see how those basic after-birth needs are going to be provided for, you can take your ‘I don’t care until they’re born’ tripe and fuck yourself with it.
And let’s not forget the ultimate Dunning-Kreuger trait that states who are hell-bent on restricting abortion ALSO ALLOW FOR THE DEATH PENALTY.
Why don’t you fix that first? It seems so simple, if it’s all about life, isn’t it?
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It’s about life that may at one point in time be able to pay for an expensive lawyer. The death row inmate already got his chance.
Re: Re: Horrible consistency or sex-based hypocrisy, your choice
And you have no respect for children until they’re born and refuse to recognize and acknowledge that they are NOT “just part of a woman’s body” but are completely unique.
The people I go past on my walks are not a part of my body, does that mean I have a right to force them to give me a blood transfusion if I need one and they’re the only option in time, keeping in mind that in this hypothetical if they refuse I die?
Or how about organs, different people have different DNA/bodies so should organ donation remain optional or should that be legally mandated any time one person needs a replacement and a matching ‘donor’ just dropped dead?
Inquiring minds want to know, in addition to Stephen’s questions(which I’d love to see answered but don’t expect to) how far does your disdain for bodily autonomy and willingness to violate it for the sake of others go when it might be your bodily autonomy on the chopping block?
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Or how about organs, different people have different DNA/bodies so should organ donation remain optional or should that be legally mandated any time one person needs a replacement and a matching ‘donor’ just dropped dead?
That’s the current situation in the UK, pretty much. Organ donation has gone from opt in to opt out for adults. Thing is, I can live with that. It means I don’t have to carry a donor card anymore to make my choice clear, and if I should one day require a kidney transplant or something…
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But even then there’s an option to say ‘no’, which I’m fine with, in my hypothetical making use of the pro-birther argument that your bodily autonomy can be usurped if someone else needs it that would not be an option, turning it from a choice to mandatory where everyone would be an organ donor whether they wanted to be or not.
What does one wear to the celebration when a great nation becomes a banana republic?
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That depends: Will you be doing the celebrating or will you be someone over whose body the celebrating will be done?
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Vintage Hawaiian style shirts, a straw hat and a big cigar.
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A clown hat
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I thought that had been settled already? A red baseball cap with “MAGA” on it? And don’t forget to bring the piñata kraken!
When political affiliation of Judges becomes significant to their appointment, they become party hacks, and adherence to the constitution becomes secondary..
Re: You are imagining a middle man
The last three appointments were not because of political affiliation (there are sane Republicans) but because the justices could be relied upon for being hacks, particularly regarding the litmus test of Roe vs Wade, willing to put ideology first and the law second.
In short, they were not as much picked because they were good Republicans but because they were bad judges.
Judges: “What’s the tl:dr?”
Texas “Allow Trump back on twitter and stop facebook censoring those good people”
Judges: “absolutely fine – shred this other waste of paper”
Clerk: “The appeal”
Judges: “the Constitution”
Re: The importance of punctuation
At the very least, a question mark behind “The appeal” would bring your meaning a whole lot better across, but a few exclamation marks and periods would not be amiss either.
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Yep. Just re-read and spotted the missing question mark. On exclamation marks though, I stand with Terry Pratchett.
We’re Fucked
Considering it’s Alito, This is going to end very very badly.
Re: You can still appeal single-justice decisions
We are not fucked because Alito is first-responder. We are fucked because he has Thomas, Kavanaugh, Gorsuch and Coney Barrett having his back.
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What do you think the outcome will be?
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He’ll uphold it
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Nothing. Like with Texas’ abortion bounty hunter law, Alito et al can get their ideological kick in by just leaning back and not interfering with letting the clearly unconstitutional things run their course uninterrupted. Even should they get thrown out in the end, they get to be the law of the land for the years it takes to cancel them without emergency relief. Wash, rinse, repeat.
PLEASE, PLEASE!!
Let them create a site with NO controls.
PLEASE..
Would love to see the Crap war begin.
Come one, LET them do it. Force them to Create the site, PLEASE. Force them to WATCH IT and not control Anything. Make the republican party responsible for it. Let TRUMP stand at the front of it.
Let them take the Brunt of all the Audio/Music corps Jumping up and down. Of the proprietary Hardware perveyiours(SP) Jump on them as people plant the diagnostic backdoors To ever car on the market(neet one is you change your battery and you need a code to make your car work).
Dont forget to publish the truth about this country. no more blinders. Let them Publish that the People are RESPONSIBLE for what our congress DOES. Then comes the scary stuff, of where they are hiding all the Money paid to our Politicians.
Re: Please don't
Your telling trolls to create a troll platform for the purpose of trolling everyone. This is going to crash and burn, but its also going to give them a new platform to stand in front of that they will somehow pass a new law saying we all have to join it too.
Rule one #1 Don’t feed the trolls.
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Old-school ex-troll here. Or troll-adjacent.
We old-school trolls are fine with being ignored. We used to feed on ourselves when ignored. Does the job well enough and hell, sometimes it’s funnier to see ourselves gag.
Now, Stormfront and their ilk, you can’t ignore them forever. They won’t want to feed on themselves, because their primary diet is your outrage and, if left to fester, your fucking life.
We’ve got Chozen ripping off the mask amd harassing regulars and Mike already.
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Chozen might have posed some semblance of a threat if he hadn’t thrown his weight behind a pasty has-been ex-president who has a burning loathing for Chozen’s ethnicity and sexuality. And to be fair, we’ve been having plenty of practice dealing with John Smith’s threats of lawsuits and rapes for years. Chozen is, frankly, not a threat. No matter how much he wants to imagine his prowess in the bedroom.
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Erm, dude… Someone whose skin resembles the flesh (and sometimes peel) of a tangerine hardly meets the definition of ‘pasty’! 😉
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^This.
“It’s 55 incredibly thorough pages”
I don’t know why they bother though. It’s not like the six conservative justices are going to read them. Thomas declared last week that stare decisis just means you’re out of arguments. Black letter law is ignored. They aren’t even bothering with fig leaves any more. They are letting their freak flag fly proudly.
Any lawyer petitioning your SC for anything that Alito and co don’t like should just scrawl “Fuck you” on a piece of toilet paper, because their filings will end up in the same place anyway.
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Even if it doesn’t change the outcome it’s still worthwhile to make the effort as it presents a very public reminder that the court is either ignoring anything that doesn’t match the outcome they’ve already decided on, are too lazy to read a few dozen pages or are so incompetent that they don’t even know the field they are in charge of making rulings on.
It’s one thing for someone to step on a rake and take a wooden pole to the face, another for them to do so after another person points out the rake and what will happen should they step on it. One of those could conceivably be chalked up as an accident, the other is plainly deliberate.
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Which would help if the court was subject in any way to the weight of public opinion and scrutiny.
Alito just proved they aren’t, and they give no fucks whatsoever what anyone thinks of them.
You have a lawless, boundary free court stacked with people who will keep behaving thus way for at least the next twenty to thirty years.
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Well, justice according to the weight of public opinion is lynch justice. It is the job of the judges (and justices) to implement the law as codified by the elected lawmakers. They are not supposed to bow to the more shortlived forms of public opinion not having made it into legal code.
Now the problem we are facing is that the law is subject to the Constitution and its Amendments, and the U.S. political system is partisan and divided to a degree where amending supermajorities are not a thing anymore for anything of lasting relevance. That means that the amended Constitution ossifies and no longer applies to the modern world, and the justices applying that ossified Constitution to a changed world in essence become lawmakers themselves by choosing the way to map old laws to modern circumstances.
And that’s just where the problem starts.
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“justice according to the weight of public opinion is lynch justice”
Which is why there are no elected justice department officials, judges, prosecutors, or law enforcement officers in America whatsoever.
Oh wait….
Re: Re: Re:3 true at federal level
yes at the federal level, all DOJ, judges, etc are appointed and not via election.
states vary. some are appointed, some election, and some hybrid. that’s the great thing about having independent states, they can choose how they want to run their state government. people in california probably don’t want their state to be run like texas and vice versa.
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Elected officials in the justice/enforcement system is a surefire path to corruption, as has been demonstrated many times in your history.
But lifetime appointments also lead to corruption unless the appointment process is taken out of the hands of politicians.
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Therein lies another problem: Several members of the Supreme Court seem to believe the Constitution should be interpreted not according to modern law and modern standards of culture and society, but according only to the beliefs and the writings of men who’ve been dead for centuries (as interpreted by conservatives who want to dispel the image of the Founding Fathers as slave-owning racists). Tradition is peer pressure from dead people, and there’s no greater conservative tradition that acting as if the Constitution should’ve stopped with the 10th Amendment…if not sooner.
Re: Re: Re: '... who? Oh, that horrible and monstrous person.'
If the court is that broken and corrupt, and at this point it’s certainly starting to look like it, then public pressure like that might do squat for the court but it could be used in other ways.
I’ve heard many a whining about expanding the court by the same people who stacked it in their favor, having it openly ripping off the mask of neutrality and going straight for partisan politics certainly seems like a good justification to push to turn that into a self-fulfilling prophecy.
Hell, even if all the constant calling out does it ensure that any time the justice’s names are brought up it’s seen in a negative light that would still be worthwhile; they want to screw over millions then they should get to enjoy a public reputation to match.
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Tech companies brought this on....
Tech companies should have stayed out of politics. When they started censorship over politics, people’s political views, and political rhetoric they crossed a line. Dems are freaking out because Musk may buy Twitter and turn the tables. Plus reveal all the deep, dark secrets of the Twitter algorithm. Now, democrats are scrambling in congress to pass the Ministry of Information to regulate Musk if he gets control of Twitter. Read that bill, it’s scary. 1985 is about to be non-fiction.
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[Proof required. Please provide]
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something something SHADOW BANS!!!
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Source: meth, Fox News, or other potent hallucinogens to see such no-link-to-anything-in-the-real-world fantasies as “censorship over politics.”
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Which political views are being censored by “Big Tech”? Be infuriatingly fucking specific.
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1985 is about to be non-fiction.
If you’re going to tell us the sky is falling, make sure you get it right, chicken little.
The novel you’re looking for is 1984
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Maybe they’re talking about the Bowling for Soup song?
Re: Yeah, maybe try that dogwhistle elsewhere...
When they started censorship over politics, people’s political views, and political rhetoric they crossed a line.
Conservative: I have been censored for my conservative views
Me: Holy shit! You were censored for wanting lower taxes?
Con: LOL no…no not those views
Me: So…deregulation?
Con: Haha no not those views either
Me: Which views, exactly?
Con: Oh, you know the ones
(All credit to Twitter user @ndrew_lawrence.)
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Sure, lemme get HAL9000 and Skynet to-
Oh dear, looks like those two AIs don’t exist. And I don’t trust the Youtube algorithm to do any sort of moderation.
Guess we’ll have to use humans and their innate, granted by evolution bias then.
Yeah No
No, this is irrelevant.
FB et al are not publishers, they are platforms. They do not own content, they merely provide a means to disseminate it.
The protections of the 1st Amendment do not apply ; they are a third party and are not protected.
While this is true, states are not subject to the limits imposed by torts, they may make decisions regardless of thier financial impact without consequence.
But they were referring to normal financial decsions ; equity decsions like injunctions do not need to meet that test, merely that they have not been proven.
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Oh, but it is. In the original context of Halleck, the court referred to a public access television station. But the logic of Halleck could easily be applied to social media networks. In both contexts, the platform being open to the public doesn’t, on its own, turn the platform into a true public forum. The owners of those platforms have a right—protected by the First Amendment, no less!—to decide what speech (and what persons) they will and will not host on those platforms. In the case of social media services, they have 47 U.S.C. § 230 to protect them from liability for third-party speech that they had no part in helping to craft or publish.
So yes, Halleck is relevant. Any argument to the contrary should be better than “it isn’t because I said it isn’t”.
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In both contexts, the platform being open to the public doesn’t, on its own, turn the platform into a true public forum.
This is similar to how both the BBC and Channel 4 are owned by the UK Government and funded by the taxpayer, but they retain editorial control over what they broadcast independent of all other factors subject to a very few exceptions (Queen’s Speech, etc.).
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What you think what they are or not isn’t in the least relevant, because the law doesn’t make that distinction at all. What matters is who is speaking and who is carrying the speech. A social media service can carry speech of others while at the same time carry their own speech.
Using the word platform in this context just denotes it’s a place where you can stand and speak at the owners discretion. Even the owner can use his own platform to speak. The word platform isn’t even mentioned in any law (well, until HB20 that is), it’s mentioned in case law because it was used in legal briefs but it’s just another word for interactive internet service, portal or website.
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The protections of the 1st Amendment do not apply; they are a third party and are not protected.
Bull-fucking-shit. Third party or not, Facebook’s right to control speech on its platform is totally protected by the First Amendment. To paraphrase Alec Baldwin, “And I want you to do your goddamn fucking research!”
further
Well, I’m not not sure.
Television uses publicly owned radio spectrum, it is subject to many restrictions and is not really “private”.
So the issue is really opposite ; the tv station was not liable reallly because it was public and the owners had to comply with standards imposed by the government , they weren’t independent really.
The issue with FB is whether they can impose speech restrictions based on their own editorial standards, rather then than the boadcasting standards applied – by the government – to the users of public radio spectrum. Was the immunity granted under not on the basis of the 1st Amendment but in fact because the TV broadcaster was limited by government directions and therefore not liable for their actions ?
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Fine. Let me quote the pertinent part of Halleck at you (thank you for making this easy, PhraseExpress):
And if that doesn’t make things clear, perhaps the 9th Circuit can help:
The point is this: Even if we accept the idea that Twitter, Facebook, and its social media brethren are open-to-the-public services, that fact alone doesn’t transform them into public forums in the sense that they must host any and all legally protected speech. Those services are legally allowed to decide what speech they will or will not host. If Twitter wants to not host transphobic speech and Truth Social wants to host transphobic speech, both platforms have the absolute right to make that decision.
I’ve given you two legal citations and a tl;dr of their meaning. From here on out, you’ll have to convince me you’re not being “confused” on purpose if you want to claim you’re still confused about this.
Courts will be courts
As far as I can tell:
There’s nothing actually wrong here. It may be different, strange, bizarre even. But well within their legal ability.
That a court opted to not immediately squash a law without the full process taking place is only as good or bad as your viewpoint on the law.
If the law is declared unconstitutional it will be cut down. Courts have the discretion to pause a law if they so desire to do so; but no mandate to. For whatever reason, this court chose not to block a law.
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Disavow Sec 230 to solve this issue
Any website that claims to be a publisher and to have editing rights over people’s comments needs to publicly exempt themselves from Section 230 protections.
It’s not fair to claim publisher’s freedoms without accepting publisher’s responsibilities and consequences.
You all howl about vile speech from one “wing” while the other “wing” is easily just as vile, if not more …
But if that’s really the problem, then put your big boy pants on, and let the lawsuits begin.
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When I upload a story to AO3, I’m the publisher of that story, not AO3. Similarly, when someone uploads a video to YouTube, they’re the publisher of that video, not YouTube. Get it yet, or are you going to carry on down the fastlane of stupid?
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Protecting those “editing rights” as you call them is a big part of the purpose of section 230.