Month: June 2022

Just another street scene in Paris.

Did I wake up on Mars today?

Last September Texas passed a law that allowed the government to enforce speech codes on private companies like Facebook and Twitter. These companies would be required to host speech they didn't want, a bit of state coercion so wildly unconstitutional it was a wonder the ghost of James Madison didn't strike the entire Texas lege dead on the spot.

In December a district court rightfully and quickly declared that the law violated the First Amendment.

Then, astonishingly, in May an appellate court ruled that the law could go into effect after all.

Then, today, the Supreme Court overruled the appellate court and blocked enforcement. But that's not the news. The news is that is that three justices would have allowed the law to take effect.¹ Here is what Sam Alito wrote:

The law before us is novel, as are applicants’ business models.... It is not at all obvious how our existing precedents, which predate the age of the internet, should apply to large social media companies, but Texas argues that its law is permissible under our case law. First, Texas contends that §7 does not require social media platforms to host any particular message but only to refrain from discrimination against a user’s speech on the basis of “viewpoint.”

....I have not formed a definitive view on the novel legal questions that arise from Texas’s decision to address the “changing social and economic” conditions it perceives....But precisely because of that, I am not comfortable intervening at this point in the proceedings

Am I crazy or is this beyond belief? Alito writes that Texas "only" wants to regulate speech based on "viewpoint," but viewpoint regulation is specifically and emphatically the very thing the First Amendment prohibits. And it's Texas that's bound by the First Amendment, not Facebook, regardless of the brand of sophistry Alito or any other judge engages in.

Neither Alito nor anyone else should have any trouble forming a "definitive view" of free speech rights just because they happen to come in the form of pixels instead of ink. But these days, all you need is a vague and paranoid belief that Republicans aren't getting their way and you can persuade not one, not two, but three Supreme Court justices to toss out the First Amendment like a piece of moldy bread.

This isn't the Texas legislature speaking. Or its governor. Or a lobbying group or a random judge somewhere. It's the Supreme Court of the United States. Their job is to enforce the Constitution by tossing out partisan pandering like this quickly and with extreme prejudice. It's appalling that this no longer happens.

This should be today's top story in every newspaper in the country. Why isn't it?

¹Four, actually, but Elena Kagan likely voted for tactical reasons, not because she supported the law in question.

America's latest independent prosecutor fiasco continues to roll along.¹ Trump fans are desperately hoping that US Attorney John Durham will prove that Russiagate was a Democratic ratfuck from the start, but Durham has now failed to prove even the trivial nano-charge that he finally brought against a guy nobody's heard of. That guy is Michael Sussmann, who was accused of the most inconsequential action possible: bringing information to the FBI but failing to tell them he was working with the Hillary Clinton campaign.

I mean, who cares, right? But it was all Durham had, and it gave him a vehicle for writing indictments that mysteriously implied greater crimes in the background. In the end, though, the jury unanimously voted against even the one trivial charge Durham thought he could prove. Sussmann is a free man today.

The era of the hyperpartisan special counsel really needs to come to a close. In particular, their endless investigations need to be limited not just in time but also in scope. They should be appointed with specific goals in mind, and not allowed to wander off into unrelated territory just because somebody who was related to someone did something vaguely unlawful.

In this case, Sussmann had nothing to do with starting the FBI's Russia investigation and, it turned out, nothing to do with keeping it going. Sussmann just passed along a tip, hoping it might go somewhere, which the FBI promptly looked into it and then killed. He should never have been in court, racking up God knows how much in attorney fees, in the first place. Durham is a disgrace.

¹Sorry, "special counsel" fiasco. Gotta get the lingo right.