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.
I keep reading that the Second Amendment only applies to weapons that were available, or at least conceived of, at the time it was written.
Does the same apply to the First Amendment? I do not think the founders ever conceived of pixels or computers.
If the Second Amendment does not give an absolute right to own a machine gun, can you explain why the First Amendment gives Twitter an absolute right to engage in viewpoint discrimination?
Finally, if you do take the absolutist view on this, can you explain why it does not apply equally well to any other common carrier? Should a phone company or cell phone company be allowed to cut off the NRA, the RNC, or the DNC because they disagree with their message?
This is mostly in the sense of mocking 'originalist' claims of anything.
When the word 'people' is used in the Constitution it's in the collective sense, the corporate body of citizenry. When the Constitution refers to individuals it uses the word 'persons', every time.
The Second Amendment is about supporting the idea that militias have a use in the defense of individual states and prevents the Federal government from banning them, but whoever individual states may want to ban from having a weapon is entirely up to them.
This would be the originalist argument that an originalist would focus on this and laugh off the idea of personal right to a weapon of any kind, but clearly conservatives have different priorities.
The idea that private ownership is 'safeguarding against tyrannical government' is so thoughtless and juvenile and peabrained most people simply ignore engaging it. Because, what is it? I should live in fear that some loud idiot might shoot me if I vote in a way he doesn't like? What is the word for that?
You seem to be forgetting the 14th Amendment.
I am not.
The word 'persons' means 'individuals' throughout the 14th Amendment.
1. If the Second Amendment was intended just to protect state militias then why didn't it just say that? "A well regulated Militia, being necessary to the security of a free State, the right of the states to maintain armed militias, shall not be infringed."
2. The Fourteenth Amendment incorporated the Bill of Rights against the states - this is why the First Amendment applies to Texas and not just to the federal government. What do you think the impact of incorporating the Second Amendment against the states was?
1. Because there were gun nuts back then as well. But I'm assuming there was some rationale to do with the arms of a militia being kept among the populace who might move about between the states and this wording prevents the Federal government from addressing it on the grounds of interstate commerce, but at some point I'll get back to you on this.
2. I admit you've lost me there. What does it mean?
This take is terrible. The First Amendment does not forbid "viewpoint regulation" but rather viewpoint DISCRIMINATION, so a law that forbids private actors from engaging in viewpoint discrimination cannot possibly be invalid on that ground. See, eg, the longstanding CA law which forbids private high schools and colleges from punishing students for speech which would be protected if uttered off campus.
As for the novelty of the issue, his point is that a stay can issue only if the social media companies are likely to prevail on the merits, and it is impossible to say that because the Court's precedents re private actors being forced to host the speech of others point in different directions. (I would note that that seems particularly unclear given that hosting the speech of others is their entire business model.).
None of this is to say that Alito is a good guy, nor that he is right on the merits of the the law (especially given that this was not a decision on the merits, and that Alito explicitly said that, given the aforementioned precedents, he is unsure whether the law is constitutional) But Kevin's take is based on a complete misreading of the opinion.
What are those tactical reasons for which Kagan voted with the minority here?