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.
If Sam Alito weren't on the SCOTUS, he'd be on staff at Fox News. Clarence Thomas wouldn't be, of course, because he's Black.
He'd be the coach for a middle school debate team. Note, middle, not even high school. Maybe. I mean that is about the level of his intellect, at least what we see on display in his opinions.
"Novel law" seems to be the new catchall for "I know this isn't allowed, but I'm cool with it anyway."
Alito's got it really twisted around. In any other scenario, he'd be pushing for a corporation's right to determine what it wants to publish. Nobody's going to make NRO publish liberal takes to be fair.
If you wanted a social media company free from private control, the obvious answer would be to create a publicly-funded social media network. Kind of the way we've created PBS to encourage socially-edifying broadcasting that wouldn't meet the networks' requirements for profitability. None of this is actually novel at all.
Alito will certainly be OK with whatever corporations want to emit, in the form of, say, pollution. And his reasoning will be every bit as sound as this one.
amazing how a "novel" law addressing a change in technology by default should be allowed to override the plain text of the constitution when it comes to the first amendment, but when it comes to the second, that shit is inviolate. cause AR-15's are the most basic of our freedoms.
I was thinking the exact same thing. Social media is new so can't possibly be protected by the First Amendment? OK.
But, by that logic, how is that an AR 15 or even modern handguns aren't so vastly different from muskets that the 2nd Amendment doesn't apply to them?
originalism for thee, but not for me.
Well, how do we know that the founders didn't peer into the glorious future of firearms and understand in a deeply visceral way that muskets would be superceded. They'd just be a flash in the pan so to speak.
Funny how Alito et al get all squishy and relativistic about changing technology , things the writers of the constitution couldn't have foreseen, etc on this issue but can't possibly consider that, you know, firearm technology has advanced mightily since the musket.
I kinda get the impression that Alito wouldn't have the slightest idea of how to change the oil in his car but has no problem railing against those sneaky mechanics who keep overcharging. You know the type -- the (usually) guys who haven't so much as picked up a staple gun their entire life yet feel free to discourse at length on technologies, sciences, and mathematics far, far beyond their purview.
Ha, touché. Say what you will about the founders, not all were great people, but they were very practical. If in their time it was possible for a single person to walk up to a crowd and shoot 40 people they’d have said “uhhhh, no”
Really wouldn’t mind having a Brown Bess though. Hope we keep the right to have one of those
What, one shot every 30 seconds for a real expert, one shot every 2 minutes at best for the wanabee tough guy poser? I could live with that.
You'd have to toughen up your shoulder. Those things kick like a whole team of mules.
I actually read this a bit differently.
1. Social media companies are hugely influential, and play a unique role in the marketplace of ideas.
2. TX law is saying that a social media company CANNOT discriminate based on viewpoint, i.e. social media companies should be pseudo-state actors w/r/t speech.
3. the CDA exempts media companies from speech hosted on their platform -- so, by extension, disallowing social media companies from blocking speech they don't agree with is akin to their CDA status.
I don't like the TX law. And I do think forcing companies to host content they don't like is problematic. But, social media's role in our societal discourse is novel, and so I don't think it's quite as obvious that Alito and conservatives are just abandoning their prior views....
if you think about it, social media really isn't that different than traditional media. the same forces apply.
swing too far, left or right in restraining speech and they risk losing their audience and their customers (advertisers).
there is nothing stopping anyone from creating a new platform save money and talent, which has also been the case with media. exhibit A: pravda, aka truth (which almost certainly will fail because of the world-class ineptitude of donald john trump.)
The problem comes with... how do you define viewpoint? And how do you do it and allow every case to ignore case law?
Every troll will say it was their 'viewpoint' and not their participation in harassment schemes.
Of all the conservative Justices on the Court, Alito is by far the most hackish, Fox News Brain of them all.
Does Alito want to bring back the Fairness Doctrine and apply it to Fox News? Weren't radio and then TV novel methods of communication, using licensed public airways, that required special rules? The FCC actually did make this ruling in the Fairness Doctrine, but it was discarded in the Reagan administration.
That was my question too. The only difference I can think of is that Facebook/Twitter/etc. don't have licenses (I think?). But that would make the attempt to regulate them even worse since you can make an argument that the radio spectrum is a scarce public asset.
I think it's just more Free Speech for Me but not for Thee.
Like a great many other people, I suspect, I'm disappointed with Kagan's behaviour. Spare me this 'send a message' crap: The absolutely last thing we need any more of is Kremlinology of any kind, type, or amount.
"It is not at all obvious how our existing precedents, which predate the age of the semiautomatic rifle, should apply to large weapons manufacturers..."
Hell, predate rifled barrels and modern bullets
I read this court decision something like mparker above reads it, namely, as Alito being worried about powerful social media companies engaging in viewpoint discrimination by banning messages that they disfavor from appearing on their platforms.
I'm no fan whatsoever of Alito. At all. But I note that an attenuated version of this concern has arisen even in liberal discussions of free speech that pre-date social media. E.g. there is a famous 1993 article, "Freedom of Expression" by the left/liberal philosopher Joshua Cohen (one of John Rawls's most well-known students) which defends a set of "stringest protections" for free speech (which he calls "expressive liberties"). It includes this text:
"A system of stringent protections of expressive liberties must assure fair
opportunities for expression: that is, the value of expressive liberties must
not be determined by a citizen's economic or social position. Taking the
unequal command of resources as a fact, a system of stringent protections
must include measures aimed expressly at ensuring fair access to expres-
sive opportunities. Such measures might include: keeping traditional public forums (parks and streets) open and easily accessible; expanding the
conception of a public forum to include airports, train stations, privately
owned shopping centers, and other places of dense public interaction; [etc]..."
In short, though it seems quaint now given the demise of shopping malls as centers of social gathering, Cohen in 1993 was willing to entertain the idea of malls as de facto "public forums"; he speaks approving of a (hypothetical) state law that requires mall owners to (say) allow citizen groups to pass out leaflets inside mall properties (just as such groups would be free to do so in a more traditional public forum, such as a public park).
As regards social media, the issues are no doubt complex but it would be open for a liberal like Cohen to argue along similar lines that Facebook, Twitter, etc., are function as de facto public forums and as such, they should not be legally free to practice viewpoint discrimination any more than, say, a given City Council could ban groups X or Y from gathering in the city's public park to spread their message.
Personally I would not agree with that position. I think it is wrong, but it does not strike me as *egregiously and obviously* wrong-headed, as Kevin in this post seems to think.
The First Amendment applies strictly to government coercion and censorship. Full stop. Otherwise newspapers would have had to publish every "letter to the editor" they received, and every op-ed they got in the mail. So save the concern trolling.
But more to the point, Kevin asks: "This should be today's top story in every newspaper in the country. Why isn't it?"
Kevin, you've gone on record as saying the problem with American politics is Fox News. I think its fairly obvious that the "main stream press" is, for whatever reason, in the tank for Republicans/and-or working hard to present the modern Republican party as a reasonable, if slightly zany, political party. Even the "liberal" New York Times pulls this little stunt regularly.
+1
Of course the MSM is in the tank for the Republicans. How anyone can't have figured this out by now is beyond me.
Concern trolling can be done with far fewer words.
Not concern trolling, I promise you. I'm a liberal philosophy professor myself. Literally wrote a book against libertarianism.
I am sincerely making the point that the role of social media in our society does create novel legal complexities. Social media companies are private companies with immense public power to shape our national discourse. That power could be abused.
That makes me uneasy. My gut sense is that any attempt by government to regulate that power -- e.g. by enacting some version of the Fairness doctrine for social media, say -- would create counterproductive dangers of its own and would on balance be inadvisable for that reason. So I come down on the side of free speech. But there are shades of gray here, whereas Kevin seemed to see the issue as black and white.
I don't get it. Facebook, twitter et.al. are filled with RW blather. You can't avoid it. What these companies are doing, very timidly I might add, is removing outright lies and sedition. This isn't about "point of view." It's about muting unquestionably poisonous content. Of course, I'm not talking about Kevin's 1st Amendment arguments - that constitutional question to which I mostly agree. But this pearl-clutching about the modern town square is misguided both philosophically and constitutionally, IMHO.
so were newspapers at the time of the founding of the republic.
Yes, and the wire services (Agence France-Presse, Reuters, et al.) upon the invention of telegraphy. A few large companies feeding content around the world …
Ron Howard Voicover Narration: C. Diff... I mean, Dunc, was not a liberal philosophy professor.
Cool, now the courts can just declare any private company as a "de facto public entity" and force them to do whatever they want. Can't see any problem with this.
That's how public utilities work, yes.
Not that I support the Texas law.
That isn't how public utilities work. Public utilities get an exemption from antitrust laws in exchange for regulation which prevents them from charging monopoly prices.
There was a SC case on this (Pruneyard).
Alito being worried about powerful social media companies engaging in viewpoint discrimination
Of course that's what he's worried about. Alito is concerned that the right wing viewpoints he supports aren't getting disseminated as widely as he'd like, and that this dynamic will stymie the march of MAGA/Movement Conservatism.
Perhaps someone should inform this deeply corrupt hack that private entities are allowed to discriminate against views they find repugnant, because doing so is fundamental to their first amendment rights.
No country in the world does judicial appointments quite like the United States. Where else do individual high court judges so often become household names, or the subject of breaking news, or grist for the political mill?
The selection process for the U.S. Supreme Court appears unusually political compared to other democracies
Your Supreme Court was supposed to be the “apolitical” branch of the government. The framers of the Constitution intended the Court to be insulated from the chaotic process politics was at the time and still is .
They totally misjudged it … on this also.
Today is your Supreme Court manned by politicians dressed up in black robes impersonating judges
The U.S. Supreme Court justices hold more power than all of their foreign counterparts, partly because your Congress doesn’t function. It’s the justices who now decide the controversial issues of our time. Issues like abortion and same-sex marriage , gun control, campaign finance voting rights
That much power in the hands of single persons is an abomination in a democracy of the 21th century but that’s how your archaic Constitution is drafted
An inconvenient truth from a Swede
+1
Very true. And it gets worse and the state and local levels, where judges are actually elected in partisan elections. A deep-pockets individual, corporation, or industry can thus fund the appropriate campaigns and buy the "justice" they want.
The federal (and other levels of) government are overripe for change, and the mechanisms to create change are there ... but are held victim to minority rule. So there.
thank god for enlightened swedes like yourself. we benighted americans have no idea what's going on in our country! the supreme court is a problem? who knew?!!
btw, our archaic constitution doesn't stipulate the number of justices on the supreme court or, for that matter, the number of courts beyond the supreme. and when you come down to it EVERY issue is decided by "single persons" no matter how you slice it no matter what system you use.
"Swede".
The founding fathers had no idea of what the Supreme Court would turn out to be. It was the fourth chief justice John Marshall who established the power of the court as we now know it. The Supreme Court has been both the best (Brown v. Board of Education, Northern Securities Co v. US upholding trustbusting) and the worst (Dredd Scott, Plessy v. Ferguson). The lifelong appointments were meant to isolate the justices from politics, but has had the opposite effect of making the court a ready political tool of any would be tin pot dictator working with a morally corrupt Senate majority leader.
I have to chuckle when I try to figure out how to explain this case to my grandkids:
(1) Well, the Supreme Court blocked...
(2) the Texas court from blocking...
(3) the Texas legislature from blocking...
(4) the media companies from blocking...
(5) the users whose posts are perceived to be antithetical to the media company's something-or-other.
This reminds me of a one liner told me by a person more geeky even than myself:
Two wrongs don't make a right, but three lefts do.
Can we finally admit that schizophrenia of the court is a viable diagnosis or is it just political?
Its not the top story because most of the population is completely ignorant of what the First Amendment really means.
Moreover, this particular area of First Amendment law is even more inside baseball: if you read the District Court Opinion this is about (1) finding that social media companies engage in editorial decisions and (2) unlike what Alito said, there have been many cases where laws attempting to force publications to include material were violations of the FA.
I mean, the number of people who would even get that the FA covers not only
a law which says "you can't say X" but also a law that says "you must publish speech by someone who says Y" is so small as to fit on the head of the proverbial pin.
Its rather more disturbing that anyone dissented. As somebody pointed out, the old fairness doctrine was part of an entirely different body of law than this FA jurisprudence.
If anything its more remarkable that there is a conclusion that social media companies are "publishers" - it seems to be they have fought tooth and nail for the proposition that they do not publish, its the users who publish stuff.
I find that very, very hard to believe. If people don't get it it's because they want to not get it.
I was referring to the 42% of the population who are trumpers and think the First Amendment prevents them from being thrown off planes for being jackasses.
So was I.
Has a vanity press ever been successfully sued for, e.g. libel?
Their crackerjack legal staffs make that inconceivable . . .
By vanity press do you mean somebody like Gawker? Or some different type of outfit?
Back in the day when books only came in dead-tree format, there were companies that would print and bind books for a fee, paid by the author. They may have provided some marketing or promotion, again paid for by the author; perhaps offering basic proofreading but no editorial services beyond that. The author was therefore responsible for content, and for all financial risk - the vanity press made its money entirely through fees, not sales.
More recently, some academically-oriented professional journals have been characterized as vanity publications, charging authors fees that make up most of the journals’ income.
Different kind of vanity, but still works.
So if someone, we will call him Vlad, posts a video on a social media network, of a couple of blonds in a hotel in Russia, on top of a man, in a bed, there is nothing the media company can do to take it down?
Oh, I see.
If 50 years of precedent isn’t to Alito’s liking, it should get tossed on its ass unless it’s “deeply rooted” in history and tradition. Unless of course it is to his liking, in which case, deeply rooted traditions get the axe in favor of ‘hey, it’s novel.’ Fucking pretzel logic.
And please, let’s not pretend Alito is taking a long view and protecting the little people who get their rights trammeled by big business (which is laughably counter his entire purpose for existing on the court). He’s consuming Fox News talking points about how God awful it is for businesses to have policies that de-platform users who incite violence. That’s it. That’s all. Fox News levels of inconsistency, but now at the Supreme Court.
Kagan against because it was shadow docket iirc.
I'm still trying to figure out how this squares with Citizens United. Can it? idk
I think most people could use some background on this: https://bityl.co/CTwh and https://bityl.co/CTx6
We need to deal with the issue of whether or not a state can regulate speech by classifying entities as utilities/public good, and whether or not that's an unconstitutional (federal supremacy) run around of Congress' explicit law known as Section 230. Then, we need to review Texas' seemingly arbitrary assignment of qualifications for entities to be regulable.
And of course, we need to review the wisdom of allowing -- yet another -- shadow docket ruling, even if it adheres to a desired and expected outcome. In part, the full rigamarole actually ends up giving justices the opportunity to have a full hearing and review all the issues and concepts -- that clearly escaped the 5th Circuit Appeals -- to formally offer guidance.
I mean, sure, TX could be idiots and not see the writing on the wall that their law will fail when heard by SCOTUS, but eh, now we're counting on Paxton to be so dumb as to...oh wait, never mind.
So social media is a strange and new kind of speech that maybe the First Amendment doesn't completely apply to, or something?
Well, by extension, AR-15's are a new and unprecedented kind of weapon the founders couldn't have possibly have imagined being covered by the Second Amendment, right...?
We awakened in the Fourth Reich.
This should be today's top story in every newspaper in the country. Why isn't it?
Well it was only a decision not to lift an injunction pending a hearing of the merits, and Alito et al. were in the minority. I imagine a final judgement affirming the validity of the law would indeed be the top story in every newspaper, not only in America but also many other countries. The practical consequences of 50 state governments all regulating website content in conflicting ways don't bear thinking about.
As to the media's reaction (or lack thereof): I expect it reflects the reality that the Supreme Court is now regarded as a wholly-partisan institution, so it goes without saying that some of the Trump Republican judges will always side with Trump Republican litigants.
What used to be the Supreme Court is now basically a SuperSenate, free to enact whatever political agenda the majority wishes. Three of the current majority were appointed by a President who lost the popular vote. Two others were appointed by a President who lost the popular vote in his first run for President; given the opportunity by the Court to next run as an incumbent, he won a small majority, and filled two vacancies.
Alito and Texas are in some kind of cahoots, where TX sets up a law that claims it doesn't do what it obviously does, Alito goes "hmm, that's so novel our hands are tied here" and he's ready to let something plainly and facially unconstitutional take effect. So far TX is 1 for 2 with the whole court on this gambit-- minority here, but the "novel" vigilante enforcement mechanism on abortion got by their eagle-eyed scrutiny. What else has TX been cooking up, with Brer Sam looking over their shoulder?
Off-topic, but how did a guy so willing and eager to sh*t all over his predecessors pass the "judicial temperament" threshold?
I'd like to hear more about how you arrived at that conclusion.
It’s widely believed that Kagan opposed the ruling because she opposed this case being decided at all on the shadow docket. If you google her name and this ruling, you’ll find hundreds of pundits making that argument today.
I suppose Alito considers it irrelevant that the speech in question was banned not on its political bias but on its lack of truth.
The first amendment not only defends your right to say what you want, but also your right to not say something you don't want to say. If social networking companies are not allowed full first amendment rights, does that mean they are unique among all U.S. companies in not being "persons"?
But: MONEY IS SPEECH, and any restrictions on anyone donating (or spending) money to SPECIFICALLY promote a viewpoint, even a FACTUALLY FALSE viewpoint, in a political campaign IS protected by the First Amendment.
And would anyone like to place a bet on how these three will vote on the question of whether donald trump's rally statements on January 6 -- WHILE HE WAS PRESIDENT -- are protected speech, even though clearly incitement to a violent overthrow of the government?
You're under the delightfully naive delusion that those justices reason from fundamental legal principles and established precedent to reach a conclusion driven by the law.
They don't.
They decide on the outcome they want and then reason their way backward to a legaloid justification that at least puts a fig leaf on what they did.
And make no mistake, that is exactly why they were nominated and confirmed.
That's why I've been calling it the "Alice in Wonderland Court" ever since Scalia; the constitution means exactly what they want it to mean, nothing more, and nothing less.
Interesting. I've been calling it the "Humpty-Dumpty" court. In fact, I trot out the quote every so often when talk turns to this subject:
I believe this is from Through the Looking Glass, BTW.
Another great victory for conservatism,
https://www.rawstory.com/tulsa-shooting/
Why would anyone be surprised that the Court's conservatives would like to invalidate the 1st Amendment? They've already made the 15th Amendment a dead letter, rewritten the 2nd, and probably plan on partially invalidating the 13th with their anticipated ruling overturning Roe.
Am I crazy or is this beyond belief?
Not sure about the first part, but legal reasoning like this coming from the pen of Justice Alito isn't just believable, it's almost banal at this point. There's zero doubt Rupert and Donnie have him on speed dial.