> Because this is “a court of review, not of first view,” Cutter v. Wil-
kinson, 544 U. S. 709, 718, n. 7, this Court cannot undertake the
needed inquiries. And because neither the Eleventh nor the Fifth Cir-
cuit performed the facial analysis in the way described above, their
decisions must be vacated and the cases remanded. Pp. 9–12.
Big nothing-burger here. As I see it, this means it could be years yet before a real Supreme Court decision comes down.
so why did the court even accept to hear the case? I thought there were other mechanisms to tell the case it had no standing before the court.
yes, it will probably take years to get a case with actual standing, but you know there are people itching to offend a state's law specifically to take bring it before SCOTUS. this one was just a bit premature.
As I read it, the decision wasn't just "we refuse to decide your case." It was "lower courts, you should not have ruled the way you did because you didn't consider all the relevant facts. Go do your homework then decide the case, not the other way around." The lower court rulings were vacated (struck down) because they didn't consider the full scope of the relevant law.
> so why did the court even accept to hear the case?
Because the Fifth District and the Ninth (?) District decided their respective cases in different ways. The Supreme Court often deals with cases where district courts are doing different things with the same area of law.
You are missing the key bit right after that where they basically scolded the 5th circuit for not having a basic understanding of free speech. They then proceeded to outline in detail why said analysis should almost certainly lead to the law failing to pass constitutional muster. This was not the Supreme Court throwing up their hands, this was the Supreme Court saying "This is basic stuff you shouldn't be getting wrong, try it again."
> It is necessary to say more about how the First Amendment relates to the laws’ content-moderation provisions, to ensure that the facial analysis proceeds on the right path in the courts below. That need
is especially stark for the Fifth Circuit, whose decision rested on a serious misunderstanding of First Amendment precedent and principle.
>The justices directed lower appeals courts to reconsider their decisions regarding these 2021 laws authorizing the states to regulate the content-moderation practices of large social media platforms. Tech industry trade groups challenged the two laws under the U.S. Constitution's First Amendment limits on the government's ability to restrict speech.
It's interesting how fast political ideology goes out the window. Here we have the Republicans fighting for increased government regulation of private businesses, while Democrats are arguing it's unconstitutional and violates "free speech".
Rather, in the US, politics is mostly based on keeping yourself elected, and political ideologies are pretty much lip service.
In reality, both sides all just serve at the pleasure of the elite.
What I love about Trump (despite never having a desire to votefor him) is he makes no attempt to hide that, often times going so far as to rub the political class' noses in it.
Not at all—more lucrative to say what people want to hear, raise a bunch of money, and lose, than it is to get in office and need to violate your campaign promises to appease the donors with steering influence.
Does he not? His speeches promise a "great America again!" to the conned masses, when the reality it's "Put me back into power so I can stay out of jail, and grift, for another 4 years at least.".
It would be interesting if one could put an actual "what I actually want" translator next to Trump like in this sketch: https://www.youtube.com/watch?v=HkAK9QRe4ds .. not that the conned masses would hear it and get a "Wow! He's a conman!" moment; they've projected onto him their hopes, dreams, and the idea that he will be the one to avenge their angers.
(BTW In Obama's post-presidential book he lamented about the same thing in 2008, that his voters were placing their hopes of all sorts of change on him, and that his campaign/supporters were inadvertendly creating cult-of-personality around him.)
I get it’s threading the needle and people en masse aren’t going to understand nuance, but I don’t think his point was that electing him would bring hope/change, I think it was a call for America to remember it can change.
I don’t think “I have faith we can change but don’t put your faith in me” has the same ring to it as a campaign slogan.
I guess this is now the established view of the Chevron decision, by being repeated thousands of times.
But the actual decision is just that when there is no clear rule in the law, the federal agency can no longer unilaterally decide what they want it to be.
When the federal agency hasn't been explicitly given a specific àla cart power by an increasingly disfunctional congress, courts are no longer expected to defer to the expertise of the federal agency when it seems reasonable to the court and seems to reasonably follow the powers congress has enumerated.
eta: I like to think of it in terms of "implied powers". So, the previous standard was that if Congress says the police are allowed to fine people for speeding, the courts should probably assume that the police are allowed to measure people's speed. Now congress is expected to explicitly state everything the police are allowed to do, e.g. congress has to say
The city is allowed to set speed limits.
Speed limits are a maximum speed you are allowed to go.
If you go faster than the speed limit, you are breaking the law.
Police are allowed to measure your speed.
Police are allowed to record your speed.
Police are allow to compare their measured recording of your speed to the speed limit, to determine whether or not you were speeding.
If police determine that you were speeding, they are allowed to fine you.
The police are allowed to fine you greater amounts if you break the speed limit by greater quantities
If the police fine you, they are allowed to take money from you
If the police fine you, and you don't pay it, you are breaking the law.
Previously if they said "The city can, at their discretion, manage speeds for the safety of all concerned, and use the police for enforcement", the rest was implied. Now it's not.
A federal agency was tasked with monitoring herring fishing. This is done by having an inspector on the boats to see that things are done right.
The agency was short on money, so they decided to have each boat pay $700/day for the inspector. Nothing in the law says they can do that. But also, nothing says they can't.
By the Chevron rule, since this isn't mentioned in the law, the agency can decide that they have the right to demand money.
I think it's hard to claim that, as experts in fishing regulation, the agency is best suited to decide if they should be allowed to take money from those it regulates or not.
At which point the courts could have left Chevron rule intact, and said "This is not a reasonable extension of your powers."
Chevron includes the phrase "when rules they make are reasonable." There was already plenty of room for courts to overturn things at their discretion, Chevron was just saying "If there's no obvious wrong on either side, defer to the agencies."
It seems courts just haven't done that, for some reason.
Anyway, the way the Supreme Court works is that cases make their way all the way up there not just to settle a fishing village quibble, but to decide if the underlying law is good or bad.
And so it becomes the occasion for conservative justices to do away with what they've thought was wrong for decades.
> And so it becomes the occasion for conservative justices to do away with what they've thought was wrong for decades.
I wonder for how many decades? Chevron is 40 years old. It was a 6-0 decision (two justices were sick and one recused herself due to conflicts of interest). It was overturning a pro-environment/anti-pollution ruling by the court of appeals below-written by RBG, before she joined the Supreme Court. At the time it was handed down, conservatives cheered it, while liberals and environmentalists condemned it. Obviously at some point the tables turned, conservatives soured on it, liberals decided they liked it after all. But I wonder when in those 40 years was the decisive tipping point, at which the majority of its critics went from being liberals to being conservatives.
> No one expected the Supreme Court decision in Chevron v. Natural Resources Defense Council would become a landmark of federal administrative law, least of all its author.
The humorous thing is that when I learned about the Chevron decision in law school, it was described as an attempt by the conservative judiciary to restrict regulatory oversight of businesses...
The difference between Chevron and Loper was that the Chevron decision actually took the real world into account. The decision noted that agencies simply needed a delegation of authority from Congress as Congress could not be expected to think of every little thing; the agencies existed to deal with that sort of minutiae.
However, Loper throws the real world (and actual history) out the window and requires that Congress explicitly authorize every little thing an agency does; a strict (i.e., "textual") reading of the Loper decision would mean that federal agencies could not even change the toilet paper in their offices without Congressional authorization. (Yes, this is a silly example but that's why textualism has only ever been embraced by extreme far-right justices; you need to be dissociated from the consequences of your actions in order to justify using textualism in a SCOTUS decision affecting hundreds of millions of people.)
> The humorous thing is that when I learned about the Chevron decision in law school, it was described as an attempt by the conservative judiciary to restrict regulatory oversight of businesses...
It’s ironic - in 1984, SCOTUS ruled against environmentalists and in favour of an oil company that wanted to pollute more. And at the time liberals and environmentalists condemned the decision, and conservatives praised it.
By 2024, the situation had reversed: conservatives now condemning the decision and calling for its reversal, liberals and environmentalists defending it and calling for it to be upheld
It is as if everyone just forgot what the original Chevron case was actually about
Furthermore, in Chevron they were overturning an appellate court ruling written by future justice Ruth Bader Ginsburg. It’s also ironic to hear liberals, many of whom praise RBG and have a high opinion of her, defending a conservative decision in which her ruling on environmental law was overturned
The Chevron decision allowed the Reagan EPA to not enforce regulation that was added by Congress to the Clean Air Act during the Carter administration.
I think it’s the establishment democrats that benefit most. Social media has been targeting left extremists alongside right wingers for a long time. The less exposure progressives get, the less red meat the establishment needs to throw to them.
I don't think state regulation of private business is an ideology in itself. It's not an all or nothing choice. You may want it for some aspects, not for others. Social democrats tend to use regulation to protect little folk, conservatives see it as a power tool.
That is not an accurate statement of the conservative view of government regulation.
I think a more accurate description of the difference would be to look at Jonathan Haidt's Moral Foundations theory, and in particular how the political left and the political right understand the idea of "fairness"[1]. I think it is our ideas about fairness that primarily drive the different views of regulation.
What is that difference? Well, as you said about social democrats, I think that people on the left view regulation primarily as a way to protect the little guy. Conservatives see it as a way to ensure that rewards are proportional to one's contribution and merit.
I agree I used the word conservatives too loosely, mainly to avoid the word "liberal". Indeed, there are ideological conservatives. However, they are few. Very few: it's a bit of an intellectual thing. In the political right, they are vastly outnumbered by other movements. Large factions among those are economic (European, not US) liberals, populists, and authoritarians. None of these have morals of contribution and merit.
It sounds like you think Republicans are in general against government regulation. However, there is a history of Republicans increasing government regulation on private businesses, most recently around private doctors providing health care for women. Republicans say they are pro small government, but their actions clearly prove otherwise.
Also, trying to strong arm the media is well within the Republican political ideology, especially under the guidance of their current presidential nominee.
> However, there is a history of Republicans increasing government regulation on private businesses, most recently around private doctors providing health care for women.
No one (except certain strains of anarchists) is against laws restricting "big" crimes like murder, theft, etc. Regardless of how you think about it, Republicans tend to think of abortion as murder, and so it is perfectly consistent to constrain that behavior while still being against government regulation broadly speaking.
Now, I'm not going to try and convince you that abortion is murder, I'm just saying your accusation of Republican hypocrisy is not convincing at all.
> Republicans say they are pro small government, but their actions clearly prove otherwise.
I would say that Republican politicians are much more comfortable with big government than the average voter that supports them.
So if they believe abortion is murder, they actually have to punish it like it really is.
So with years in prison for the woman, the supporting husband, the nurses and the MD.
To be clear, I do not think it is murder. But if I did, I would try to send to prison all participants. Not doing so seems philosophically weak, not quite hypocritical, but really self-serving or delusional 'look, those are murderers, a small fine and an administrative slap on the wrist seems enough'. I respect the opinion 'capital punishment/life sentence for any abortion, even in case of incest, rape, or unviable fœtus' way more, even if I find it unhinged. At least they are consistent.
> I respect the opinion 'capital punishment/life sentence for any abortion, even in case of incest, rape, or unviable fœtus' way more, even if I find it unhinged. At least they are consistent.
Why? In no other place in the law do we completely ignore any potentially mitigating factors and always seek the maximum penalty. There's nothing more "consistent" about being overly-simplistic in this one area of law when we aren't anywhere else.
Every crime has degrees. There are always factors that affect the severity of punishment. When I say that conservatives see abortion as murder, what I mean is that they see it as falling on the spectrum that includes murder and manslaughter (voluntary and involuntary) etc. All of those people you listed bear legal and moral culpability, but the degree of culpability is something that has to be weighed in light of the facts.
There's also always an element of practical politics: the vast majority of abortions have nothing to do with rape, incest, viability, or threat to the life of the mother. Even allowing for these exceptions (some of which I would argue are in fact morally consistent) would result in a dramatic decline in the number of unborn deaths.
Yes, and abortion means intent, which is an aggravating factor. Is killing an infant a mitigating factor? Killing someone with a genetic handicap? Maybe in case of 'threat to the life of the mother', you can argue for 'self-defense', but still, you would have to be judged. And that still leaves malformation, viability, rape and incest for which I don't find any moral mitigation tbf (and also leave the 'right of the father to see his kid' question up in the air).
> the vast majority of abortions have nothing to do with rape, incest, viability, or threat to the life of the mother.
I wouldn't be so sure about that, especially if you count as rape removing the condom when the lady asked not to. And if you only count abortion after first heartbeat, 8 weeks (I don't, to me the limit should be 'when it can live out of the uterus'), at least in France, it's even the vast, vast minority. The number in the US should be different (50% of abortion here are for people already with children, vs 30% in the US, 32% are for women aged 14-29, vs almost 50 in the US), but that's probably because you don't do sex ed in some part of your country. Which would be a non-coercing, liberty-preserving way to reduce abortions btw.
> Yes, and abortion means intent, which is an aggravating factor.
What is the "intent" exactly? If a young woman has been propagandized
by the surrounding culture into thinking the child growing inside her is nothing more than a clump of cells more akin to a tumor or parasite, the mental state she has when she has an abortion is much different then if she is aware of the full moral gravity of what she is doing.
> Is killing an infant a mitigating factor? Killing someone with a genetic handicap?
No, obviously.
> Maybe in case of 'threat to the life of the mother', you can argue for 'self-defense', but still, you would have to be judged.
Clear cases of self-defense rarely go to trial. It would be very rare that cases of medically necessary abortion would ever go before a judge.
> And that still leaves malformation, viability, rape and incest for which I don't find any moral mitigation tbf
Why wouldn't those be mitigating factors? There's no reason to think that (for example) a teen girl who was raped would be judged as harshly as a 30 year-old woman who intentionally had unprotected sex.
> I wouldn't be so sure about that...
That's a potentially interesting side debate, but I'll just say for now that as long as non-neglible number of children saved, a broad abortion ban that permits those limited exceptions would be a win.
> (I don't, to me the limit should be 'when it can live out of the uterus')
If you have a moral theory that justifies that position, please share. Because in my experience that's probably the most unprincipled position in the broader abortion debate.
> What is the "intent" exactly? If a young woman has been propagandized by the surrounding culture into thinking the child growing inside her is nothing more than a clump of cells more akin to a tumor or parasite, the mental state she has when she has an abortion is much different then if she is aware of the full moral gravity of what she is doing.
If they think it's murder, it's murder. Full stop. They can put everyone in psych wards if they want to, but it is still what i said at first, either really self-serving or delusional.
> It would be very rare that cases of medically necessary abortion would ever go before a judge.
In most cases, it does not pose a 100% clear cut threat to the life of the woman, so it isn't really clear self-defense. A threat to her reproductive capacity very often, sometimes a threat to her internal organs, leaving her unable to walk for long durations and forcing her to stay laying down for years (or for life when unable to survive[0] the necessary surgery), and sometime a high risk of death, but never 100%. All those would have to pass in front of a judge, don't you think?
> Why wouldn't those be mitigating factors?
"Moral mitigation". Murder is murder. I agree there would be legal one. And even in the case of murdering an abuser, you would have to go in prison, so if abortion is murder, you would to. So would the doctor, and doctor assistants. Wouldn't matter anyway, because how the doctor are supposed to know this is a rape? Judges would have to decide that, and if they decide it is not, the MD is liable for direct murder. The best for them is to avoid taking that risk altogether.
> If you have a moral theory that justifies that position, please share.
Yes, to me, letting die is not the same as murdering. First I don't think anybody really think that prior to at least heartbeat, the foetus can be considered alive (to me it's brainwaves that does it, but my mum took care of a person without any for years as a nurse, which formed my opinion, i don't begrudge people thinking it's heartbeat). But even if you do, i do not accept that anybody should be legally or even morally liable for letting anything die, even a full adult human, if trying to prevent this death would cost human suffering. Murder however, is morally reprehensible even in self-defense (Manslaughter in self-defense isn't though).
[0] Or pay if she's in the US and terminated and lost insurance due to her inability to work :)
> However, there is a history of Republicans increasing government regulation on private businesses
They also like regulating people's private lives. Who you can marry, who can have kids, who can use birth control, who can go to pornhub.com, who you can have sex with, what sex positions you're allowed to use, what books you can read, what you can teach in schools, what meat you can eat, etc.
If you want a really fun time, try to explain that Border control, immigration, and citizenship are all large government bodies enacting a government created construct wherein they control where different people are allowed to live and stay... that pisses most small government people off.
Free speech isn’t a stance owned by either party in particular.
Both parties broadly support the idea that the government shouldn’t sanction speech, but also the right to not associate with particular individuals depending on the sorts of things they say. There’s variation in the sorts of things that might make members of either party think you are a bad person for saying them, or for associating with people who say them.
As a conservative I definitely disagree Republicans pushing such legislation, though I sympathize with the need to respond to what appears to be a systematic attempt to control the discourse.
The right strategy is a two pronged approach:
The first (and most important) is to address government pressure, and to establish strong First Amendment protections against Congress and federal agencies from putting their thumb on the scale. This unfortunately failed in Murthy v. Missouri, but since it was rejected for reasons of standing rather than on statutory grounds, I think there is good reason to think this could succeed in the future (especially because there is prior precedent stating that the government cannot pressure private actors to do anything the government itself does not have the power to do directly).
The second approach is to focus on how Section 230 is enforced. Section 230 grants broad immunity to social media companies to engage in content moderation without liability (as it should) but I think we need to establish what is meant by "good faith" moderation. The best way I see to establish "good faith" is to set clear expectations about what content is allowed, and any moderation beyond that is done by users customizing their own experience. A pattern of moderation which is contrary to stated policy, especially when it is contrary to the interests of users, could be "bad faith" moderation that would exempt the platform from Section 230 protections, and possibly be considered an unfair business practice (and thus subject to civil litigation).
I think this would be in the best interests of all social media users of every political stripe. And none of this would prevent social media companies from systematically suppressing conservative content as "disinformation", but it would prevent them from doing so surreptitiously or under pressure from the government.
> The best way I see to establish "good faith" is to set clear expectations about what content is allowed, and any moderation beyond that is done by users customizing their own experience. A pattern of moderation which is contrary to stated policy, especially when it is contrary to the interests of users, could be "bad faith" moderation that would exempt the platform from Section 230 protections
This sounds a lot like we're kicking the can of worms down the road.
Now we have to define what content is allowed and someone has to decide if some action is contrary to that policy.
We're also giving the power to the government to rescind 230 and I don't doubt for a moment that an administration could find reason to do so particularly for media sites it doesn't appreciate...
Finally, we have to define if something is contrary to the interests of users, meaning we have to define the interests of users... holy cow.
I think less is more in this case. There are enough social media sites out there that you can dial in pretty exactly what you want to see, no matter your persuasion.
> This sounds a lot like we're kicking the can of worms down the road.
> Now we have to define what content is allowed and someone has to decide if some action is contrary to that policy.
I mean that the social media platform has to be explicit about what they allow. It doesn't matter what social media platform wants to allow (provided it is legal) so long as they tell their users what it is.
> Finally, we have to define if something is contrary to the interests of users, meaning we have to define the interests of users... holy cow.
IANAL, but it seems to me this kind of thing already comes up all the time in things like contract law, employement law, unfair business practices, etc.
> I think less is more in this case. There are enough social media sites out there that you can dial in pretty exactly what you want to see, no matter your persuasion.
I agree. What I am proposing requires no new legislation, and merely requires us to enforce existing legislation more or less as it is written.
I think it becomes too hard to define good faith moderation. Unless maybe you try to define how big a company is?
One of the reasons Elon Musk bought Twitter was because the Babylon Bee was moderated for misgendering a trans person. I could see an argument for why this might not be ok, but for me the same argument to me would fall apart on the /lgbt or /trans subreddits.
I don’t love the idea (nor do I think it’s feasible to distinguish) when you’re social media site becomes a “public square” and now your moderation decisions have to have some standard… regulated by the government? Which I think circles back to being a valid 1st amendment concern.
> One of the reasons Elon Musk bought Twitter was because the Babylon Bee was moderated for misgendering a trans person. I could see an argument for why this might not be ok, but for me the same argument to me would fall apart on the /lgbt or /trans subreddits.
That's sort of precisely my point. It's all about social media companies setting forth clear policies about what is acceptable on their platform, and ensuring that their moderation is consistent with that policy.
If Twitter wants to ban misgendering, let them. But they have to tell people. You can't claim to be the town square on the one hand and try to shape the discourse on the other.
I personally would prefer to use social platforms which establish boundaries on content. HN is an excellent example, and essentially the only "social media" I publish on for that very reason. But HN makes sure to tell people what is acceptable.
> The best way I see to establish "good faith" is to set clear expectations about what content is allowed
What I mean is that each social media platform needs to define what content is acceptable within its own terms. They don't necessarily need to be super detailed, but they should be explicit enough that people are able understand what is and is not allowed (or de-ranked, shadow-banned, etc.)
What I am trying to avoid here is people using social media under false pretenses. If a social media platform claims to be a neutral town square, but then behind the scenes tries to shape the discourse for their own political ends, that would be a false pretense.
> while Democrats are arguing it's unconstitutional and violates "free speech".
Protecting free speech has been the ideology of democrats for ages. The Free Speech Movement was fought by those on the left side of the political spectrum.
1. The Fedearl court system is divided into circuits [1]. These circuits can be (and are) organized differently to each other. They generally are divided into Districts (eg the Southern or Eastern District of NY) and may be further divided into divisions, usually with the idea that a person bringing a suit is relatively geographically close to the court. This unfortunately is the basis for "judge shopping" where you basically know what judge you'll get if you file in a certain area;
2. Florida is in the 11th Circuit. Texas is in the 5th Circuit;
3. The Circuits tend to reflect the politics of their constitutent states thanks to the Blue Slip system [2]. So to appoint a Texas judge, you need essentially a sponsor in a US senator from Texas. The politics will tend to align;
4. Circuits are divided into Distrct Courts and Appellate Courts (ignoring magistrate judges for now). A decision by a Federal district court is not binding to any other court. If a ruling is appealed it goes to that circuit's appellate court. Whatever that appellate court rules is binding to that circuit;
5. There are 9 Supreme Court ("SCOTUS") justices. SCOTUS has absolute discretion in deciding what cases to take. It requires 4 of the justices deciding to take any case. This can be (and has) done strategically, specifically to take or avoid taking a case when a particularly ideological block of the court feels they'll get a decision they do or do not want.
The court is, and always has been, political.
6. One way to force SCOTUS's hand is if different circuit appellate courts rule differently on the same fundamental issue. That's basically what happened here between the 5th and 11th Circuits.
Both Texas and Florida had passed differnet laws against censoring or "deplatforming" political candidates in the wake of, for example, former President Trump being banned from Twitter in the wake of Jan 6. The court said, essentially unanimously, that neither circuit had considered the First Amendment argument against these laws, which is actually pretty wild.
It's worth adding that the First Amendment (like the entire Constitution) is a restriction of government actions. If this wasn't clear enough, the first five words of the First Amendment are, quite literally:
> Congress shall make no law ...
It's worth adding that the 14th Amendment later extended restrictions on government actions to state and local governments.
Both the Texas and Florida laws should've failed immediately on First Amendment grounds. SCOTUS simply sent the cases back to the respective courts to consider this issue. I suspect we'll see these cases again as one or both of these courts will do mental contortions to decide that these laws have no First Amendment issue.
Wow, what a slam. Go back & analyze not just the specific case at hand, but generate a complete analysis of who these laws would apply to, in which circumstances, and the constitutionality of all. I feel like it's submitting your homework & being told you need to go do a thesis on the topic to get credit.
There's some very promising guidance too. Recognizing that there is a right to expression, that these platforms aren't magically stripped of their expression rights because they host huge volumes or because they don't themselves post kneecaps the rock out of some very strong absurd censorship complainers.
> States (and
their citizens) are of course right to want an expressive realm in which
the public has access to a wide range of views. But the way the First
Amendment achieves that goal is by preventing the government from
"tilt[ing] public debate in a preferred direction"
Including forcing companies to achieve that preferred balance for them.
Surprisingly promising start. I started in on the opinions but man these are long; interested to see how the various judges tackle this.
I don't actually know if there is a lot here to grapple with. The justices are just affirming a pretty obvious and core principle of the First Amendment.
> Texas has never been shy, and always been consistent, about its interest: The objective is to correct the mix of viewpoints that major platforms present. But a State may not interfere with private actors’ speech to advance its own vision of ideological balance. States (and their citizens) are of course right to want an expressive realm in which the public has access to a wide range of views. But the way the First Amendment achieves that goal is by preventing the government from “tilt[ing] public debate in a preferred direction,not by licensing the government to stop private actors from speaking as they wish and preferring some views over others. A State cannot prohibit speech to rebalance the speech market. That unadorned interest is not “unrelated to the suppression of free expression.” And Texas may not pursue it consistent with the First Amendment.
This is about as open and shut as it gets on the Supreme Court, and it's crazy that it even went that high.
I think Texas is at a disadvantage because they were very open about the political motivation for passing the law.
But I’m wondering: suppose they pass a new law permitting state residents to challenge in court “arbitrary and capricious” content moderation decisions. And to publicly justify it, they find some examples of state residents who claim to be victims of such decisions (I’m sure they could), but for posting things that aren’t obviously political. For example, we live on the other side of the planet, but I’m thinking of the time my wife was suspended from Facebook for joking that her cousin’s baby was “so cute she had to kidnap her”-her cousin read that as just a figure of speech not a violent threat against a child, Facebook disagreed.
So, a law to permit judicial review of content moderation decisions could be sold as something apolitical, and a law with such an apolitical framing might be more likely to be upheld by the Supreme Court. But once it has been accepted with that apolitical framing, then there is the potential for the judiciary to apply it in more explicitly political cases; and the precedent of applying it in apolitical cases may make courts more likely to accept it as constitutional if its application is later extended to more political cases too.
That seems like you've have to get past Section 230 still and this kind of work pushing state authority down to the individual as a kind of work around like they did with the abortion bounty laws before Roe was struck down is an insidious cancer if it's allowed to continue.
It should be but the current SC has an ideological bent that pushed them away from that simple solution to this can kicking maneuver. It would be far simpler to stick to the First Amendment where the government can only control what a person/company does, and just as importantly doesn't say, in specific circumstances.
> The justices directed lower appeals courts to reconsider their decisions regarding these 2021 laws authorizing the states to regulate the content-moderation practices of large social media platforms. Tech industry trade groups challenged the two laws under the U.S. Constitution's First Amendment limits on the government's ability to restrict speech.
The 1st Amendment rights of the corporate-personed platforms were prioritized above the 1st Amendment rights of the people posting on the platforms - implying that as the conveyor of the speech of the individual speakers, the platform's rights subsume the rights of the speakers. In other words, people are free to speak to the platform, and the platform is free to communicate that speech as it wishes.
The platform is also allowed to define any terms of service it wishes on the user, which can result in editing of speech by the platform, deletion of speech by the platform, of banning users themselves from the platform. And this is just in respect to speech: they can also force mediation, or the granting of rights to the platform to republish the material - exclusive or otherwise. This cannot even be restricted by state law. Could it be restricted by federal law?
But under section 230, the platform is indemnified in respect to repeating the unlawful or tortious speech of others that it handles (subject to respecting lawful requests for removal.) However, this still leaves the individuals who spoke liable for that unlawful or tortious speech, even after it was intermediated by the platform, who had constitutionally unlimited ability to restrict it.
I don't know that there are any limits to how the platform can control the user's speech that it carries, and I'm wondering if this decision means that placing any limits on any platform conveying speech is unconstitutional? While the restrictions on the user by the platform are arbitrary? And while the government can issue lawful orders to delete speech to the platform, and wealthy people can send lawful requests to the platform for speech to be deleted, and the platform then can make arbitrary decisions about what to delete which are now constitutionally protected and can't be appealed? Why wouldn't they just censor any speech that was challenged?
Telephone services were an exception to this, as a "common carrier," but as they cease to be actual telephone services running over wires and become VOIP systems running over wireless internet, wouldn't they have the same rights? And as "common carrier" isn't an actual status, but a internal classification by a regulatory agency, does that mean in light of Chevron being rolled back, any telephone company could simply challenge this status and instantly win, or insist that they are now a VOIP service and have the above rights anyway? Even before Chevron was rolled back, was this simply something that could be changed by regulators on a whim?
Does this effectively end all free speech for people who do not own presses, or telephone companies, in a way that has been declared to be absolute i.e. it would be a constitutional violation to establish any limits on platform editorial control or disconnection of services altogether for any platform's arbitrary reasons?
Also, since Chevron is gone, unless there has been some law passed by Congress specifically designating who common carriers are, could this give electric companies editorial control over how people use electricity, or water companies editorial control over how people use water?
I really don't understand any of this, and it is alarming. Instead of Congress or the courts establishing a reasoable framework about how to regulate speech on the internet, it has just handed individuals' 1st Amendment rights to the people who own the internet. We're only left with speaking with our mouths, in public, and our ability to do that is also severely limited (although through different means.)
> The 1st Amendment rights of the corporate-personed platforms were prioritized above the 1st Amendment rights of the people posting on the platforms - implying that as the conveyor of the speech of the individual speakers, the platform's rights subsume the rights of the speakers.
Well, yeah. As Billy Joel said, "Yes, you can speak your mind, but not on my time." I don't have to carry your speech if I don't agree with it.
> I really don't understand any of this, and it is alarming. Instead of Congress or the courts establishing a reasoable framework about how to regulate speech on the internet, it has just handed individuals' 1st Amendment rights to the people who own the internet.
I think, if you understood it better, you might be less alarmed. First, the Supreme Court didn't hand anything to anyone. It said that lower courts were incorrectly analyzing the First Amendment aspects of laws that regulate speech on the internet. It didn't say their conclusions were right, or even wrong. It said their analysis wasn't good enough.
Yes, Congress should create some guidance. In fact, I think they did - I think that's what Section 230 was. But two states decided they wanted a different set of rules, and wrote state laws. In a few more years, we're going to find out whether those state laws are constitutional. If they are (or even if they aren't), they're going to give some guidance as to what changes are possible to Section 230. Then, maybe, Congress will decide to pass something, and then we can have lawsuits about that.
TL;DR: For today, nothing has actually changed. Nothing.
> The 1st Amendment rights of the corporate-personed platforms were prioritized above the 1st Amendment rights of the people posting on the platforms - implying that as the conveyor of the speech of the individual speakers, the platform's rights subsume the rights of the speakers. In other words, people are free to speak to the platform, and the platform is free to communicate that speech as it wishes.
The last phrase is correct, but the first part doesn't really track. You (an individual or a company) still have all your First Amendment rights. You never had the right to post here or anywhere else you didn't own.
could this impact the exemption from liability for user posted content?
"Section 230(c)(1) of the Communications Decency Act protects social media platforms from liability for harmful content posted on their sites by users"
If the social media companies claim that their choice to show or not promote or censor user content is free speech, should that speech still be exempt as if they had no control over it?
>could this impact the exemption from liability for user posted content?
No, not in the slightest. Section 230 is completely orthogonal from the First Amendment. Section 230 deals with civil liability for speech that is NOT protected by the 1A and the practical effects of that as it intersects with the realities of the legal system. It has nothing to do with letting government put its thumb on the scale.
>If the social media companies claim that their choice to show or not promote or censor user content is free speech, should that speech still be exempt as if they had no control over it?
That's not what 230 is about, 230 is precisely about allowing imperfect control to be exercised. It is long, long established (rightly) that what someone allows or doesn't on their own private property and to be published under their own media is expressive, and thus protected by the 1A. If someone wishes to assert something falls outside of the 1A though (like defamation), litigating that can be expensive, as can liability if it was. There are two historic ways to handle that pre-CDA.
1. Pre-vetting (traditional publishing): With traditional media like a newspaper which published both 1st and 3rd party content (like letters to the editor), it was both necessary and practical to pre-vet everything published (and have contracts regarding liability, insurance etc). So they're responsible for what they publish, but can handle that. But that doesn't scale at all. Imagine if dang had to read every single post here on HN and evaluate whether it was legal before allowing it to go up, making edits if necessary.
2. Common carrier (classic example being carriers ala post office, UPS, or Fedex, electronic ones being ISPs): here an entity simply provides a service to anyone without any content discrimination at all beyond things like court order or provisions related to providing the service itself, like preventing anything that'd directly threaten, disrupt or damage the provider. So a mail carrier can prohibit hazardous substances requiring special handling they don't offer (or only offer with special services and costs for the equipment/training required), an ISP can deal with DoS, hack attempts and so on. But that means spam and stuff you don't want to see is passed along too.
Neither of these fit with what the people want from private forums of all flavors (from bbs to the newest social media) on the internet. It's desirable to have something that is fast and scales, where even an individual not well off person is able to have a blog and have a very low cost to run the underlying platform for that, and enable a comment section, or have a little phpBB forum or whatever else, and then let people discuss that. It's also desirable to allow there to be content discrimination (moderation, this forum is for talking about specific issues not spamming ads) that is imperfect and non-instant, without then making the hoster legally liable for anyone posting anything not protected by the 1A, and without requiring an enormously burdensome legal process for that. Section 230 was created directly as a result of Stratton Oakmont v. Prodigy, where a court found that because Prodigy had exercised editorial discretion, they were then liable for all content carried. This would destroy much of the internet. Want to have a forum devoted to cats and rockets, and so you delete posts about fish and trains? Now if someone posted something defamatory you didn't notice or realize was, you're liable for it.
So Section 230 was created to specifically to enable people to moderate content done by others, without becoming liable as a traditional publisher even if they missed things or were slow (an inevitability). They're still liable for their own speech. They're also still protected by the 1A for their own speech. At no point was it OK, with or without 230, for the government (federal or state) to put its thumb on the scale.
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[ 2.8 ms ] story [ 158 ms ] threadBig nothing-burger here. As I see it, this means it could be years yet before a real Supreme Court decision comes down.
yes, it will probably take years to get a case with actual standing, but you know there are people itching to offend a state's law specifically to take bring it before SCOTUS. this one was just a bit premature.
IANAL.
https://www.supremecourt.gov/opinions/23pdf/22-277_d18f.pdf
Because the Fifth District and the Ninth (?) District decided their respective cases in different ways. The Supreme Court often deals with cases where district courts are doing different things with the same area of law.
The districts are the actual courts at the lowest level; the circuits are the way they're organized into appeals courts.
The core principles of content moderation and editorial review being protected free speech are pretty strongly worded throughout the decision.
> It is necessary to say more about how the First Amendment relates to the laws’ content-moderation provisions, to ensure that the facial analysis proceeds on the right path in the courts below. That need is especially stark for the Fifth Circuit, whose decision rested on a serious misunderstanding of First Amendment precedent and principle.
Plus the 5th is based out of Texas and getting appointed there usually means getting alignment with the locals.
In reality, both sides all just serve at the pleasure of the elite.
What I love about Trump (despite never having a desire to votefor him) is he makes no attempt to hide that, often times going so far as to rub the political class' noses in it.
https://www.nbcnews.com/meet-the-press/meetthepressblog/s-ha...
Does he not? His speeches promise a "great America again!" to the conned masses, when the reality it's "Put me back into power so I can stay out of jail, and grift, for another 4 years at least.".
It would be interesting if one could put an actual "what I actually want" translator next to Trump like in this sketch: https://www.youtube.com/watch?v=HkAK9QRe4ds .. not that the conned masses would hear it and get a "Wow! He's a conman!" moment; they've projected onto him their hopes, dreams, and the idea that he will be the one to avenge their angers.
(BTW In Obama's post-presidential book he lamented about the same thing in 2008, that his voters were placing their hopes of all sorts of change on him, and that his campaign/supporters were inadvertendly creating cult-of-personality around him.)
I wonder why they did that. It's almost like he built his entire campaign on the promise that electing him would bring hope/change.
I don’t think “I have faith we can change but don’t put your faith in me” has the same ring to it as a campaign slogan.
While in the same breath removing regulatory oversight by revoking Chevron
But the actual decision is just that when there is no clear rule in the law, the federal agency can no longer unilaterally decide what they want it to be.
Quite literally those agencies can decide what is available for judges to review.
> [1] to define the scope of judicial review.
[1]: https://en.wikipedia.org/wiki/Administrative_Procedure_Act
eta: I like to think of it in terms of "implied powers". So, the previous standard was that if Congress says the police are allowed to fine people for speeding, the courts should probably assume that the police are allowed to measure people's speed. Now congress is expected to explicitly state everything the police are allowed to do, e.g. congress has to say
The city is allowed to set speed limits. Speed limits are a maximum speed you are allowed to go. If you go faster than the speed limit, you are breaking the law. Police are allowed to measure your speed. Police are allowed to record your speed. Police are allow to compare their measured recording of your speed to the speed limit, to determine whether or not you were speeding. If police determine that you were speeding, they are allowed to fine you. The police are allowed to fine you greater amounts if you break the speed limit by greater quantities If the police fine you, they are allowed to take money from you If the police fine you, and you don't pay it, you are breaking the law.
Previously if they said "The city can, at their discretion, manage speeds for the safety of all concerned, and use the police for enforcement", the rest was implied. Now it's not.
A federal agency was tasked with monitoring herring fishing. This is done by having an inspector on the boats to see that things are done right.
The agency was short on money, so they decided to have each boat pay $700/day for the inspector. Nothing in the law says they can do that. But also, nothing says they can't.
By the Chevron rule, since this isn't mentioned in the law, the agency can decide that they have the right to demand money.
I think it's hard to claim that, as experts in fishing regulation, the agency is best suited to decide if they should be allowed to take money from those it regulates or not.
Chevron includes the phrase "when rules they make are reasonable." There was already plenty of room for courts to overturn things at their discretion, Chevron was just saying "If there's no obvious wrong on either side, defer to the agencies."
It seems courts just haven't done that, for some reason.
Anyway, the way the Supreme Court works is that cases make their way all the way up there not just to settle a fishing village quibble, but to decide if the underlying law is good or bad.
And so it becomes the occasion for conservative justices to do away with what they've thought was wrong for decades.
I wonder for how many decades? Chevron is 40 years old. It was a 6-0 decision (two justices were sick and one recused herself due to conflicts of interest). It was overturning a pro-environment/anti-pollution ruling by the court of appeals below-written by RBG, before she joined the Supreme Court. At the time it was handed down, conservatives cheered it, while liberals and environmentalists condemned it. Obviously at some point the tables turned, conservatives soured on it, liberals decided they liked it after all. But I wonder when in those 40 years was the decisive tipping point, at which the majority of its critics went from being liberals to being conservatives.
> No one expected the Supreme Court decision in Chevron v. Natural Resources Defense Council would become a landmark of federal administrative law, least of all its author.
The difference between Chevron and Loper was that the Chevron decision actually took the real world into account. The decision noted that agencies simply needed a delegation of authority from Congress as Congress could not be expected to think of every little thing; the agencies existed to deal with that sort of minutiae.
However, Loper throws the real world (and actual history) out the window and requires that Congress explicitly authorize every little thing an agency does; a strict (i.e., "textual") reading of the Loper decision would mean that federal agencies could not even change the toilet paper in their offices without Congressional authorization. (Yes, this is a silly example but that's why textualism has only ever been embraced by extreme far-right justices; you need to be dissociated from the consequences of your actions in order to justify using textualism in a SCOTUS decision affecting hundreds of millions of people.)
It’s ironic - in 1984, SCOTUS ruled against environmentalists and in favour of an oil company that wanted to pollute more. And at the time liberals and environmentalists condemned the decision, and conservatives praised it.
By 2024, the situation had reversed: conservatives now condemning the decision and calling for its reversal, liberals and environmentalists defending it and calling for it to be upheld
It is as if everyone just forgot what the original Chevron case was actually about
Furthermore, in Chevron they were overturning an appellate court ruling written by future justice Ruth Bader Ginsburg. It’s also ironic to hear liberals, many of whom praise RBG and have a high opinion of her, defending a conservative decision in which her ruling on environmental law was overturned
I don't think state regulation of private business is an ideology in itself. It's not an all or nothing choice. You may want it for some aspects, not for others. Social democrats tend to use regulation to protect little folk, conservatives see it as a power tool.
That is not an accurate statement of the conservative view of government regulation.
I think a more accurate description of the difference would be to look at Jonathan Haidt's Moral Foundations theory, and in particular how the political left and the political right understand the idea of "fairness"[1]. I think it is our ideas about fairness that primarily drive the different views of regulation.
What is that difference? Well, as you said about social democrats, I think that people on the left view regulation primarily as a way to protect the little guy. Conservatives see it as a way to ensure that rewards are proportional to one's contribution and merit.
[1]https://moralfoundations.org/
Also, trying to strong arm the media is well within the Republican political ideology, especially under the guidance of their current presidential nominee.
No one (except certain strains of anarchists) is against laws restricting "big" crimes like murder, theft, etc. Regardless of how you think about it, Republicans tend to think of abortion as murder, and so it is perfectly consistent to constrain that behavior while still being against government regulation broadly speaking.
Now, I'm not going to try and convince you that abortion is murder, I'm just saying your accusation of Republican hypocrisy is not convincing at all.
> Republicans say they are pro small government, but their actions clearly prove otherwise.
I would say that Republican politicians are much more comfortable with big government than the average voter that supports them.
So with years in prison for the woman, the supporting husband, the nurses and the MD.
To be clear, I do not think it is murder. But if I did, I would try to send to prison all participants. Not doing so seems philosophically weak, not quite hypocritical, but really self-serving or delusional 'look, those are murderers, a small fine and an administrative slap on the wrist seems enough'. I respect the opinion 'capital punishment/life sentence for any abortion, even in case of incest, rape, or unviable fœtus' way more, even if I find it unhinged. At least they are consistent.
Why? In no other place in the law do we completely ignore any potentially mitigating factors and always seek the maximum penalty. There's nothing more "consistent" about being overly-simplistic in this one area of law when we aren't anywhere else.
Every crime has degrees. There are always factors that affect the severity of punishment. When I say that conservatives see abortion as murder, what I mean is that they see it as falling on the spectrum that includes murder and manslaughter (voluntary and involuntary) etc. All of those people you listed bear legal and moral culpability, but the degree of culpability is something that has to be weighed in light of the facts.
There's also always an element of practical politics: the vast majority of abortions have nothing to do with rape, incest, viability, or threat to the life of the mother. Even allowing for these exceptions (some of which I would argue are in fact morally consistent) would result in a dramatic decline in the number of unborn deaths.
> the vast majority of abortions have nothing to do with rape, incest, viability, or threat to the life of the mother.
I wouldn't be so sure about that, especially if you count as rape removing the condom when the lady asked not to. And if you only count abortion after first heartbeat, 8 weeks (I don't, to me the limit should be 'when it can live out of the uterus'), at least in France, it's even the vast, vast minority. The number in the US should be different (50% of abortion here are for people already with children, vs 30% in the US, 32% are for women aged 14-29, vs almost 50 in the US), but that's probably because you don't do sex ed in some part of your country. Which would be a non-coercing, liberty-preserving way to reduce abortions btw.
What is the "intent" exactly? If a young woman has been propagandized by the surrounding culture into thinking the child growing inside her is nothing more than a clump of cells more akin to a tumor or parasite, the mental state she has when she has an abortion is much different then if she is aware of the full moral gravity of what she is doing.
> Is killing an infant a mitigating factor? Killing someone with a genetic handicap?
No, obviously.
> Maybe in case of 'threat to the life of the mother', you can argue for 'self-defense', but still, you would have to be judged.
Clear cases of self-defense rarely go to trial. It would be very rare that cases of medically necessary abortion would ever go before a judge.
> And that still leaves malformation, viability, rape and incest for which I don't find any moral mitigation tbf
Why wouldn't those be mitigating factors? There's no reason to think that (for example) a teen girl who was raped would be judged as harshly as a 30 year-old woman who intentionally had unprotected sex.
> I wouldn't be so sure about that...
That's a potentially interesting side debate, but I'll just say for now that as long as non-neglible number of children saved, a broad abortion ban that permits those limited exceptions would be a win.
> (I don't, to me the limit should be 'when it can live out of the uterus')
If you have a moral theory that justifies that position, please share. Because in my experience that's probably the most unprincipled position in the broader abortion debate.
If they think it's murder, it's murder. Full stop. They can put everyone in psych wards if they want to, but it is still what i said at first, either really self-serving or delusional.
> It would be very rare that cases of medically necessary abortion would ever go before a judge.
In most cases, it does not pose a 100% clear cut threat to the life of the woman, so it isn't really clear self-defense. A threat to her reproductive capacity very often, sometimes a threat to her internal organs, leaving her unable to walk for long durations and forcing her to stay laying down for years (or for life when unable to survive[0] the necessary surgery), and sometime a high risk of death, but never 100%. All those would have to pass in front of a judge, don't you think?
> Why wouldn't those be mitigating factors?
"Moral mitigation". Murder is murder. I agree there would be legal one. And even in the case of murdering an abuser, you would have to go in prison, so if abortion is murder, you would to. So would the doctor, and doctor assistants. Wouldn't matter anyway, because how the doctor are supposed to know this is a rape? Judges would have to decide that, and if they decide it is not, the MD is liable for direct murder. The best for them is to avoid taking that risk altogether.
> If you have a moral theory that justifies that position, please share.
Yes, to me, letting die is not the same as murdering. First I don't think anybody really think that prior to at least heartbeat, the foetus can be considered alive (to me it's brainwaves that does it, but my mum took care of a person without any for years as a nurse, which formed my opinion, i don't begrudge people thinking it's heartbeat). But even if you do, i do not accept that anybody should be legally or even morally liable for letting anything die, even a full adult human, if trying to prevent this death would cost human suffering. Murder however, is morally reprehensible even in self-defense (Manslaughter in self-defense isn't though).
[0] Or pay if she's in the US and terminated and lost insurance due to her inability to work :)
They also like regulating people's private lives. Who you can marry, who can have kids, who can use birth control, who can go to pornhub.com, who you can have sex with, what sex positions you're allowed to use, what books you can read, what you can teach in schools, what meat you can eat, etc.
Nope, but I think most Republicans think that.
Personally, I think politics is more about money and power than adherence to any kind of ideology.
Both parties broadly support the idea that the government shouldn’t sanction speech, but also the right to not associate with particular individuals depending on the sorts of things they say. There’s variation in the sorts of things that might make members of either party think you are a bad person for saying them, or for associating with people who say them.
The right strategy is a two pronged approach:
The first (and most important) is to address government pressure, and to establish strong First Amendment protections against Congress and federal agencies from putting their thumb on the scale. This unfortunately failed in Murthy v. Missouri, but since it was rejected for reasons of standing rather than on statutory grounds, I think there is good reason to think this could succeed in the future (especially because there is prior precedent stating that the government cannot pressure private actors to do anything the government itself does not have the power to do directly).
The second approach is to focus on how Section 230 is enforced. Section 230 grants broad immunity to social media companies to engage in content moderation without liability (as it should) but I think we need to establish what is meant by "good faith" moderation. The best way I see to establish "good faith" is to set clear expectations about what content is allowed, and any moderation beyond that is done by users customizing their own experience. A pattern of moderation which is contrary to stated policy, especially when it is contrary to the interests of users, could be "bad faith" moderation that would exempt the platform from Section 230 protections, and possibly be considered an unfair business practice (and thus subject to civil litigation).
I think this would be in the best interests of all social media users of every political stripe. And none of this would prevent social media companies from systematically suppressing conservative content as "disinformation", but it would prevent them from doing so surreptitiously or under pressure from the government.
This sounds a lot like we're kicking the can of worms down the road.
Now we have to define what content is allowed and someone has to decide if some action is contrary to that policy.
We're also giving the power to the government to rescind 230 and I don't doubt for a moment that an administration could find reason to do so particularly for media sites it doesn't appreciate...
Finally, we have to define if something is contrary to the interests of users, meaning we have to define the interests of users... holy cow.
I think less is more in this case. There are enough social media sites out there that you can dial in pretty exactly what you want to see, no matter your persuasion.
> Now we have to define what content is allowed and someone has to decide if some action is contrary to that policy.
I mean that the social media platform has to be explicit about what they allow. It doesn't matter what social media platform wants to allow (provided it is legal) so long as they tell their users what it is.
> Finally, we have to define if something is contrary to the interests of users, meaning we have to define the interests of users... holy cow.
IANAL, but it seems to me this kind of thing already comes up all the time in things like contract law, employement law, unfair business practices, etc.
> I think less is more in this case. There are enough social media sites out there that you can dial in pretty exactly what you want to see, no matter your persuasion.
I agree. What I am proposing requires no new legislation, and merely requires us to enforce existing legislation more or less as it is written.
One of the reasons Elon Musk bought Twitter was because the Babylon Bee was moderated for misgendering a trans person. I could see an argument for why this might not be ok, but for me the same argument to me would fall apart on the /lgbt or /trans subreddits.
I don’t love the idea (nor do I think it’s feasible to distinguish) when you’re social media site becomes a “public square” and now your moderation decisions have to have some standard… regulated by the government? Which I think circles back to being a valid 1st amendment concern.
That's sort of precisely my point. It's all about social media companies setting forth clear policies about what is acceptable on their platform, and ensuring that their moderation is consistent with that policy.
If Twitter wants to ban misgendering, let them. But they have to tell people. You can't claim to be the town square on the one hand and try to shape the discourse on the other.
I personally would prefer to use social platforms which establish boundaries on content. HN is an excellent example, and essentially the only "social media" I publish on for that very reason. But HN makes sure to tell people what is acceptable.
> The best way I see to establish "good faith" is to set clear expectations about what content is allowed
What I mean is that each social media platform needs to define what content is acceptable within its own terms. They don't necessarily need to be super detailed, but they should be explicit enough that people are able understand what is and is not allowed (or de-ranked, shadow-banned, etc.)
What I am trying to avoid here is people using social media under false pretenses. If a social media platform claims to be a neutral town square, but then behind the scenes tries to shape the discourse for their own political ends, that would be a false pretense.
Protecting free speech has been the ideology of democrats for ages. The Free Speech Movement was fought by those on the left side of the political spectrum.
https://www.salon.com/2024/05/02/jewish-groups-decry-passage...
1. The Fedearl court system is divided into circuits [1]. These circuits can be (and are) organized differently to each other. They generally are divided into Districts (eg the Southern or Eastern District of NY) and may be further divided into divisions, usually with the idea that a person bringing a suit is relatively geographically close to the court. This unfortunately is the basis for "judge shopping" where you basically know what judge you'll get if you file in a certain area;
2. Florida is in the 11th Circuit. Texas is in the 5th Circuit;
3. The Circuits tend to reflect the politics of their constitutent states thanks to the Blue Slip system [2]. So to appoint a Texas judge, you need essentially a sponsor in a US senator from Texas. The politics will tend to align;
4. Circuits are divided into Distrct Courts and Appellate Courts (ignoring magistrate judges for now). A decision by a Federal district court is not binding to any other court. If a ruling is appealed it goes to that circuit's appellate court. Whatever that appellate court rules is binding to that circuit;
5. There are 9 Supreme Court ("SCOTUS") justices. SCOTUS has absolute discretion in deciding what cases to take. It requires 4 of the justices deciding to take any case. This can be (and has) done strategically, specifically to take or avoid taking a case when a particularly ideological block of the court feels they'll get a decision they do or do not want.
The court is, and always has been, political.
6. One way to force SCOTUS's hand is if different circuit appellate courts rule differently on the same fundamental issue. That's basically what happened here between the 5th and 11th Circuits.
Both Texas and Florida had passed differnet laws against censoring or "deplatforming" political candidates in the wake of, for example, former President Trump being banned from Twitter in the wake of Jan 6. The court said, essentially unanimously, that neither circuit had considered the First Amendment argument against these laws, which is actually pretty wild.
It's worth adding that the First Amendment (like the entire Constitution) is a restriction of government actions. If this wasn't clear enough, the first five words of the First Amendment are, quite literally:
> Congress shall make no law ...
It's worth adding that the 14th Amendment later extended restrictions on government actions to state and local governments.
Both the Texas and Florida laws should've failed immediately on First Amendment grounds. SCOTUS simply sent the cases back to the respective courts to consider this issue. I suspect we'll see these cases again as one or both of these courts will do mental contortions to decide that these laws have no First Amendment issue.
[1]: https://www.uscourts.gov/sites/default/files/u.s._federal_co...
[2]: https://en.wikipedia.org/wiki/Blue_slip_(U.S._Senate)
There's some very promising guidance too. Recognizing that there is a right to expression, that these platforms aren't magically stripped of their expression rights because they host huge volumes or because they don't themselves post kneecaps the rock out of some very strong absurd censorship complainers.
> States (and their citizens) are of course right to want an expressive realm in which the public has access to a wide range of views. But the way the First Amendment achieves that goal is by preventing the government from "tilt[ing] public debate in a preferred direction"
Including forcing companies to achieve that preferred balance for them.
Surprisingly promising start. I started in on the opinions but man these are long; interested to see how the various judges tackle this.
This is about as open and shut as it gets on the Supreme Court, and it's crazy that it even went that high.
But I’m wondering: suppose they pass a new law permitting state residents to challenge in court “arbitrary and capricious” content moderation decisions. And to publicly justify it, they find some examples of state residents who claim to be victims of such decisions (I’m sure they could), but for posting things that aren’t obviously political. For example, we live on the other side of the planet, but I’m thinking of the time my wife was suspended from Facebook for joking that her cousin’s baby was “so cute she had to kidnap her”-her cousin read that as just a figure of speech not a violent threat against a child, Facebook disagreed.
So, a law to permit judicial review of content moderation decisions could be sold as something apolitical, and a law with such an apolitical framing might be more likely to be upheld by the Supreme Court. But once it has been accepted with that apolitical framing, then there is the potential for the judiciary to apply it in more explicitly political cases; and the precedent of applying it in apolitical cases may make courts more likely to accept it as constitutional if its application is later extended to more political cases too.
The 1st Amendment rights of the corporate-personed platforms were prioritized above the 1st Amendment rights of the people posting on the platforms - implying that as the conveyor of the speech of the individual speakers, the platform's rights subsume the rights of the speakers. In other words, people are free to speak to the platform, and the platform is free to communicate that speech as it wishes.
The platform is also allowed to define any terms of service it wishes on the user, which can result in editing of speech by the platform, deletion of speech by the platform, of banning users themselves from the platform. And this is just in respect to speech: they can also force mediation, or the granting of rights to the platform to republish the material - exclusive or otherwise. This cannot even be restricted by state law. Could it be restricted by federal law?
But under section 230, the platform is indemnified in respect to repeating the unlawful or tortious speech of others that it handles (subject to respecting lawful requests for removal.) However, this still leaves the individuals who spoke liable for that unlawful or tortious speech, even after it was intermediated by the platform, who had constitutionally unlimited ability to restrict it.
I don't know that there are any limits to how the platform can control the user's speech that it carries, and I'm wondering if this decision means that placing any limits on any platform conveying speech is unconstitutional? While the restrictions on the user by the platform are arbitrary? And while the government can issue lawful orders to delete speech to the platform, and wealthy people can send lawful requests to the platform for speech to be deleted, and the platform then can make arbitrary decisions about what to delete which are now constitutionally protected and can't be appealed? Why wouldn't they just censor any speech that was challenged?
Telephone services were an exception to this, as a "common carrier," but as they cease to be actual telephone services running over wires and become VOIP systems running over wireless internet, wouldn't they have the same rights? And as "common carrier" isn't an actual status, but a internal classification by a regulatory agency, does that mean in light of Chevron being rolled back, any telephone company could simply challenge this status and instantly win, or insist that they are now a VOIP service and have the above rights anyway? Even before Chevron was rolled back, was this simply something that could be changed by regulators on a whim?
Does this effectively end all free speech for people who do not own presses, or telephone companies, in a way that has been declared to be absolute i.e. it would be a constitutional violation to establish any limits on platform editorial control or disconnection of services altogether for any platform's arbitrary reasons?
Also, since Chevron is gone, unless there has been some law passed by Congress specifically designating who common carriers are, could this give electric companies editorial control over how people use electricity, or water companies editorial control over how people use water?
I really don't understand any of this, and it is alarming. Instead of Congress or the courts establishing a reasoable framework about how to regulate speech on the internet, it has just handed individuals' 1st Amendment rights to the people who own the internet. We're only left with speaking with our mouths, in public, and our ability to do that is also severely limited (although through different means.)
Scary times.
Well, yeah. As Billy Joel said, "Yes, you can speak your mind, but not on my time." I don't have to carry your speech if I don't agree with it.
> I really don't understand any of this, and it is alarming. Instead of Congress or the courts establishing a reasoable framework about how to regulate speech on the internet, it has just handed individuals' 1st Amendment rights to the people who own the internet.
I think, if you understood it better, you might be less alarmed. First, the Supreme Court didn't hand anything to anyone. It said that lower courts were incorrectly analyzing the First Amendment aspects of laws that regulate speech on the internet. It didn't say their conclusions were right, or even wrong. It said their analysis wasn't good enough.
Yes, Congress should create some guidance. In fact, I think they did - I think that's what Section 230 was. But two states decided they wanted a different set of rules, and wrote state laws. In a few more years, we're going to find out whether those state laws are constitutional. If they are (or even if they aren't), they're going to give some guidance as to what changes are possible to Section 230. Then, maybe, Congress will decide to pass something, and then we can have lawsuits about that.
TL;DR: For today, nothing has actually changed. Nothing.
The last phrase is correct, but the first part doesn't really track. You (an individual or a company) still have all your First Amendment rights. You never had the right to post here or anywhere else you didn't own.
"Section 230(c)(1) of the Communications Decency Act protects social media platforms from liability for harmful content posted on their sites by users"
If the social media companies claim that their choice to show or not promote or censor user content is free speech, should that speech still be exempt as if they had no control over it?
No, not in the slightest. Section 230 is completely orthogonal from the First Amendment. Section 230 deals with civil liability for speech that is NOT protected by the 1A and the practical effects of that as it intersects with the realities of the legal system. It has nothing to do with letting government put its thumb on the scale.
>If the social media companies claim that their choice to show or not promote or censor user content is free speech, should that speech still be exempt as if they had no control over it?
That's not what 230 is about, 230 is precisely about allowing imperfect control to be exercised. It is long, long established (rightly) that what someone allows or doesn't on their own private property and to be published under their own media is expressive, and thus protected by the 1A. If someone wishes to assert something falls outside of the 1A though (like defamation), litigating that can be expensive, as can liability if it was. There are two historic ways to handle that pre-CDA.
1. Pre-vetting (traditional publishing): With traditional media like a newspaper which published both 1st and 3rd party content (like letters to the editor), it was both necessary and practical to pre-vet everything published (and have contracts regarding liability, insurance etc). So they're responsible for what they publish, but can handle that. But that doesn't scale at all. Imagine if dang had to read every single post here on HN and evaluate whether it was legal before allowing it to go up, making edits if necessary.
2. Common carrier (classic example being carriers ala post office, UPS, or Fedex, electronic ones being ISPs): here an entity simply provides a service to anyone without any content discrimination at all beyond things like court order or provisions related to providing the service itself, like preventing anything that'd directly threaten, disrupt or damage the provider. So a mail carrier can prohibit hazardous substances requiring special handling they don't offer (or only offer with special services and costs for the equipment/training required), an ISP can deal with DoS, hack attempts and so on. But that means spam and stuff you don't want to see is passed along too.
Neither of these fit with what the people want from private forums of all flavors (from bbs to the newest social media) on the internet. It's desirable to have something that is fast and scales, where even an individual not well off person is able to have a blog and have a very low cost to run the underlying platform for that, and enable a comment section, or have a little phpBB forum or whatever else, and then let people discuss that. It's also desirable to allow there to be content discrimination (moderation, this forum is for talking about specific issues not spamming ads) that is imperfect and non-instant, without then making the hoster legally liable for anyone posting anything not protected by the 1A, and without requiring an enormously burdensome legal process for that. Section 230 was created directly as a result of Stratton Oakmont v. Prodigy, where a court found that because Prodigy had exercised editorial discretion, they were then liable for all content carried. This would destroy much of the internet. Want to have a forum devoted to cats and rockets, and so you delete posts about fish and trains? Now if someone posted something defamatory you didn't notice or realize was, you're liable for it.
So Section 230 was created to specifically to enable people to moderate content done by others, without becoming liable as a traditional publisher even if they missed things or were slow (an inevitability). They're still liable for their own speech. They're also still protected by the 1A for their own speech. At no point was it OK, with or without 230, for the government (federal or state) to put its thumb on the scale.