7 ms·

Clarence Thomas is begging someone to sue over Section 230

23 points by iaw 6y ago

ashtonkem 6y ago
I believe this is exactly the kind of “Judicial Activism” that would get the right up in arms if it was the left doing it. In theory I like the idea of judicial conservatism; not attempting to change the law and merely interpreting it. But in practice that seems to be applied in ideologically narrow ways.
- oh_sigh 6y ago
  Judicial activism is the judicial branch believing they are the legislative branch and expanding/changing the scope of laws. A judge seeing what he believes is unconstitutional/unlawful behavior and saying he wishes he could try that case is not activism, it is merely a judge interested in his trade.
  - threatofrain 6y ago
    ashtonkem is echoing a common critique of textualism — that the personal worldview of a judge is a better predictor for rulings than a supposedly reliable strategy for reading text.
    - evgen 6y ago
      This. Scalia was widely advertised as a strict textualist, until of course it wasn't convenient (c.f. Heller) and then he was quite willing to both ignore precedent and slice and dice the constitution to fit his desired outcome.
      - Kephael 6y ago
        You're a liar arguing from a bad faith position if you think Heller was decided wrongly. Leftism is really a religion.
      - jki275 6y ago
        Scalia's opinion in Heller is a history lesson, and it's a very careful one. The decision is strictly in line with his judicial philosophy of strictly interpreting the document as it was written.
        evgen 6y ago
        Scalia's opinion is a lesson in judicial activism and a rather poorly constructed one that serves as an object lesson in how to cherry-pick facts that can be constructed to lead to your previously determined decision. It had nothing to do with the document as it was written, as we have a significant body of historical research into what clauses of the 2nd amendment mean when written as well as a long body of precedent about that amendment which was all ignored so that Scalia could legislate from the bench.
        jki275 6y ago
        There's literally zero precedent on the 2nd Amendment other than Miller, a badly written opinion on a case that was guaranteed to fail for political reasons and applied specifically to NFA short barreled shotguns. Scalia didn't write judicial activism. Nothing he ever wrote was judicial activism. "legislate from the bench?" Come on now. If you like the first amendment, the second exists to protect it. If you don't believe the second amendment exists (and that the opinion you've just stated), then the first doesn't either. The second amendment is the second most strict language in the entire Constitution. "Shall make no law", and "shall not be infringed". You should read Heller -- you clearly have not. He carefully documented all of your arguments and destroyed them. Heller is one of the very few decisions that's come from the bench in the last 60 years that actually strictly respected the exact words of the Constitution for exactly what they said.
        evgen 6y ago
        There was significant precedent on the 2A, I did read Heller, and happened to do my university thesis on US Constitutional and Legal History. Mine was a crim pro focus but still trod similar ground back in the early 90s when Miller and Lewis were the precedents to cite, and a significant part of the years of coursework and months of research was going to actual source on things like what was meant by certain terms and supporting material in the time they were written. I assure you that I know more about this subject than you or whatever NRA pamphlet you last read on the subject. Heller is an embarrassment to Scalia's carefully cultivated image and will eventually be viewed as his Dred Scott.
- hirundo 6y ago
  Thomas is making a careful argument that the opposite is true, that the judiciary has broadly interpreted the law for maximum indemnity, taking it well beyond its text. BTW, the many on "the right", particularly Randy Barnett, have long argued in favor of judicial activism in the service of his preferred philosophy, original public meaning. He doesn't fault the other side for activism, but for actively pursuing a philosophy he disagrees with, living constitutionalism. It all depends on exactly what you're applying "activism" and "restraint" to. Barnett would argue for restraint in reading Section 230 as creating more authority than its text supports, but activism in applying such restraint.
  - abernard1 6y ago
    > Thomas is making a careful argument that the opposite is true, that the judiciary has broadly interpreted the law for maximum indemnity, taking it well beyond its text. Indeed! And there's some real legerdemain going on by the author related to that "indemnity." He brings up traditional cultural ideas around an open and free internet, and he then argues that opponents of Section 230 are against the spirit of the internet. But this is only the case if you believe the spirit of the internet was 3rd party indemnity, and that's what made it grow. (A cynical position to hold in my opinion.) If you believe that the internet is what it is due to openness, then it's people like Twitter and Facebook that have got it all wrong. They're effectively saying "we don't want to be held responsible for content on our platform" (e.g. bear the costs of editorial oversight), and simultaneously "we also don't want to be held responsible for content we take off our platform" (done so voluntary with the same cost burdens they're fighting against). It's a weird type of Internet Provider Exceptionalism: "The Internet is great because the providers were free to do whatever they wanted."
  - deleted 6y ago
    [deleted]
- abvdasker 6y ago
  The Supreme Court has always been blatantly ideological. Legal doctrines like textualism or activism are just rationalizations for decisions motivated by a Justice's political ideology. Always have been. If the court were a strictly rational, non-ideological body, politicians wouldn't fight over appointments the way they do.
abernard1 6y ago
> Section 230 says that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider" So in other words, Twitter and Facebook censored content (and even references to the URL of that content) despite having no obligation to do so. And they censored content that not only they did not create, but was put forward by a traditional newspaper on their "series of tubes." As the content is not prohibited by law, how is that _not_ functioning in an editorial capacity? If Comcast or Cloudflare blocked this exact same content via ipfilters or URL rules, where would the Net "Neutrality" crowd be on this issue? Outside the legal arguments put forward, there is a huge moral hypocrisy here. Net Neutrality advocates have argued that content should not be allowed to be blocked via certain providers (ISPs), while endorsing censorship on others (CDNs, social communication platforms). In the case of Thomas, he's argued against Net Neutrality not on content grounds--but on technical arguments around resource utilization and distribution. Thomas' view is at least consistent as it preserves the idea of _not_ limiting speech, which is more than can be said for the Net "Neutrality" crowd.
- patagurbon 6y ago
  Internet providers are effectively a monopoly. There's at most 3 providers in an area for cable/fiber. They are utilities. Facebook and Twitter are not. You can still access the NY Post on their website. Twitter and Facebook absolutely have grounds to block content that contains PII or appear to be derived from a hack, especially when both are in effect.
  - abernard1 6y ago
    > Facebook and Twitter are not. Facebook and Twitter are also claiming they're not subject to the same rules as traditional broadcast outlets or newspapers. Broadcast media outlets are not monopolies either, and they can't wantonly censor election speech like this by law. If CBS was to decide that all their outlets were going to cover only one candidate's speeches, they would be electioneering, and be afoul of the law. CBS is not even as close to a monopoly as Facebook or Twitter is. We have a case here were two providers took it upon themselves to block references to a newspaper article, relating very directly to speech which would need equal access under any other medium.
sunstone 6y ago
So the guy who never talks goes soliciting the public for a piece of litigation that suits him. Theoretically I thought Supreme Court Justices were expected to be non-partisan in their judicial duties.
- iaw 6y ago
  He started talking once Scalia died.

23 points by iaw 6y ago

I believe this is exactly the kind of “Judicial Activism” that would get the right up in arms if it was the left doing it. In theory I like the idea of judicial conservatism; not attempting to change the law and merely interpreting it. But in practice that seems to be applied in ideologically narrow ways.

oh_sigh 6y ago
Judicial activism is the judicial branch believing they are the legislative branch and expanding/changing the scope of laws. A judge seeing what he believes is unconstitutional/unlawful behavior and saying he wishes he could try that case is not activism, it is merely a judge interested in his trade.
- threatofrain 6y ago
  ashtonkem is echoing a common critique of textualism — that the personal worldview of a judge is a better predictor for rulings than a supposedly reliable strategy for reading text.
  - evgen 6y ago
    This. Scalia was widely advertised as a strict textualist, until of course it wasn't convenient (c.f. Heller) and then he was quite willing to both ignore precedent and slice and dice the constitution to fit his desired outcome.
    - Kephael 6y ago
      You're a liar arguing from a bad faith position if you think Heller was decided wrongly. Leftism is really a religion.
    - jki275 6y ago
      Scalia's opinion in Heller is a history lesson, and it's a very careful one. The decision is strictly in line with his judicial philosophy of strictly interpreting the document as it was written.
      - evgen 6y ago
        Scalia's opinion is a lesson in judicial activism and a rather poorly constructed one that serves as an object lesson in how to cherry-pick facts that can be constructed to lead to your previously determined decision. It had nothing to do with the document as it was written, as we have a significant body of historical research into what clauses of the 2nd amendment mean when written as well as a long body of precedent about that amendment which was all ignored so that Scalia could legislate from the bench.
        jki275 6y ago
        There's literally zero precedent on the 2nd Amendment other than Miller, a badly written opinion on a case that was guaranteed to fail for political reasons and applied specifically to NFA short barreled shotguns. Scalia didn't write judicial activism. Nothing he ever wrote was judicial activism. "legislate from the bench?" Come on now. If you like the first amendment, the second exists to protect it. If you don't believe the second amendment exists (and that the opinion you've just stated), then the first doesn't either. The second amendment is the second most strict language in the entire Constitution. "Shall make no law", and "shall not be infringed". You should read Heller -- you clearly have not. He carefully documented all of your arguments and destroyed them. Heller is one of the very few decisions that's come from the bench in the last 60 years that actually strictly respected the exact words of the Constitution for exactly what they said.
        evgen 6y ago
        There was significant precedent on the 2A, I did read Heller, and happened to do my university thesis on US Constitutional and Legal History. Mine was a crim pro focus but still trod similar ground back in the early 90s when Miller and Lewis were the precedents to cite, and a significant part of the years of coursework and months of research was going to actual source on things like what was meant by certain terms and supporting material in the time they were written. I assure you that I know more about this subject than you or whatever NRA pamphlet you last read on the subject. Heller is an embarrassment to Scalia's carefully cultivated image and will eventually be viewed as his Dred Scott.
hirundo 6y ago
Thomas is making a careful argument that the opposite is true, that the judiciary has broadly interpreted the law for maximum indemnity, taking it well beyond its text. BTW, the many on "the right", particularly Randy Barnett, have long argued in favor of judicial activism in the service of his preferred philosophy, original public meaning. He doesn't fault the other side for activism, but for actively pursuing a philosophy he disagrees with, living constitutionalism. It all depends on exactly what you're applying "activism" and "restraint" to. Barnett would argue for restraint in reading Section 230 as creating more authority than its text supports, but activism in applying such restraint.
- abernard1 6y ago
  > Thomas is making a careful argument that the opposite is true, that the judiciary has broadly interpreted the law for maximum indemnity, taking it well beyond its text. Indeed! And there's some real legerdemain going on by the author related to that "indemnity." He brings up traditional cultural ideas around an open and free internet, and he then argues that opponents of Section 230 are against the spirit of the internet. But this is only the case if you believe the spirit of the internet was 3rd party indemnity, and that's what made it grow. (A cynical position to hold in my opinion.) If you believe that the internet is what it is due to openness, then it's people like Twitter and Facebook that have got it all wrong. They're effectively saying "we don't want to be held responsible for content on our platform" (e.g. bear the costs of editorial oversight), and simultaneously "we also don't want to be held responsible for content we take off our platform" (done so voluntary with the same cost burdens they're fighting against). It's a weird type of Internet Provider Exceptionalism: "The Internet is great because the providers were free to do whatever they wanted."
- deleted 6y ago
  [deleted]
abvdasker 6y ago
The Supreme Court has always been blatantly ideological. Legal doctrines like textualism or activism are just rationalizations for decisions motivated by a Justice's political ideology. Always have been. If the court were a strictly rational, non-ideological body, politicians wouldn't fight over appointments the way they do.

abernard1 6y ago

> Section 230 says that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider" So in other words, Twitter and Facebook censored content (and even references to the URL of that content) despite having no obligation to do so. And they censored content that not only they did not create, but was put forward by a traditional newspaper on their "series of tubes." As the content is not prohibited by law, how is that _not_ functioning in an editorial capacity? If Comcast or Cloudflare blocked this exact same content via ipfilters or URL rules, where would the Net "Neutrality" crowd be on this issue? Outside the legal arguments put forward, there is a huge moral hypocrisy here. Net Neutrality advocates have argued that content should not be allowed to be blocked via certain providers (ISPs), while endorsing censorship on others (CDNs, social communication platforms). In the case of Thomas, he's argued against Net Neutrality not on content grounds--but on technical arguments around resource utilization and distribution. Thomas' view is at least consistent as it preserves the idea of _not_ limiting speech, which is more than can be said for the Net "Neutrality" crowd.

patagurbon 6y ago
Internet providers are effectively a monopoly. There's at most 3 providers in an area for cable/fiber. They are utilities. Facebook and Twitter are not. You can still access the NY Post on their website. Twitter and Facebook absolutely have grounds to block content that contains PII or appear to be derived from a hack, especially when both are in effect.
- abernard1 6y ago
  > Facebook and Twitter are not. Facebook and Twitter are also claiming they're not subject to the same rules as traditional broadcast outlets or newspapers. Broadcast media outlets are not monopolies either, and they can't wantonly censor election speech like this by law. If CBS was to decide that all their outlets were going to cover only one candidate's speeches, they would be electioneering, and be afoul of the law. CBS is not even as close to a monopoly as Facebook or Twitter is. We have a case here were two providers took it upon themselves to block references to a newspaper article, relating very directly to speech which would need equal access under any other medium.

sunstone 6y ago

So the guy who never talks goes soliciting the public for a piece of litigation that suits him. Theoretically I thought Supreme Court Justices were expected to be non-partisan in their judicial duties.

iaw 6y ago
He started talking once Scalia died.