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How is this allowed in light of the interstate commerce clause? SC would have no recourse for web hosts that have no nexus within it's borders? Are they going

How is this allowed in light of the interstate commerce clause? SC would have no recourse for web hosts that have no nexus within it's borders? Are they going to start to force local ISP's to block out of state hosts?

efsavage 4y ago
I think you're underestimating how ... flexible ... the Constitution is lately.
mbreese 4y ago
IIRC, if the industry can compete in an interstate market, it falls under the interstate commerce clause — even if the business only operates within a single state. So even forcing data to operate within a single state border would still not protect the bill. At least, that’s the theory behind regulating gun manufacturers that only operate with a single state. IANAL, but I don’t know if this theory has ever been tested at the USSC level.
BitwiseFool 4y ago
Interstate Commerce could be used to thwart this, but wouldn't First Amendment be a more compelling justification?
- 32163704 4y ago
  The first amendment doesn't have anything to say about the Internet, so it doesn't apply. Think I'm joking? This is the stated judicial philosophy of the majority of Supreme Court justices. There is no traditional deeply rooted in American tradition that says anything about the Internet, either.
  - dragonwriter 4y ago
    > The first amendment doesn't have anything to say about the Internet, so it doesn't apply. Moreover, when taking that mode of interpretation, it doesn't say anything about the States, nor does the 14th Amendment say anything about some of the rights protected against federal intrusion by the Bill of Rights.
    - 32163704 4y ago
      I believe the process you’re talking about is called incorporation: https://en.m.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights https://en.m.wikipedia.org/wiki/Incorporation_of_the_Bill_of... The Court will rely on this precedent where convenient, I suspect.
      - dragonwriter 4y ago
        What I am talking about is that the particular mode of originalism that seems to have been adopted in Dobbs (and especially the extension specifically naming the broader doctrine of substantive due process as needing reconsideration in Thomas’ concurrence) is one which it is hard to see incorporation under the due process clause surviving if applied in any intellectually consistent, coherent manner.
        32163704 4y ago
        Agreed. If it does stand, it will be in order to maintain ideological consistency, not judicial consistency. What a mess.
SamoyedFurFluff 4y ago
The goal isn’t whether or not it’s allowed via whatever clause. The goal is to force people to ask themselves “do you want to be made an example of to prove it”.
- jasonjayr 4y ago
  To be honest, I think the goal is more to get this in front of the current supreme court to try and chip away at more federal control over laws like this.
willcipriano 4y ago
The interstate commerce clause was hollowed out and left undefended[0]. Go on Reddit/Twitter a you can find a bunch of people crying about abortion who were previously making fun of "StAteS RiGhtS". We tried to warn them but nobody wanted to listen. [0]https://en.wikipedia.org/wiki/Wickard_v._Filburn https://en.wikipedia.org/wiki/Wickard_v._Filburn
- dragonwriter 4y ago
  > The interstate commerce clause was hollowed out and left undefended Your citation to Wickard v. Fillburn for support of this is...bizarre. That case took what some view as an unreasonably expansive view of the federal power under the ICC, but that does the opposite of supporting the contention that it was “hollowed out” in a way that expands state power into the reserved federal space.
  - willcipriano 4y ago
    Take the first amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press..." It explicitly says Congress however it is currently interpreted that it applies to all governmental organizations. Federal, state and local. It has previously been argued that the same limitation on interstate law existed at the state level, as the authority of a state could not exceed that of the congress when it came to national matters. If congress effectively has no limitation, there is no limitation to exceed.
    - dragonwriter 4y ago
      > It explicitly says Congress however it is currently interpreted that it applies to all governmental organizations. Federal, state and local. No, it isn't. States are limited by the 14th Amendment. Now, the Supreme Court has interpreted the Due Process Clause of the 14th Amendment to apply a whole lot of substantive rights against the states, including rights exactly identical to those protected against federal interference by the 1st, 2nd, 3rd (but only, to date, but one Circuit Court), 4th, 5th, most of the 6th (except for the jury locality requirement), and 8th (but maybe not the excessive bail requirement) amendments. > It has previously been argued that the same limitation on interstate law existed at the state level, as the authority of a state could not exceed that of the congress when it came to national matters. The interstate commerce clause argument against the state isn't that states can't do what Congress can't: that states can regulate purely intrastate Commerce is not subject to serious dispute. The argument is that the interstate commerce clause itself prohibits many state regulations of interstate commerce, and further empowers Congress to further narrow the permissible space of state regulations of interstate commerce.
32163704 4y ago
>How is this allowed in light of the interstate commerce clause? Laws are allowed until the Court rules on them. The states can pass all manner of fucked up laws (and they will), and they will stand while we figure this out -- or, until the Supreme Court rules in their favor. Edit: changing Supreme Court to Courts, since the appellate court exists. But the point is the same.
- buscoquadnary 4y ago
  My understanding is that this can go to a federal court pretty quickly who can then rule on this and block it, and it can be appellead up to the Supreme court, but for the time being it will be stopped, then I am assuming the Supreme Court will defer to whatever the appellate court decided because it is so open and shut.
  - 32163704 4y ago
    >I am assuming the Supreme Court will defer to whatever the appellate court decided because it is so open and shut. Out of curiosity, what about the current makeup of appellate courts in this region + the Supreme Court makes you think this is going to get shut down quickly?
    - buscoquadnary 4y ago
      I can't predict the future, but I also will point out if it gets to the SC it won't be now, it will be the SC 10 years from now. That being said I would hope this is an open and shut enoght case under the 1st Amendment and the Interstate Commerce clause to justify this. Which I would hope overrules personal agendas in the court. I know a lot of people are upset with the overturn of Roe v Wade, but even the initial judges in that case said the constitutional ground that case was ruled on was shaky, which my understanding is the basic job of the SC is to rule on the constitutionality of laws. Now decades of an activist judiciary have distorted that concept as the legislative branch has chosen to abdicate their responsibility for their own gain, but the fact still stands, congress should be making the laws and the courts deciding if they are constitutional.
parasense 4y ago
> How is this allowed in light of the interstate commerce clause? It's complicated. Obviously a website cannot simply proclaim to only facilitate the dissemination of information to people exclusively in one state, or to exclude people in another. There is practically no concept of mutual exclusivity or mutual inclusivity on the internet, so then it's abjectly "interstate" or even "international". But it's not that simple. The commerce clause tends to apply to federal laws, of things that transit state or territorial lines. Just because something could transit a state line, does not mean the all things in all states are automatically under federal regulation, or that federal regulation has supremacy. Obviously certain things are legal in one state but not in others, and things might be legal or illegal at a federal level regardless of interstate commerce. The question is, is free speech subject to interstate commerce? What about commercial speech (which is afforded less 1st amendment protections)? Since we are talking about free speech, commercial or otherwise, does the idea of commerce clauses even apply? According to Heller case, and recently reaffirmed by the NY v Bruen case, when dealing with civil liberties the courts must apply strict scrutiny. So it might boil down to a simple 1st amendment case without any commerce clause mental gymnastics.

efsavage 4y ago

I think you're underestimating how ... flexible ... the Constitution is lately.

mbreese 4y ago

IIRC, if the industry can compete in an interstate market, it falls under the interstate commerce clause — even if the business only operates within a single state. So even forcing data to operate within a single state border would still not protect the bill. At least, that’s the theory behind regulating gun manufacturers that only operate with a single state. IANAL, but I don’t know if this theory has ever been tested at the USSC level.

BitwiseFool 4y ago

Interstate Commerce could be used to thwart this, but wouldn't First Amendment be a more compelling justification?

32163704 4y ago
The first amendment doesn't have anything to say about the Internet, so it doesn't apply. Think I'm joking? This is the stated judicial philosophy of the majority of Supreme Court justices. There is no traditional deeply rooted in American tradition that says anything about the Internet, either.
- dragonwriter 4y ago
  > The first amendment doesn't have anything to say about the Internet, so it doesn't apply. Moreover, when taking that mode of interpretation, it doesn't say anything about the States, nor does the 14th Amendment say anything about some of the rights protected against federal intrusion by the Bill of Rights.
  - 32163704 4y ago
    I believe the process you’re talking about is called incorporation: https://en.m.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights https://en.m.wikipedia.org/wiki/Incorporation_of_the_Bill_of... The Court will rely on this precedent where convenient, I suspect.
    - dragonwriter 4y ago
      What I am talking about is that the particular mode of originalism that seems to have been adopted in Dobbs (and especially the extension specifically naming the broader doctrine of substantive due process as needing reconsideration in Thomas’ concurrence) is one which it is hard to see incorporation under the due process clause surviving if applied in any intellectually consistent, coherent manner.
      - 32163704 4y ago
        Agreed. If it does stand, it will be in order to maintain ideological consistency, not judicial consistency. What a mess.

SamoyedFurFluff 4y ago

The goal isn’t whether or not it’s allowed via whatever clause. The goal is to force people to ask themselves “do you want to be made an example of to prove it”.

jasonjayr 4y ago
To be honest, I think the goal is more to get this in front of the current supreme court to try and chip away at more federal control over laws like this.

willcipriano 4y ago

The interstate commerce clause was hollowed out and left undefended[0]. Go on Reddit/Twitter a you can find a bunch of people crying about abortion who were previously making fun of "StAteS RiGhtS". We tried to warn them but nobody wanted to listen. [0]https://en.wikipedia.org/wiki/Wickard_v._Filburn https://en.wikipedia.org/wiki/Wickard_v._Filburn

dragonwriter 4y ago
> The interstate commerce clause was hollowed out and left undefended Your citation to Wickard v. Fillburn for support of this is...bizarre. That case took what some view as an unreasonably expansive view of the federal power under the ICC, but that does the opposite of supporting the contention that it was “hollowed out” in a way that expands state power into the reserved federal space.
- willcipriano 4y ago
  Take the first amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press..." It explicitly says Congress however it is currently interpreted that it applies to all governmental organizations. Federal, state and local. It has previously been argued that the same limitation on interstate law existed at the state level, as the authority of a state could not exceed that of the congress when it came to national matters. If congress effectively has no limitation, there is no limitation to exceed.
  - dragonwriter 4y ago
    > It explicitly says Congress however it is currently interpreted that it applies to all governmental organizations. Federal, state and local. No, it isn't. States are limited by the 14th Amendment. Now, the Supreme Court has interpreted the Due Process Clause of the 14th Amendment to apply a whole lot of substantive rights against the states, including rights exactly identical to those protected against federal interference by the 1st, 2nd, 3rd (but only, to date, but one Circuit Court), 4th, 5th, most of the 6th (except for the jury locality requirement), and 8th (but maybe not the excessive bail requirement) amendments. > It has previously been argued that the same limitation on interstate law existed at the state level, as the authority of a state could not exceed that of the congress when it came to national matters. The interstate commerce clause argument against the state isn't that states can't do what Congress can't: that states can regulate purely intrastate Commerce is not subject to serious dispute. The argument is that the interstate commerce clause itself prohibits many state regulations of interstate commerce, and further empowers Congress to further narrow the permissible space of state regulations of interstate commerce.

32163704 4y ago

>How is this allowed in light of the interstate commerce clause? Laws are allowed until the Court rules on them. The states can pass all manner of fucked up laws (and they will), and they will stand while we figure this out -- or, until the Supreme Court rules in their favor. Edit: changing Supreme Court to Courts, since the appellate court exists. But the point is the same.

buscoquadnary 4y ago
My understanding is that this can go to a federal court pretty quickly who can then rule on this and block it, and it can be appellead up to the Supreme court, but for the time being it will be stopped, then I am assuming the Supreme Court will defer to whatever the appellate court decided because it is so open and shut.
- 32163704 4y ago
  >I am assuming the Supreme Court will defer to whatever the appellate court decided because it is so open and shut. Out of curiosity, what about the current makeup of appellate courts in this region + the Supreme Court makes you think this is going to get shut down quickly?
  - buscoquadnary 4y ago
    I can't predict the future, but I also will point out if it gets to the SC it won't be now, it will be the SC 10 years from now. That being said I would hope this is an open and shut enoght case under the 1st Amendment and the Interstate Commerce clause to justify this. Which I would hope overrules personal agendas in the court. I know a lot of people are upset with the overturn of Roe v Wade, but even the initial judges in that case said the constitutional ground that case was ruled on was shaky, which my understanding is the basic job of the SC is to rule on the constitutionality of laws. Now decades of an activist judiciary have distorted that concept as the legislative branch has chosen to abdicate their responsibility for their own gain, but the fact still stands, congress should be making the laws and the courts deciding if they are constitutional.

parasense 4y ago

> How is this allowed in light of the interstate commerce clause? It's complicated. Obviously a website cannot simply proclaim to only facilitate the dissemination of information to people exclusively in one state, or to exclude people in another. There is practically no concept of mutual exclusivity or mutual inclusivity on the internet, so then it's abjectly "interstate" or even "international". But it's not that simple. The commerce clause tends to apply to federal laws, of things that transit state or territorial lines. Just because something could transit a state line, does not mean the all things in all states are automatically under federal regulation, or that federal regulation has supremacy. Obviously certain things are legal in one state but not in others, and things might be legal or illegal at a federal level regardless of interstate commerce. The question is, is free speech subject to interstate commerce? What about commercial speech (which is afforded less 1st amendment protections)? Since we are talking about free speech, commercial or otherwise, does the idea of commerce clauses even apply? According to Heller case, and recently reaffirmed by the NY v Bruen case, when dealing with civil liberties the courts must apply strict scrutiny. So it might boil down to a simple 1st amendment case without any commerce clause mental gymnastics.