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Important to note that this 5th Circuit ruling conflicts with the 11th Circuit's ruling. And SCOTUS had previously reinstated an injunction against this very s

Important to note that this 5th Circuit ruling conflicts with the 11th Circuit's ruling. And SCOTUS had previously reinstated an injunction against this very same law. And this 5th Circuit opinion has very idiosyncratic reasoning [0, just the first few pages will blow your hair back]. A sample: "In urging such sweeping relief, the platforms offer a rather odd inversion of the First Amendment. That Amendment, of course, protects every person’s right to 'the freedom of speech.' But the platforms argue that buried somewhere in the person’s enumerated right to free speech lies a corporation’s unenumerated right to muzzle speech." How the 1st Amendment might protect a corporation's religious POV but not its exercise of editorial control is a very good question. I'm not saying this very conservative SCOTUS won't adopt the 5th Circuit's reasoning, but it still seems unlikely. In my view -- much more likely is that they resolve the Circuit split by adopting the 11th Circuit's view wholeheartedly. [0]: https://techfreedom.org/wp-content/uploads/2022/09/2022-09-16-Published-Opinion-dckt-.pdf https://techfreedom.org/wp-content/uploads/2022/09/2022-09-1...

bluejekyll 4y ago
The term “conservative” means nothing if you apply it to a court which has overturned years of legal norm across various areas of law.
- mustache_kimono 4y ago
  Yeah, certainly not what we once thought of as conservative judicial restraint. One comment I remember reading on Twitter which makes sense: "Funny how what the 1st Amendment means seems to align perfectly with currently fashionable conservative (MAGA) social views."
- epistasis 4y ago
  I think it makes perfect sense if you view the courts as largely a political operation, with a thin veneer of legal language on top. Given the past decades of highly coordinated--and completely politically motivated--court-stacking, it's probably most accurate to put the political definitions ahead of the legal definitions of conservative.
- Kamq 4y ago
  I think it still fits if they return the legal situation to what it had previously been. But any instance that creates a brand new legal situation does not qualify.
- sofixa 4y ago
  Yes, the correct term is reactionary, which many modern "conservatives" are - they don't want things to remain the same, they want a return to "the good old days".
  - encryptluks2 4y ago
    They want the US to be like Saudi Arabia.
- jacobolus 4y ago
  The appropriate description for the 5th circuit is “corrupt, incoherent activism”.
  - xyzzyz 4y ago
    This applies to every court in this country, and even more so to some. If 5th circuit is “corrupt, incoherent activism”, I’m lacking words to even describe the 9th.
    - jacobolus 4y ago
      No, the great majority of judges and courts – even the majority of e.g. Trump-appointed district-court judges – have internally consistent legal philosophies and prejudices which happen to differ from one to another. Sometimes judges talk past each-other or fundamentally disagree, but that is not the same as corruption. For the most part judges take their job seriously and do it carefully and in more or less good faith. What we are talking about here is judges ignoring the constitution, the law, past precedent, the will of the people, and the facts of the case, in order to make up a logically incoherent "argument" that happens to promote the judges’ pre-decided zany partisan outcome. Such rulings are profoundly corrosive to the rule of law and the legitimacy of the court system.
      - xyzzyz 4y ago
        > What we are talking about here is judges ignoring the constitution, the law, past precedent, the will of the people, and the facts of the case, in order to make up a logically incoherent "argument" that happens to promote the judges’ pre-decided zany partisan outcome. Such rulings are profoundly corrosive to the rule of law and the legitimacy of the court system. Yes, and this in fact happens in every court, that's my entire point. I can provide endless examples of outcome-oriented rulings from every single appeals circuit, and from SCOTUS too.
        KerrAvon 4y ago
        I assume you mean SCOTUS prior to 2022? Everyone knows about the right-wing corruption at play in the abortion and the forced school prayer decisions.
- fsckboy 4y ago
  >The term “conservative” means nothing if you apply it to a court which has overturned years of legal norm across various areas of law. your definition of conservative seems to be "obeys Newton's second law", or going further, "synonymous with hysteresis": "resists change, but thereupon resists changing back"? that's just not how people use the term.
bradleyjg 4y ago
It’s a pretty abrupt turnaround from the same legal movement that brought us Citizens United. I’d be interested in a fair (i.e. not overly critical or fawning) book length history of the Federalist Society and how it’s evolved.
- mustache_kimono 4y ago
  I think that history is happening as we speak (Yo, media outlets/reporters interested in writing a feature! This would be an amazing topic.). The crux is really 2016/Trump, Adrian Vermeule's "common good constitutionalism", and outlets like Claremont's The American Mind. For lack of a better term, MAGA conservatives are building an intellectual infrastructure for a very aggressive conservative judiciary right now.
  - mindslight 4y ago
    Can we stop miscategorizing reactionary regressivism as "conservatism" ? There is nothing conservative about it. They're essentially trying to drag us back at least a few decades and destroy longstanding institutions, including things like separation of church and state and the right to access medical care.
    - bradleyjg 4y ago
      No. Because as much as your absolute moral certitude might feel good to express you aren’t changing anyone’s mind with it. On the contrary. There’s tens if not hundreds of millions of them and same for you guys. We are all stuck together in one polity. If we are ever going to achieve a synthesis and get back to a healthier place it’s not going to involve the kind of rhetoric you are indulging in here.
      - o_1 4y ago
        Whoa things escalated quickly, points like these are a complicated of saying no their baddies and here's some fear on top.
      - 4y ago
linkdink 4y ago
The last paragraph of page 111 is interesting because I don't think the majority opinion tries to rebut that criticism, and it destroys the premise of most of their arguments. It's also interesting to compare the tone of the two opinions. The majority is theatrical. That's not what I want to see from a court. Unfortunately, it's hardly unique to this court.
swayvil 4y ago
In one case the corporation is speaking. In the other the corporation is facilitating me speaking to you (like a telephone wire). That strikes me as a pretty clear distinction. My hair is not blown back at all here.
- guelo 4y ago
  > like a telephone wire That's not why people write on social media. There are very many "telephone wires" that have nobody listening on the other side. What every contributor is after is the audience. But there is no legal right to an audience.
- belltaco 4y ago
  So a Linux User Group cannot kick out someone that's espousing neo-nazi viewpoints during meetings because they're a facilitator of them speaking to you, and because neo-nazism is a political viewpoint?
  - BrandonM 4y ago
    Does the LUG have 50M MAU?
    - jlawson 4y ago
      This is really the critical factor. Anti-speech pro-corporate-authority advocates always try to put these monopolistic, unescapable megacorporations in the same category as some local mom-and-pop operation. It's a massive intentional category error; megacorps are not little companies you can just walk awawy from. There is a point where a corporation's influence becomes so unescapable and so capable of greatly degrading your life that it must be treated in some ways like a government, for the same reasons we treat government differently from just another company or citizen. The same reason that the phone company or a company that owns all the local roads or water mains can't decide to "stop serving" you because they don't like your religion.
      - scarface74 4y ago
DannyBee 4y ago
This opinion is just badly written and badly reasoned. It's not even well written enough that it is worth trying to debate. Of course the judges in question were rated unqualified by the ABA (which is a really low bar) so not surprising.
- galaxyLogic 4y ago
  > a corporation’s unenumerated right to muzzle speech .. That is clearly not based on facts. Corporations simply have a right to choose which speech they will AMPLIFY. That is not the same as muzzling anybody. They don't knock on your door and say you better stop expressing these views or we will harm you. They don't even harass people online. They just simply choose which speech they will pass on and which not. If you tell me something and I don't tell anybody what you told me, does that mean I "muzzle your speech". Of course not. Rather it is the case that you don't have the right to demand that I pass on your emails to all my contacts. This is bad jurisprudence. I wonder, was this judge perhaps nominated by D. Trump?
  - jeff-davis 4y ago
    "choose which speech they will AMPLIFY" That makes private messages an interesting question, though. Or even cases where many people explicitly subscribe to a single voice -- is the platform really amplifying anything? Blocking such messages (to specific recipients who specifically opt to receive them) seems materially different than declining to promote/amplify such messages. I'm speaking from an ethical standpoint; it may or may not matter legally.
  - wernercd 4y ago
    "that is not the same as muzzling" They are actively blocking stories about Biden. Actively filtering stories about negative aspects of COVID vaccines. They are actively filtering stories about inconsistencies in the 2020 election - "The most secure ever". They are amplifying stuff - absolutely... but they are also censoring free speech because "corporations are allowed too". "If you tell me something and I don't tell anybody what you told me, does that mean I "muzzle your speech"." No... but if you post a story and your account gets banned for stuff that's later found out to be true (IE: hunters laptop and the New York Post RIGHT BEFORE AN ELECTION)? that's absolutely muzzling speech and suppressing facts.
throwaway0asd 4y ago
If social media wishes to be immune from lawsuits regarding the content it publishes, section 203, then it should not have the ability to censor such content for an explicit commercial revenue model. I understand why people hate that opinion, because they want civil discourse and nearly free access to media online. Uncensored content pushes normal people out. Those things are great, but are ultimately out of alignment with a commercial revenue model. The result is social media imposing an algorithmic bias to increase engagement, the results of which are often toxic, and that toxicity ultimately pushes normal people out anyways. You can’t have your cake and eat it too.
- root_axis 4y ago
  > If social media wishes to be immune from lawsuits regarding the content it publishes, section 203, then it should not have the ability to censor such content for an explicit commercial revenue model. Why? This is seems like a total non-sequitur. It's pretty obvious that the individual posting illegal content is the person responsible for it and not the platform it's posted to, unless the platform is soliciting or refusing to remove said content. The anti-230 reasoning seems purely motivated by punitive thinking rather than what actually makes sense in reality. > Those things are great, but are ultimately out of alignment with a commercial revenue model. I would say it's out of alignment with the ad model specifically. Currently, there exists a financial incentive to curate content in a manner that pleases advertisers and the internet mobs that patronize their businesses. However, if social media companies were somehow forced into a subscription model, they would have a financial incentive to avoid banning users because it would hurt the bottom line, it would also eliminate the incentive to curate content to the prerogative of advertisers, and it would make the user experience much better due to lack of ads and the need to create better user experiences to maintain retention.
  - bobthepanda 4y ago
    230 is broad. At the time, websites were mostly just hosts of content. The individual is posting on the website but otherwise the website is a tool. This changes with recommendation algorithms. Nearly all social media is based on some kind of recommendation algorithm. Should that be covered by 230? It could be argued that it starts to get closer to an endorsement of certain content (and indeed, some of that recommended stuff is ads.)
eduction 4y ago
> How the 1st Amendment might protect a corporation's religious POV but not its exercise of editorial control is a very good question I don’t think this court buys the idea that the platforms exercise editorial control. For example: “But the more fundamental problem with the Platforms’ reliance on Herbert is that they do not have an “editorial process” that looks anything like a traditional publisher’s. See supra Part III.C.2.c. Herbert involved discovery into how an editor selected, composed, and edited a particular story. See 441 U.S. at 156–57. But the Platforms, of course, neither select, compose, nor edit (except in rare instances after dissemination) the speech they host. So even if there was a different rule for disclosure requirements implicating a newspaper-like editorial process, that rule would not apply here because the Platforms have no such process.” Or: “ The Platforms are nothing like the newspaper in Miami Herald. Unlike newspapers, the Platforms exercise virtually no editorial control or judgment. The Platforms use algorithms to screen out certain obscene and spam-related content.8 And then virtually everything else is just posted to the Platform with zero editorial control or judgment. “Something well north of 99% of th[is] content . . . never gets reviewed further. The content on a site is, to that extent, invisible to the [Platform].” NetChoice, LLC v. Moody, 546 F. Supp. 3d 1082, 1092 (N.D. Fla. 2021). Thus the Platforms, unlike newspapers, are primarily “conduit[s] for news, comment, and advertising.” Miami Herald, 418 U.S. at 258. And that’s why the Supreme Court has described them as “the modern public square.” Packingham, 137 S. Ct. at 1737; see also Biden v. Knight First Amend. Inst., 141 S. Ct. 1220, 1224 (2021) (Thomas, J., concurring) (noting Platforms are also “unlike newspapers” in that they “hold themselves out as organizations that focus on distributing the speech of the broader public”). The Platforms’ own representations confirm this.9 They’ve told their users: “We try to explicitly view ourselves as not editors. . . . We don’t want to have editorial judgment over the content that’s in your feed.”10 They’ve told the public that they “may not monitor,” “do not endorse,” and “cannot take responsibility for” the content on their Platforms.11 They’ve told Congress that their “goal is to offer a platform for all ideas.”12 And they’ve told courts—over and over again—that they simply “serv[e] as conduits for other parties’ speech.”13“ They kind of have a point. The platforms seem most interested in minimizing financial costs like the hiring of moderation staff and loss of advertising and reputational costs like PR damage and pissing off sensitive users. They don’t seem to have any particular editorial mission. They seem to mainly want to grow and profit. I actually wonder if they would have a stronger case if they were avowedly advancing a leftist agenda. IANAL
guelo 4y ago
> That Amendment, of course, protects every person’s right to 'the freedom of speech.' Wow that's just made up! All the amendment says is "Congress shall make no law...". These are supposedly originalist judges but really they're just culture warriors.
- favorited 4y ago
  They're only originalists until you ask to see where the Constitution grants them judicial review. Then they need to start pointing at the Federalist Papers.
rayiner 4y ago
The distinction the court is drawing isn’t about corporations versus non-corporations, but speech versus moderation. You say moderation is about “editorial control” but that’s exactly the debate. Is Facebook moderation equivalent to the NYT deciding what to publish and not publish? When someone reads a Facebook post, does anyone think that Facebook is the speaker? That legal fiction is attractive for various reasons, but I don’t think it’s such a slam dunk. I think there is a fair argument that Facebook is a pipe for someone else’s speech.
- jagged-chisel 4y ago
  The NYT doesn’t write content. They hire writers. Is that the difference? NYT publishes content for which they pay? What happens when writers start getting paid ad revenue through Facebook or Twitter, etc?
  - xyzzyz 4y ago
    It’s not so much about getting paid by NYT, but rather about NYT going through every word they paid for, and deciding whether to publish it or not after all. Facebook and Twitter do not do that: while they do have some very basic automated filters, they are extremely hands off with the large majority of the content on their platform, only reviewing maybe a single digit percentage of published stuff, and only after a fact. Because of this, they claim that they shouldn’t be legally liable on content published on their platform, as they weren’t making any decisions whether to publish it or not. This is the major difference with NYT: NYT does not claim that it’s just random writers publishing in it, and they don’t pay much attention to what is inside.
- rainsford 4y ago
  Even if you subscribe to the viewpoint that Facebook is a "pipe" rather than the speaker, it seems hard to avoid the idea that Facebook's choice of which speech it is a pipe for constitutes free speech by Facebook. Nobody should be confused as to whether a newspaper is the author of letters to the editor, but it has a 1st amendment right to choose which letters to publish.
yieldcrv 4y ago
with that logic i dont think an en banc ruling would result in anything different But the Supreme Court is more likely to agree with the other appeals court, or otherwise modify the scope of the texas law
seadan83 4y ago
1st amendment states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;" Note, it does not say anything about corporations. It simply says the government cannot put you in jail for freedom of expression. Ergo, it's totally within any establishments rights to ask you to leave if they don't like what you have to say. That is very different from the police coming in and arresting you.

bluejekyll 4y ago

The term “conservative” means nothing if you apply it to a court which has overturned years of legal norm across various areas of law.

mustache_kimono 4y ago
Yeah, certainly not what we once thought of as conservative judicial restraint. One comment I remember reading on Twitter which makes sense: "Funny how what the 1st Amendment means seems to align perfectly with currently fashionable conservative (MAGA) social views."
epistasis 4y ago
I think it makes perfect sense if you view the courts as largely a political operation, with a thin veneer of legal language on top. Given the past decades of highly coordinated--and completely politically motivated--court-stacking, it's probably most accurate to put the political definitions ahead of the legal definitions of conservative.
Kamq 4y ago
I think it still fits if they return the legal situation to what it had previously been. But any instance that creates a brand new legal situation does not qualify.
sofixa 4y ago
Yes, the correct term is reactionary, which many modern "conservatives" are - they don't want things to remain the same, they want a return to "the good old days".
- encryptluks2 4y ago
  They want the US to be like Saudi Arabia.
jacobolus 4y ago
The appropriate description for the 5th circuit is “corrupt, incoherent activism”.
- xyzzyz 4y ago
  This applies to every court in this country, and even more so to some. If 5th circuit is “corrupt, incoherent activism”, I’m lacking words to even describe the 9th.
  - jacobolus 4y ago
    No, the great majority of judges and courts – even the majority of e.g. Trump-appointed district-court judges – have internally consistent legal philosophies and prejudices which happen to differ from one to another. Sometimes judges talk past each-other or fundamentally disagree, but that is not the same as corruption. For the most part judges take their job seriously and do it carefully and in more or less good faith. What we are talking about here is judges ignoring the constitution, the law, past precedent, the will of the people, and the facts of the case, in order to make up a logically incoherent "argument" that happens to promote the judges’ pre-decided zany partisan outcome. Such rulings are profoundly corrosive to the rule of law and the legitimacy of the court system.
    - xyzzyz 4y ago
      > What we are talking about here is judges ignoring the constitution, the law, past precedent, the will of the people, and the facts of the case, in order to make up a logically incoherent "argument" that happens to promote the judges’ pre-decided zany partisan outcome. Such rulings are profoundly corrosive to the rule of law and the legitimacy of the court system. Yes, and this in fact happens in every court, that's my entire point. I can provide endless examples of outcome-oriented rulings from every single appeals circuit, and from SCOTUS too.
      - KerrAvon 4y ago
        I assume you mean SCOTUS prior to 2022? Everyone knows about the right-wing corruption at play in the abortion and the forced school prayer decisions.
fsckboy 4y ago
>The term “conservative” means nothing if you apply it to a court which has overturned years of legal norm across various areas of law. your definition of conservative seems to be "obeys Newton's second law", or going further, "synonymous with hysteresis": "resists change, but thereupon resists changing back"? that's just not how people use the term.

bradleyjg 4y ago

It’s a pretty abrupt turnaround from the same legal movement that brought us Citizens United. I’d be interested in a fair (i.e. not overly critical or fawning) book length history of the Federalist Society and how it’s evolved.

mustache_kimono 4y ago
I think that history is happening as we speak (Yo, media outlets/reporters interested in writing a feature! This would be an amazing topic.). The crux is really 2016/Trump, Adrian Vermeule's "common good constitutionalism", and outlets like Claremont's The American Mind. For lack of a better term, MAGA conservatives are building an intellectual infrastructure for a very aggressive conservative judiciary right now.
- mindslight 4y ago
  Can we stop miscategorizing reactionary regressivism as "conservatism" ? There is nothing conservative about it. They're essentially trying to drag us back at least a few decades and destroy longstanding institutions, including things like separation of church and state and the right to access medical care.
  - bradleyjg 4y ago
    No. Because as much as your absolute moral certitude might feel good to express you aren’t changing anyone’s mind with it. On the contrary. There’s tens if not hundreds of millions of them and same for you guys. We are all stuck together in one polity. If we are ever going to achieve a synthesis and get back to a healthier place it’s not going to involve the kind of rhetoric you are indulging in here.
    - o_1 4y ago
      Whoa things escalated quickly, points like these are a complicated of saying no their baddies and here's some fear on top.
    - 4y ago

linkdink 4y ago

The last paragraph of page 111 is interesting because I don't think the majority opinion tries to rebut that criticism, and it destroys the premise of most of their arguments. It's also interesting to compare the tone of the two opinions. The majority is theatrical. That's not what I want to see from a court. Unfortunately, it's hardly unique to this court.

swayvil 4y ago

In one case the corporation is speaking. In the other the corporation is facilitating me speaking to you (like a telephone wire). That strikes me as a pretty clear distinction. My hair is not blown back at all here.

guelo 4y ago
> like a telephone wire That's not why people write on social media. There are very many "telephone wires" that have nobody listening on the other side. What every contributor is after is the audience. But there is no legal right to an audience.
belltaco 4y ago
So a Linux User Group cannot kick out someone that's espousing neo-nazi viewpoints during meetings because they're a facilitator of them speaking to you, and because neo-nazism is a political viewpoint?
- BrandonM 4y ago
  Does the LUG have 50M MAU?
  - jlawson 4y ago
    This is really the critical factor. Anti-speech pro-corporate-authority advocates always try to put these monopolistic, unescapable megacorporations in the same category as some local mom-and-pop operation. It's a massive intentional category error; megacorps are not little companies you can just walk awawy from. There is a point where a corporation's influence becomes so unescapable and so capable of greatly degrading your life that it must be treated in some ways like a government, for the same reasons we treat government differently from just another company or citizen. The same reason that the phone company or a company that owns all the local roads or water mains can't decide to "stop serving" you because they don't like your religion.
    - scarface74 4y ago

DannyBee 4y ago

This opinion is just badly written and badly reasoned. It's not even well written enough that it is worth trying to debate. Of course the judges in question were rated unqualified by the ABA (which is a really low bar) so not surprising.

galaxyLogic 4y ago
> a corporation’s unenumerated right to muzzle speech .. That is clearly not based on facts. Corporations simply have a right to choose which speech they will AMPLIFY. That is not the same as muzzling anybody. They don't knock on your door and say you better stop expressing these views or we will harm you. They don't even harass people online. They just simply choose which speech they will pass on and which not. If you tell me something and I don't tell anybody what you told me, does that mean I "muzzle your speech". Of course not. Rather it is the case that you don't have the right to demand that I pass on your emails to all my contacts. This is bad jurisprudence. I wonder, was this judge perhaps nominated by D. Trump?
- jeff-davis 4y ago
  "choose which speech they will AMPLIFY" That makes private messages an interesting question, though. Or even cases where many people explicitly subscribe to a single voice -- is the platform really amplifying anything? Blocking such messages (to specific recipients who specifically opt to receive them) seems materially different than declining to promote/amplify such messages. I'm speaking from an ethical standpoint; it may or may not matter legally.
- wernercd 4y ago
  "that is not the same as muzzling" They are actively blocking stories about Biden. Actively filtering stories about negative aspects of COVID vaccines. They are actively filtering stories about inconsistencies in the 2020 election - "The most secure ever". They are amplifying stuff - absolutely... but they are also censoring free speech because "corporations are allowed too". "If you tell me something and I don't tell anybody what you told me, does that mean I "muzzle your speech"." No... but if you post a story and your account gets banned for stuff that's later found out to be true (IE: hunters laptop and the New York Post RIGHT BEFORE AN ELECTION)? that's absolutely muzzling speech and suppressing facts.

throwaway0asd 4y ago

If social media wishes to be immune from lawsuits regarding the content it publishes, section 203, then it should not have the ability to censor such content for an explicit commercial revenue model. I understand why people hate that opinion, because they want civil discourse and nearly free access to media online. Uncensored content pushes normal people out. Those things are great, but are ultimately out of alignment with a commercial revenue model. The result is social media imposing an algorithmic bias to increase engagement, the results of which are often toxic, and that toxicity ultimately pushes normal people out anyways. You can’t have your cake and eat it too.

root_axis 4y ago
> If social media wishes to be immune from lawsuits regarding the content it publishes, section 203, then it should not have the ability to censor such content for an explicit commercial revenue model. Why? This is seems like a total non-sequitur. It's pretty obvious that the individual posting illegal content is the person responsible for it and not the platform it's posted to, unless the platform is soliciting or refusing to remove said content. The anti-230 reasoning seems purely motivated by punitive thinking rather than what actually makes sense in reality. > Those things are great, but are ultimately out of alignment with a commercial revenue model. I would say it's out of alignment with the ad model specifically. Currently, there exists a financial incentive to curate content in a manner that pleases advertisers and the internet mobs that patronize their businesses. However, if social media companies were somehow forced into a subscription model, they would have a financial incentive to avoid banning users because it would hurt the bottom line, it would also eliminate the incentive to curate content to the prerogative of advertisers, and it would make the user experience much better due to lack of ads and the need to create better user experiences to maintain retention.
- bobthepanda 4y ago
  230 is broad. At the time, websites were mostly just hosts of content. The individual is posting on the website but otherwise the website is a tool. This changes with recommendation algorithms. Nearly all social media is based on some kind of recommendation algorithm. Should that be covered by 230? It could be argued that it starts to get closer to an endorsement of certain content (and indeed, some of that recommended stuff is ads.)

eduction 4y ago

> How the 1st Amendment might protect a corporation's religious POV but not its exercise of editorial control is a very good question I don’t think this court buys the idea that the platforms exercise editorial control. For example: “But the more fundamental problem with the Platforms’ reliance on Herbert is that they do not have an “editorial process” that looks anything like a traditional publisher’s. See supra Part III.C.2.c. Herbert involved discovery into how an editor selected, composed, and edited a particular story. See 441 U.S. at 156–57. But the Platforms, of course, neither select, compose, nor edit (except in rare instances after dissemination) the speech they host. So even if there was a different rule for disclosure requirements implicating a newspaper-like editorial process, that rule would not apply here because the Platforms have no such process.” Or: “ The Platforms are nothing like the newspaper in Miami Herald. Unlike newspapers, the Platforms exercise virtually no editorial control or judgment. The Platforms use algorithms to screen out certain obscene and spam-related content.8 And then virtually everything else is just posted to the Platform with zero editorial control or judgment. “Something well north of 99% of th[is] content . . . never gets reviewed further. The content on a site is, to that extent, invisible to the [Platform].” NetChoice, LLC v. Moody, 546 F. Supp. 3d 1082, 1092 (N.D. Fla. 2021). Thus the Platforms, unlike newspapers, are primarily “conduit[s] for news, comment, and advertising.” Miami Herald, 418 U.S. at 258. And that’s why the Supreme Court has described them as “the modern public square.” Packingham, 137 S. Ct. at 1737; see also Biden v. Knight First Amend. Inst., 141 S. Ct. 1220, 1224 (2021) (Thomas, J., concurring) (noting Platforms are also “unlike newspapers” in that they “hold themselves out as organizations that focus on distributing the speech of the broader public”). The Platforms’ own representations confirm this.9 They’ve told their users: “We try to explicitly view ourselves as not editors. . . . We don’t want to have editorial judgment over the content that’s in your feed.”10 They’ve told the public that they “may not monitor,” “do not endorse,” and “cannot take responsibility for” the content on their Platforms.11 They’ve told Congress that their “goal is to offer a platform for all ideas.”12 And they’ve told courts—over and over again—that they simply “serv[e] as conduits for other parties’ speech.”13“ They kind of have a point. The platforms seem most interested in minimizing financial costs like the hiring of moderation staff and loss of advertising and reputational costs like PR damage and pissing off sensitive users. They don’t seem to have any particular editorial mission. They seem to mainly want to grow and profit. I actually wonder if they would have a stronger case if they were avowedly advancing a leftist agenda. IANAL

guelo 4y ago

> That Amendment, of course, protects every person’s right to 'the freedom of speech.' Wow that's just made up! All the amendment says is "Congress shall make no law...". These are supposedly originalist judges but really they're just culture warriors.

favorited 4y ago
They're only originalists until you ask to see where the Constitution grants them judicial review. Then they need to start pointing at the Federalist Papers.

rayiner 4y ago

The distinction the court is drawing isn’t about corporations versus non-corporations, but speech versus moderation. You say moderation is about “editorial control” but that’s exactly the debate. Is Facebook moderation equivalent to the NYT deciding what to publish and not publish? When someone reads a Facebook post, does anyone think that Facebook is the speaker? That legal fiction is attractive for various reasons, but I don’t think it’s such a slam dunk. I think there is a fair argument that Facebook is a pipe for someone else’s speech.

jagged-chisel 4y ago
The NYT doesn’t write content. They hire writers. Is that the difference? NYT publishes content for which they pay? What happens when writers start getting paid ad revenue through Facebook or Twitter, etc?
- xyzzyz 4y ago
  It’s not so much about getting paid by NYT, but rather about NYT going through every word they paid for, and deciding whether to publish it or not after all. Facebook and Twitter do not do that: while they do have some very basic automated filters, they are extremely hands off with the large majority of the content on their platform, only reviewing maybe a single digit percentage of published stuff, and only after a fact. Because of this, they claim that they shouldn’t be legally liable on content published on their platform, as they weren’t making any decisions whether to publish it or not. This is the major difference with NYT: NYT does not claim that it’s just random writers publishing in it, and they don’t pay much attention to what is inside.
rainsford 4y ago
Even if you subscribe to the viewpoint that Facebook is a "pipe" rather than the speaker, it seems hard to avoid the idea that Facebook's choice of which speech it is a pipe for constitutes free speech by Facebook. Nobody should be confused as to whether a newspaper is the author of letters to the editor, but it has a 1st amendment right to choose which letters to publish.

yieldcrv 4y ago

with that logic i dont think an en banc ruling would result in anything different But the Supreme Court is more likely to agree with the other appeals court, or otherwise modify the scope of the texas law

seadan83 4y ago

1st amendment states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;" Note, it does not say anything about corporations. It simply says the government cannot put you in jail for freedom of expression. Ergo, it's totally within any establishments rights to ask you to leave if they don't like what you have to say. That is very different from the police coming in and arresting you.