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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)

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.
    - mindslight 4y ago
      Rhetoric? I'm making an objective point about the political spectrum. Moldbug labeled his own philosophy as the Reaction, and condemned conservatism as being doomed to perpetual failure because some progressivism inevitably occurs regardless. And it's just plainly nonsensical to label a movement aimed at undermining longstanding institutions as "conservative". As far as synthesis and reconciliation, for a long time I viewed the answer as that of respecting individual liberty. Each party seems to get its constituents excited about a desire for individual freedoms on topics that matter to them, and then transmutes that energy into enacting authoritarian regulations that benefit their commercial sponsors. I had hoped that over time the liberty would be an attractor that gained ever more ground. But the flare up of grassroots authoritarianism, specifically in the Republican party where it has gone mainstream, has shown this was too optimistic. So I'm left hoping that there are enough actual conservatives horrified by these developments that will end up voting for the actually conservative options (which now seems to be mostly in the Democratic party) to keep the off the rails reactionary populism from causing too much damage.
      - trimethylpurine 4y ago
        Some Republican movements have been authoritarian, but an effort to prevent people from saying that which is undesirable is definition authoritarian just as much if not more so. I don't know what example of authoritarianism you would offer as characteristic of the Republican party, but I'm sure you could offer more than one or two. That's because both political parties must push authoritarianism because both must accumulate authoritarian power to stay in the game, lest they be overpowered by the opposing party. While constituents, we the people, agree on most points like personal freedom, individuality, respect of human life, and liberty etc., politicians of both parties, out of necessity, must paint their opponents as the authoritarian regime, set on revoking personal freedom and individuality, and devaluing human life. If you dislike either party, it's not because one is more authoritarian than the other. It's because we lack the mental capacity to retain all the information that makes up the world around us, and must therefore make easier to process, generalizations to survive; Republican, Democrat, grassroots, mainstream, Black, Hispanic, White, etc. And it's obviously no secret that this necessity to generalize is very much exploitable. What you don't like about the Republican party is all the things that are also the Democratic party, but only in a generalized view that the opposing parties' electorate has succeeded to exploit in your mind.
    - fzeroracer 4y ago
      You're posting in a thread about a topic where they're literally trying to do exactly what the GP is saying. I don't know what you view as a 'middle road' given that their starting negotiating point is 'users cannot be banned for any reason ever'.
  - x86_64Ubuntu 4y ago
    >...Can we stop miscategorizing reactionary regressivism as "conservatism" But that is conservatism though. I can't help but see the whole attempt at renaming it "regressivism" is to avoid "conservatism" from taking the fall when people look at it's outcomes. No one that would be "regressive" today was not a conservative yesterday.
    - mindslight 4y ago
      That is not my intent, but I see where you're coming from. Today's reactionaries were conservatives yesterday because that is what the politicians constrained their viewpoint into. To me, the only peacefully-resolving course is to hope there are enough actual conservatives (ie people who respect institutions and want to slow change, and would therefore be against the recent bans on fundamental medical care, the Republican party's disruption of the pandemic response, etc) that will distance themselves from the reactionaries and not continue to blindly vote Republican.
xyzzyz 4y ago
Sorry, can you explain the turnaround to me? What’s the relationship between Citizens United and this?
- woodruffw 4y ago
  Citizens United determined that corporations have some of the same natural rights that people do. In particular, First Amendment right, which in turn means that corporations can do the same politicking (and political funding) that natural persons do. This ruling countermands that: the (implicit) right to not be compelled to speak would seemingly no longer apply to corporations or, more accurately, the people within them. Edit: It's important to note that corporations' rights to moderate their online holdings does not rely on the CU ruling.
  - CamperBob2 4y ago
    Citizens United determined that corporations have some of the same natural rights that people do. In particular, First Amendment right, which in turn means that corporations can do the same politicking (and political funding) that natural persons do. A more charitable way to put this: you don't lose your First Amendment rights just because you joined with other people for commercial or other purposes.
    - woodruffw 4y ago
      That's not charitable, that's obsequious! You have never lost your First Amendment rights in the context of a corporate venture. Citizens United goes substantially beyond affirming that fact: it establishes a separate notion of 1A personhood for the corporation itself.
      - MichaelCollins 4y ago
        > You have never lost your First Amendment rights in the context of a corporate venture Hmm. Technically yeah, but corporations tend to gag their own employees more than the government gags corporations. The corporation can say just about anything it wants about politics and faces no repercussions from the government, but if an employee says the wrong thing about politics, they'll be shitcanned very quickly.
pclmulqdq 4y ago
I'm not so sure, since section 230's safe harbor is involved. If section 230's protections were dropped for social media, I am sure that most courts would adopt the Citizens United standard. However, that would mean a ton of lawsuits for all the defamation and harassment that happens on those platforms.
- bradleyjg 4y ago
  Section 230 is a federal law, it cannot make a state law that would otherwise violate the First Amendment as incorporated into the Fourteenth Amendment somehow okay. That’s not how the relationship between state, federal, and constitutional law works.
  - pclmulqdq 4y ago
    If this court case is over a state law, is Citizens United even precedential? That was a ruling about a federal law, and this appears to be a matter of Texas law, adjudicated with Texas court precedent. I assume it's only in federal court due to diversity jurisdiction.
    - bradleyjg 4y ago
      Both state and federal laws have to comport with the constitutional free speech doctrines. Technically they apply to the federal government via the First Amendment and state governments via the Fourteenth Amendment but for a hundred years now the content of the doctrines have been considered identical when applied to either. Citizens United isn’t directly on point. That was a question of positive corporate speech while this law, if it’s struck down will be struck down under the corporate compelled speech doctrine. But they are both part of the same body of Constitutional law that the federal courts very much have jurisdiction to enforce.
      - torstenvl 4y ago
        > this law, if it’s struck down will be struck down under the corporate compelled speech doctrine That's unlikely, as such an argument is a complete non-starter. If I were arguing against the law, I suspect (shooting from the hip without researching it) that the most fruitful line of reasoning would be that the federal government has preempted the field of interstate communications transmission by a combination of the FCC's organic statute and the CDA. This is a better argument because, despite what some on HN believe, there is a half-century of Supreme Court precedent that compelled hosting is not compelled speech, and because of the doctrine of constitutional avoidance. As an interesting aside, Justice Kagan had some involvement in one of the issues underlying one of the cornerstone cases in this area. Though she was not a party and does not appear to have been among the amici, when she was Dean of Harvard Law School she opposed military recruiting on campus due to the Don't Ask, Don't Tell policy. The Solomon Amendment required non-discrimination in hosting speakers for recruiting purposes, under threat of the loss of federal funding. That compelled hosting was challenged and upheld in Rumsfeld v. FAIR, 390 F. 3d 219 (2006).
lern_too_spel 4y ago
The Federalist Society is very poorly named, with aims nearly diametrically opposed to the Federalists it is named after.
- lern_too_spel 4y ago
  Not too surprised that so many HNers don't know this, so I should have explained better in the previous comment. The Federalist party called for a strong national government to fix all the ills in the previously weak confederation, and they succeeded spectacularly, making the US the most powerful government on Earth instead of a bunch of warring factions making their own treaties, regulations, money, and tariffs. The very first aim of the Federalist Society is "checking federal power."
- LudwigNagasena 4y ago
  It's all about the context. Federalists wanted a stronger government compared to Anti-Federalists who wanted something akin to a confederation. Nowadays the debate is not between federalists and confederalists, that ship has sailed, it is between federalists and unitarists.
majormajor 4y ago
It's a mistake to think of much of the American right as a legal movement or theory vs something more akin to a moral or religious one. Consistency is not the point. The examples of this in the media are the easiest to see: consider the performative outrage and hurt feelings you'll get on a Monday with the grief of how everyone is such a snowflake today on a Tuesday. (EDIT: this is in all likelihood true for every political party everywhere - that in practice not every decision comes down to strict application of some theory - but the American right often makes fairly strong claims to some inherent pureness of principle that cannot be backed up by the facts of their behavior.)
- PKop 4y ago
  >this is in all likelihood true for every political party everywhere Of course it is. And of course consistency is not the point. Hypocrisy is just good politics. "It's bad when you do but good when we do it" is optimal strategy. Check out Schmitt for the "friend/enemy distinction" in politics [0]. All political factions plays this game, this is fundamental to democracy [1]. Holding your opponents to standards and principles you yourself don't follow is how you win. And of course speech rules within social media platforms is fundamentally a political issue. [0] https://youtu.be/0d3aRYlSHDU https://youtu.be/0d3aRYlSHDU "The friend-enemy distinction" [1] https://youtu.be/HqgLlYO4JSo https://youtu.be/HqgLlYO4JSo "Carl Schmitt On the Contradiction Between Parliamentarism and Democracy"

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.
  - mindslight 4y ago
    Rhetoric? I'm making an objective point about the political spectrum. Moldbug labeled his own philosophy as the Reaction, and condemned conservatism as being doomed to perpetual failure because some progressivism inevitably occurs regardless. And it's just plainly nonsensical to label a movement aimed at undermining longstanding institutions as "conservative". As far as synthesis and reconciliation, for a long time I viewed the answer as that of respecting individual liberty. Each party seems to get its constituents excited about a desire for individual freedoms on topics that matter to them, and then transmutes that energy into enacting authoritarian regulations that benefit their commercial sponsors. I had hoped that over time the liberty would be an attractor that gained ever more ground. But the flare up of grassroots authoritarianism, specifically in the Republican party where it has gone mainstream, has shown this was too optimistic. So I'm left hoping that there are enough actual conservatives horrified by these developments that will end up voting for the actually conservative options (which now seems to be mostly in the Democratic party) to keep the off the rails reactionary populism from causing too much damage.
    - trimethylpurine 4y ago
      Some Republican movements have been authoritarian, but an effort to prevent people from saying that which is undesirable is definition authoritarian just as much if not more so. I don't know what example of authoritarianism you would offer as characteristic of the Republican party, but I'm sure you could offer more than one or two. That's because both political parties must push authoritarianism because both must accumulate authoritarian power to stay in the game, lest they be overpowered by the opposing party. While constituents, we the people, agree on most points like personal freedom, individuality, respect of human life, and liberty etc., politicians of both parties, out of necessity, must paint their opponents as the authoritarian regime, set on revoking personal freedom and individuality, and devaluing human life. If you dislike either party, it's not because one is more authoritarian than the other. It's because we lack the mental capacity to retain all the information that makes up the world around us, and must therefore make easier to process, generalizations to survive; Republican, Democrat, grassroots, mainstream, Black, Hispanic, White, etc. And it's obviously no secret that this necessity to generalize is very much exploitable. What you don't like about the Republican party is all the things that are also the Democratic party, but only in a generalized view that the opposing parties' electorate has succeeded to exploit in your mind.
  - fzeroracer 4y ago
    You're posting in a thread about a topic where they're literally trying to do exactly what the GP is saying. I don't know what you view as a 'middle road' given that their starting negotiating point is 'users cannot be banned for any reason ever'.
- x86_64Ubuntu 4y ago
  >...Can we stop miscategorizing reactionary regressivism as "conservatism" But that is conservatism though. I can't help but see the whole attempt at renaming it "regressivism" is to avoid "conservatism" from taking the fall when people look at it's outcomes. No one that would be "regressive" today was not a conservative yesterday.
  - mindslight 4y ago
    That is not my intent, but I see where you're coming from. Today's reactionaries were conservatives yesterday because that is what the politicians constrained their viewpoint into. To me, the only peacefully-resolving course is to hope there are enough actual conservatives (ie people who respect institutions and want to slow change, and would therefore be against the recent bans on fundamental medical care, the Republican party's disruption of the pandemic response, etc) that will distance themselves from the reactionaries and not continue to blindly vote Republican.

xyzzyz 4y ago

Sorry, can you explain the turnaround to me? What’s the relationship between Citizens United and this?

woodruffw 4y ago
Citizens United determined that corporations have some of the same natural rights that people do. In particular, First Amendment right, which in turn means that corporations can do the same politicking (and political funding) that natural persons do. This ruling countermands that: the (implicit) right to not be compelled to speak would seemingly no longer apply to corporations or, more accurately, the people within them. Edit: It's important to note that corporations' rights to moderate their online holdings does not rely on the CU ruling.
- CamperBob2 4y ago
  Citizens United determined that corporations have some of the same natural rights that people do. In particular, First Amendment right, which in turn means that corporations can do the same politicking (and political funding) that natural persons do. A more charitable way to put this: you don't lose your First Amendment rights just because you joined with other people for commercial or other purposes.
  - woodruffw 4y ago
    That's not charitable, that's obsequious! You have never lost your First Amendment rights in the context of a corporate venture. Citizens United goes substantially beyond affirming that fact: it establishes a separate notion of 1A personhood for the corporation itself.
    - MichaelCollins 4y ago
      > You have never lost your First Amendment rights in the context of a corporate venture Hmm. Technically yeah, but corporations tend to gag their own employees more than the government gags corporations. The corporation can say just about anything it wants about politics and faces no repercussions from the government, but if an employee says the wrong thing about politics, they'll be shitcanned very quickly.

pclmulqdq 4y ago

I'm not so sure, since section 230's safe harbor is involved. If section 230's protections were dropped for social media, I am sure that most courts would adopt the Citizens United standard. However, that would mean a ton of lawsuits for all the defamation and harassment that happens on those platforms.

bradleyjg 4y ago
Section 230 is a federal law, it cannot make a state law that would otherwise violate the First Amendment as incorporated into the Fourteenth Amendment somehow okay. That’s not how the relationship between state, federal, and constitutional law works.
- pclmulqdq 4y ago
  If this court case is over a state law, is Citizens United even precedential? That was a ruling about a federal law, and this appears to be a matter of Texas law, adjudicated with Texas court precedent. I assume it's only in federal court due to diversity jurisdiction.
  - bradleyjg 4y ago
    Both state and federal laws have to comport with the constitutional free speech doctrines. Technically they apply to the federal government via the First Amendment and state governments via the Fourteenth Amendment but for a hundred years now the content of the doctrines have been considered identical when applied to either. Citizens United isn’t directly on point. That was a question of positive corporate speech while this law, if it’s struck down will be struck down under the corporate compelled speech doctrine. But they are both part of the same body of Constitutional law that the federal courts very much have jurisdiction to enforce.
    - torstenvl 4y ago
      > this law, if it’s struck down will be struck down under the corporate compelled speech doctrine That's unlikely, as such an argument is a complete non-starter. If I were arguing against the law, I suspect (shooting from the hip without researching it) that the most fruitful line of reasoning would be that the federal government has preempted the field of interstate communications transmission by a combination of the FCC's organic statute and the CDA. This is a better argument because, despite what some on HN believe, there is a half-century of Supreme Court precedent that compelled hosting is not compelled speech, and because of the doctrine of constitutional avoidance. As an interesting aside, Justice Kagan had some involvement in one of the issues underlying one of the cornerstone cases in this area. Though she was not a party and does not appear to have been among the amici, when she was Dean of Harvard Law School she opposed military recruiting on campus due to the Don't Ask, Don't Tell policy. The Solomon Amendment required non-discrimination in hosting speakers for recruiting purposes, under threat of the loss of federal funding. That compelled hosting was challenged and upheld in Rumsfeld v. FAIR, 390 F. 3d 219 (2006).

lern_too_spel 4y ago

The Federalist Society is very poorly named, with aims nearly diametrically opposed to the Federalists it is named after.

lern_too_spel 4y ago
Not too surprised that so many HNers don't know this, so I should have explained better in the previous comment. The Federalist party called for a strong national government to fix all the ills in the previously weak confederation, and they succeeded spectacularly, making the US the most powerful government on Earth instead of a bunch of warring factions making their own treaties, regulations, money, and tariffs. The very first aim of the Federalist Society is "checking federal power."
LudwigNagasena 4y ago
It's all about the context. Federalists wanted a stronger government compared to Anti-Federalists who wanted something akin to a confederation. Nowadays the debate is not between federalists and confederalists, that ship has sailed, it is between federalists and unitarists.

majormajor 4y ago

It's a mistake to think of much of the American right as a legal movement or theory vs something more akin to a moral or religious one. Consistency is not the point. The examples of this in the media are the easiest to see: consider the performative outrage and hurt feelings you'll get on a Monday with the grief of how everyone is such a snowflake today on a Tuesday. (EDIT: this is in all likelihood true for every political party everywhere - that in practice not every decision comes down to strict application of some theory - but the American right often makes fairly strong claims to some inherent pureness of principle that cannot be backed up by the facts of their behavior.)

PKop 4y ago
>this is in all likelihood true for every political party everywhere Of course it is. And of course consistency is not the point. Hypocrisy is just good politics. "It's bad when you do but good when we do it" is optimal strategy. Check out Schmitt for the "friend/enemy distinction" in politics [0]. All political factions plays this game, this is fundamental to democracy [1]. Holding your opponents to standards and principles you yourself don't follow is how you win. And of course speech rules within social media platforms is fundamentally a political issue. [0] https://youtu.be/0d3aRYlSHDU https://youtu.be/0d3aRYlSHDU "The friend-enemy distinction" [1] https://youtu.be/HqgLlYO4JSo https://youtu.be/HqgLlYO4JSo "Carl Schmitt On the Contradiction Between Parliamentarism and Democracy"