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SCOTUS also ruled that the 1st Amendment allows compelling a mall (a private entity) to host petitioners, which is strikingly similar to this case: https://en.w

SCOTUS also ruled that the 1st Amendment allows compelling a mall (a private entity) to host petitioners, which is strikingly similar to this case: https://en.wikipedia.org/wiki/Pruneyard_Shopping_Center_v._Robins https://en.wikipedia.org/wiki/Pruneyard_Shopping_Center_v._R... And we were happy to throw freedom of association under the bus to enforce civil rights.

jcranmer 4y ago
Pruneyard is not relevant. There are three things that distinguish Pruneyard: 1. Pruneyard relied on a provision of the California state constitution. That provision is not in Texas's state constitution. 2. It was admitted by all parties that the petitioners were not disruptive to other people in the mall, and that nondisruption is central to why compelling the mall to host them was permissible. However, note that moderation frequently (I might even hazard inevitably) centers on activities that are ultimately disruptive to other consumers. 3. It was also admitted that no one would believe that the mall's hosting of the petitioners was not going to be seen as an endorsement of their beliefs, so it had no effect on the speech of the owner of the mall. This is the complete opposite of how it applies to social media: the tone, candor, and content of social media is central to the popular impression of the social media site, and therefore denying the operators the right to shape the content on their site necessarily is a restriction on their speech. This is something that has been picked up correctly by every court to consider the application of Pruneyard to social media, well, every court except the Fifth Circuit, which appears to have decided that the rule of law is overrated and calvinball is a preferable state of affairs.
- tarakat 4y ago
  1. As I understand it, state constitutions are subordinate to the US constitution. In case of a conflict, the US constitution prevails. 2. "Disruption" is highly subjective. On one end of the scale is spam, on the other end is political speech that platforms declare is "harmful". Do you think the mall in question could get away with booting the petitioners, as long as they could provide some vague reasoning to how their stated politics lead to "harm"? 3. You move from "endorsement" to "tone", I suspect because you realize no-one in their right mind believes Meta "endorses" every post on Facebook. But the point is valid - the tone of social media is more central to their business than the tone of a shopping mall. But what tone can a platform's billion+ users claim to share? And should their desire to shape a tone, at that scale, supersede their users free speech interest?
- throwaway09223 4y ago
  1. Pruneyard relied on a provision of the California state constitution. That provision is not in Texas's state constitution. This is simply not true. Both Texas and California have very similar Constitutional provisions. California on speech: Article 1 sec 2: Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press. Texas on speech: Article 1 sec 8: FREEDOM OF SPEECH AND PRESS; LIBEL. Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press. California on redress: Article 1 Sec 3: The people have the right to instruct their representatives, petition government for redress of grievances, and assemble freely to consult for the common good. Texas on redress: Article 1 Sec 27: RIGHT OF ASSEMBLY; PETITION FOR REDRESS OF GRIEVANCES. The citizens shall have the right, in a peaceable manner, to assemble together for their common good; and apply to those invested with the powers of government for redress of grievances or other purposes, by petition, address or remonstrance.

jcranmer 4y ago

Pruneyard is not relevant. There are three things that distinguish Pruneyard: 1. Pruneyard relied on a provision of the California state constitution. That provision is not in Texas's state constitution. 2. It was admitted by all parties that the petitioners were not disruptive to other people in the mall, and that nondisruption is central to why compelling the mall to host them was permissible. However, note that moderation frequently (I might even hazard inevitably) centers on activities that are ultimately disruptive to other consumers. 3. It was also admitted that no one would believe that the mall's hosting of the petitioners was not going to be seen as an endorsement of their beliefs, so it had no effect on the speech of the owner of the mall. This is the complete opposite of how it applies to social media: the tone, candor, and content of social media is central to the popular impression of the social media site, and therefore denying the operators the right to shape the content on their site necessarily is a restriction on their speech. This is something that has been picked up correctly by every court to consider the application of Pruneyard to social media, well, every court except the Fifth Circuit, which appears to have decided that the rule of law is overrated and calvinball is a preferable state of affairs.

tarakat 4y ago
1. As I understand it, state constitutions are subordinate to the US constitution. In case of a conflict, the US constitution prevails. 2. "Disruption" is highly subjective. On one end of the scale is spam, on the other end is political speech that platforms declare is "harmful". Do you think the mall in question could get away with booting the petitioners, as long as they could provide some vague reasoning to how their stated politics lead to "harm"? 3. You move from "endorsement" to "tone", I suspect because you realize no-one in their right mind believes Meta "endorses" every post on Facebook. But the point is valid - the tone of social media is more central to their business than the tone of a shopping mall. But what tone can a platform's billion+ users claim to share? And should their desire to shape a tone, at that scale, supersede their users free speech interest?
throwaway09223 4y ago
1. Pruneyard relied on a provision of the California state constitution. That provision is not in Texas's state constitution. This is simply not true. Both Texas and California have very similar Constitutional provisions. California on speech: Article 1 sec 2: Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press. Texas on speech: Article 1 sec 8: FREEDOM OF SPEECH AND PRESS; LIBEL. Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press. California on redress: Article 1 Sec 3: The people have the right to instruct their representatives, petition government for redress of grievances, and assemble freely to consult for the common good. Texas on redress: Article 1 Sec 27: RIGHT OF ASSEMBLY; PETITION FOR REDRESS OF GRIEVANCES. The citizens shall have the right, in a peaceable manner, to assemble together for their common good; and apply to those invested with the powers of government for redress of grievances or other purposes, by petition, address or remonstrance.