5 ms·

"This opinion is badly reasoned so it's not even worth debating" strikes me as a very poor way of engaging in dialectic. I mean, maybe it is poorly written and

"This opinion is badly reasoned so it's not even worth debating" strikes me as a very poor way of engaging in dialectic. I mean, maybe it is poorly written and poorly reasoned, but best to demonstrate that to us, otherwise we're just kind of taking your word for it...

hn_throwaway_99 4y ago
This is the other article that made it to the front page of HN on this topic: https://www.techdirt.com/2022/09/16/5th-circuit-rewrites-a-century-of-1st-amendment-law-to-argue-internet-companies-have-no-right-to-moderate/ https://www.techdirt.com/2022/09/16/5th-circuit-rewrites-a-c... It goes into thorough analysis into why this is such a lazy, stupid decision. This is the quote I agree with: > Frankly, Oldham’s arguments sound much more like the arguments made by ignorant trolls in our comments than anyone with any knowledge or experience with 1st Amendment law. This "judge" is an unqualified political hack.
- catiopatio 4y ago
  > It goes into thorough analysis into why this is such a lazy, stupid decision. The author, Mike Masnick, is a tech blogger — not an attorney, as far as I've been able to determine. Even Eugene Volokh — who is both an actual attorney and uniquely qualified to weigh in here — didn't attempt to digest the 113 pages of the opinion, much less immediately produce a reasoned analysis. I'm sure one will be forthcoming. The quote you cited from Masnick certainly isn't legal analysis. It's empty invective, as are statements like "This "judge" is an unqualified political hack".
  - mhneu 4y ago
    Volokh is a conservative attorney who is intellectually aligned with the 5th circuit judges who wrote this opinion. A few other sources: - Lawrence Tribe, a very senior center-left constitutional lawyer and Harvard prof: https://twitter.com/tribelaw/status/1562951505451266050 https://twitter.com/tribelaw/status/1562951505451266050 "A disgraceful Fifth Circuit decision" - Reporters' Committee on Freedom of the Press (a deeply centrist/neutral organization) https://twitter.com/katie_rcfp/status/1570897188359909377 https://twitter.com/katie_rcfp/status/1570897188359909377 "Just finished reading the 5th Circuit’s decision in the NetChoice v. Paxton case and it’s . . . not good. To say the First Amendment analysis is deeply flawed would be an understatement." - Orin Kerr, a conservative attorney who's also been a Federalist Society backer: https://twitter.com/OrinKerr/status/1570900354061180929 https://twitter.com/OrinKerr/status/1570900354061180929 "I am old-fashioned, but I would think that inferior courts start with what the Supreme Court has said the text means." (I did a quick search and found three sources that span the ideological spectrum, which show how widespread the negativity about this decision has been.) This is a terribly-reasoned decision that doesn't make much legal sense. It's an ideological decision, motivated by the feeling that rightwing voices, which are actually boosted by the rich people that own social media, are instead, against all sense, suppressed.
    - catiopatio 4y ago
      > Volokh is a conservative attorney who is intellectually aligned with the 5th circuit judges who wrote this opinion. Volokh is the Gary T. Schwartz Distinguished Professor of Law at UCLA, uniquely qualified to weigh in on first amendment law, wrote a column on first amendment and speech issues for the Washington Post for years, and frankly, I imagine would be pretty disappointed (but not surprised, in these illiberal times), to be written off as a “conservative attorney” when he’s consistently espoused libertarian views over the decades. On top of which, he hasn’t actually weighed in on this ruling yet, and may very well take umbrage with the decision! His blog at reason did, in fact, post a guest article arguing that the ruling falls afoul of the takings clause. > Orin Kerr, a conservative attorney and notable Federalist Society backer You just disqualified Volokh for being a “conservative attorney”. Now you’re citing a conservative attorney whose opinion suits your argument? That’s not arguing logically or in good faith, even putting aside the fact that your claims regarding Volokh are a fabrication.
      - haswell 4y ago
        The way I read the parent comment, they dismissed Volokh for stated reasons, but then provided three other sources to bolster the idea that early analysis is generally all against this ruling. They mentioned they cited sources across the ideological spectrum. In theory, that's good. It sounds like the primary issue here is mischaracterization of Volokh, but that doesn't necessarily change or invalidate the other sources mentioned.
        catiopatio 4y ago
        My primary issue is that (1) these replies are rebutting imagined arguments that neither I (nor Volokh, for that matter) have actually made, and (2) in the fervor to rebut these strawmen, Volokh was grossly mischaracterized.
        Steko 4y ago
        Speaking of 'grossly mischaracterizing' Volokh, why do you think he is "uniquely qualified" to weigh in here? Is it because your views usually align with his? He seems no more qualified than the sources mhneu provided. This decision has been soundly roasted across the spectrum.
  - zimpenfish 4y ago
    Noted 1st amendment lawyer Ken White (@popehat) said "It really is the most angrily incoherent First Amendment decision I think I’ve ever read."[1] [1] https://twitter.com/Popehat/status/1570889517221158912 https://twitter.com/Popehat/status/1570889517221158912
- eduction 4y ago
  What do you think the most convincing part of that techdirt piece is? To me it mostly reads like an exasperated emotional rant. He calls the ruling “stupid” and “batshit crazy” and likens the judges to “ignorant trolls.” And uses italics everywhere. It’s not exactly an appeal to reason. To me the one interesting bit was this: “ The websites do engage in editorial control. The difference from newspapers is that it’s ex post control. If there are complaints, they will review the content afterwards to see if it matches with their editorial policies (i.e., terms of use).” I mean, I disagree — terms of use of a tech platform are miles away from an actual editorial opinion, they are bloodless legal documents and virtually impossible to read for pleasure, unlike actual editorial - but at least this engages with the decision on the merits. I’d encourage anyone to read the actual decision, it (and the dissent) are more interesting reading than this. (And unlike at TechDirt the citations don’t approvingly quote someone named “Wonton Killing Hat”). https://www.ca5.uscourts.gov/opinions/pub/21/21-51178-CV1.pdf https://www.ca5.uscourts.gov/opinions/pub/21/21-51178-CV1.pd...
  - hn_throwaway_99 4y ago
    That article quotes the opinion at length, and I think does a good job of pointing out how bad the opinion is on its face. For example, just look at the section where the opinion argues that the platform is bringing up "hypotheticals" it talking about curbing pro-Nazi or terrorist posts. I kept re-reading the quoted opinion again and again thinking "Is this judge a complete idiot?" To be clear, I'm not basing this on the commentary from the article's author (though I agree with him). But trying to argue that pro-Nazi and terrorist speech on tech platforms are "hypotheticals" makes me wonder if this judge has ever seen the Internet.
    - catiopatio 4y ago
      “Hypothetical”, in this legal context, is used to describe an assumption of facts to be used to test a logical proposition or legal consequences under those assumed facts. The judge’s use of the term “hypothetical” was correct, and does not represent an assertion, one way or the other, about whether “pro-Nazi and terrorist speech” does or does not exist on these platforms.
joe_the_user 4y ago
"This opinion is badly reasoned so it's not even worth debating" strikes me as a very poor way of engaging in dialectic. It's not a way of engaging in dialectic/dialogue. It's saying it's so bad you won't engage in dialogue. That's a legitimate position in some circumstances. That this is a court decision, however, might mean that in these circumstance one does need to directly challenge despite it's qualities.
- catiopatio 4y ago
  > That's a legitimate position in some circumstances. If someone doesn't want to discuss a topic, all they have to do is not discuss the topic. Expressing such a position isn't a legitimate contribution to public discourse; it's a tactic that inhibits the process of building mutual understanding through discourse.
  - xwowsersx 4y ago
    Exactly. That's my point. It is true that sometimes an idea is too stupid to even deserve a reply. But simply stating here that 'this is so dumb, I'm not going to respond to it' doesn't contribute anything nor is it in line with the spirit of HN, per https://news.ycombinator.com/newsguidelines.html https://news.ycombinator.com/newsguidelines.html
    - joe_the_user 4y ago
      The problem with what you're advocating every idea or comment either have a reasonably in-depth response or none at all. That reduces the poster's toolbox and lets the naive observer think the fundamentally unsupportable ideas might not be being noticed. A reply that says "this is obviously wrong" may seem contentless but it's just "minimal content". You should be able to respond like this for the same reason you should be able to down vote things without comment. It's like a professor giving comment on an exam. Some questions they will just mark wrong, some they might write "makes no sense" to get the person thinking or clarifying and others they'd go into detail with.

hn_throwaway_99 4y ago

This is the other article that made it to the front page of HN on this topic: https://www.techdirt.com/2022/09/16/5th-circuit-rewrites-a-century-of-1st-amendment-law-to-argue-internet-companies-have-no-right-to-moderate/ https://www.techdirt.com/2022/09/16/5th-circuit-rewrites-a-c... It goes into thorough analysis into why this is such a lazy, stupid decision. This is the quote I agree with: > Frankly, Oldham’s arguments sound much more like the arguments made by ignorant trolls in our comments than anyone with any knowledge or experience with 1st Amendment law. This "judge" is an unqualified political hack.

catiopatio 4y ago
> It goes into thorough analysis into why this is such a lazy, stupid decision. The author, Mike Masnick, is a tech blogger — not an attorney, as far as I've been able to determine. Even Eugene Volokh — who is both an actual attorney and uniquely qualified to weigh in here — didn't attempt to digest the 113 pages of the opinion, much less immediately produce a reasoned analysis. I'm sure one will be forthcoming. The quote you cited from Masnick certainly isn't legal analysis. It's empty invective, as are statements like "This "judge" is an unqualified political hack".
- mhneu 4y ago
  Volokh is a conservative attorney who is intellectually aligned with the 5th circuit judges who wrote this opinion. A few other sources: - Lawrence Tribe, a very senior center-left constitutional lawyer and Harvard prof: https://twitter.com/tribelaw/status/1562951505451266050 https://twitter.com/tribelaw/status/1562951505451266050 "A disgraceful Fifth Circuit decision" - Reporters' Committee on Freedom of the Press (a deeply centrist/neutral organization) https://twitter.com/katie_rcfp/status/1570897188359909377 https://twitter.com/katie_rcfp/status/1570897188359909377 "Just finished reading the 5th Circuit’s decision in the NetChoice v. Paxton case and it’s . . . not good. To say the First Amendment analysis is deeply flawed would be an understatement." - Orin Kerr, a conservative attorney who's also been a Federalist Society backer: https://twitter.com/OrinKerr/status/1570900354061180929 https://twitter.com/OrinKerr/status/1570900354061180929 "I am old-fashioned, but I would think that inferior courts start with what the Supreme Court has said the text means." (I did a quick search and found three sources that span the ideological spectrum, which show how widespread the negativity about this decision has been.) This is a terribly-reasoned decision that doesn't make much legal sense. It's an ideological decision, motivated by the feeling that rightwing voices, which are actually boosted by the rich people that own social media, are instead, against all sense, suppressed.
  - catiopatio 4y ago
    > Volokh is a conservative attorney who is intellectually aligned with the 5th circuit judges who wrote this opinion. Volokh is the Gary T. Schwartz Distinguished Professor of Law at UCLA, uniquely qualified to weigh in on first amendment law, wrote a column on first amendment and speech issues for the Washington Post for years, and frankly, I imagine would be pretty disappointed (but not surprised, in these illiberal times), to be written off as a “conservative attorney” when he’s consistently espoused libertarian views over the decades. On top of which, he hasn’t actually weighed in on this ruling yet, and may very well take umbrage with the decision! His blog at reason did, in fact, post a guest article arguing that the ruling falls afoul of the takings clause. > Orin Kerr, a conservative attorney and notable Federalist Society backer You just disqualified Volokh for being a “conservative attorney”. Now you’re citing a conservative attorney whose opinion suits your argument? That’s not arguing logically or in good faith, even putting aside the fact that your claims regarding Volokh are a fabrication.
    - haswell 4y ago
      The way I read the parent comment, they dismissed Volokh for stated reasons, but then provided three other sources to bolster the idea that early analysis is generally all against this ruling. They mentioned they cited sources across the ideological spectrum. In theory, that's good. It sounds like the primary issue here is mischaracterization of Volokh, but that doesn't necessarily change or invalidate the other sources mentioned.
      - catiopatio 4y ago
        My primary issue is that (1) these replies are rebutting imagined arguments that neither I (nor Volokh, for that matter) have actually made, and (2) in the fervor to rebut these strawmen, Volokh was grossly mischaracterized.
        Steko 4y ago
        Speaking of 'grossly mischaracterizing' Volokh, why do you think he is "uniquely qualified" to weigh in here? Is it because your views usually align with his? He seems no more qualified than the sources mhneu provided. This decision has been soundly roasted across the spectrum.
- zimpenfish 4y ago
  Noted 1st amendment lawyer Ken White (@popehat) said "It really is the most angrily incoherent First Amendment decision I think I’ve ever read."[1] [1] https://twitter.com/Popehat/status/1570889517221158912 https://twitter.com/Popehat/status/1570889517221158912
eduction 4y ago
What do you think the most convincing part of that techdirt piece is? To me it mostly reads like an exasperated emotional rant. He calls the ruling “stupid” and “batshit crazy” and likens the judges to “ignorant trolls.” And uses italics everywhere. It’s not exactly an appeal to reason. To me the one interesting bit was this: “ The websites do engage in editorial control. The difference from newspapers is that it’s ex post control. If there are complaints, they will review the content afterwards to see if it matches with their editorial policies (i.e., terms of use).” I mean, I disagree — terms of use of a tech platform are miles away from an actual editorial opinion, they are bloodless legal documents and virtually impossible to read for pleasure, unlike actual editorial - but at least this engages with the decision on the merits. I’d encourage anyone to read the actual decision, it (and the dissent) are more interesting reading than this. (And unlike at TechDirt the citations don’t approvingly quote someone named “Wonton Killing Hat”). https://www.ca5.uscourts.gov/opinions/pub/21/21-51178-CV1.pdf https://www.ca5.uscourts.gov/opinions/pub/21/21-51178-CV1.pd...
- hn_throwaway_99 4y ago
  That article quotes the opinion at length, and I think does a good job of pointing out how bad the opinion is on its face. For example, just look at the section where the opinion argues that the platform is bringing up "hypotheticals" it talking about curbing pro-Nazi or terrorist posts. I kept re-reading the quoted opinion again and again thinking "Is this judge a complete idiot?" To be clear, I'm not basing this on the commentary from the article's author (though I agree with him). But trying to argue that pro-Nazi and terrorist speech on tech platforms are "hypotheticals" makes me wonder if this judge has ever seen the Internet.
  - catiopatio 4y ago
    “Hypothetical”, in this legal context, is used to describe an assumption of facts to be used to test a logical proposition or legal consequences under those assumed facts. The judge’s use of the term “hypothetical” was correct, and does not represent an assertion, one way or the other, about whether “pro-Nazi and terrorist speech” does or does not exist on these platforms.

joe_the_user 4y ago

"This opinion is badly reasoned so it's not even worth debating" strikes me as a very poor way of engaging in dialectic. It's not a way of engaging in dialectic/dialogue. It's saying it's so bad you won't engage in dialogue. That's a legitimate position in some circumstances. That this is a court decision, however, might mean that in these circumstance one does need to directly challenge despite it's qualities.

catiopatio 4y ago
> That's a legitimate position in some circumstances. If someone doesn't want to discuss a topic, all they have to do is not discuss the topic. Expressing such a position isn't a legitimate contribution to public discourse; it's a tactic that inhibits the process of building mutual understanding through discourse.
- xwowsersx 4y ago
  Exactly. That's my point. It is true that sometimes an idea is too stupid to even deserve a reply. But simply stating here that 'this is so dumb, I'm not going to respond to it' doesn't contribute anything nor is it in line with the spirit of HN, per https://news.ycombinator.com/newsguidelines.html https://news.ycombinator.com/newsguidelines.html
  - joe_the_user 4y ago
    The problem with what you're advocating every idea or comment either have a reasonably in-depth response or none at all. That reduces the poster's toolbox and lets the naive observer think the fundamentally unsupportable ideas might not be being noticed. A reply that says "this is obviously wrong" may seem contentless but it's just "minimal content". You should be able to respond like this for the same reason you should be able to down vote things without comment. It's like a professor giving comment on an exam. Some questions they will just mark wrong, some they might write "makes no sense" to get the person thinking or clarifying and others they'd go into detail with.