4 ms·

The bill of rights is a list of restrictions on the government i.e., laws the governments must follow.

delfinom 3y ago
The California law only mandates reporting how decisions are made, it does not do anything to how the company makes those decisions. If companies can now argue that complying with a law is against free speech, they can literally ignore all laws.
Zigurd 3y ago
Commercial speech is regulated. That might not make a lot of sense in a time when "money is speech." But that's not a problem the people created.
- perihelions 3y ago
  If Twitter solicits you to purchase Twitter Blue, that's Commercial Speech. If Twitter bans your account for praising Hitler, that's [Twitter exercising] political speech: Twitter would be protected by the First Amendment. The mere fact Twitter is a commercial, monetized service doesn't trigger a Twitter-wide First Amendment exception—any more than, say, the New York Times being a for-profit corporation opens the door for the feds to censor its political columns. Even if they're behind a paywall. Commercial Speech is a narrow carve-out for "advertisements and solicitations". It's not applicable to Twitter moderation.
  - Zigurd 3y ago
    There is a good argument that company policies about product use is commercial speech. "Here take this opioid, we have funded studies that say it won't hurt you" got regulated pretty hard. "We think the 'woke mind virus' is worse than capital-F Fascism and will moderate that way" is very much about Twitter's product.
    - perihelions 3y ago
      Anything about "woke" and "fascism" is constitutionally protected political speech. This is an easy call.
  - PeterisP 3y ago
    Sure, but Twitter banning (or not banning) your account for praising Hitler is political speech, however, Twitter stating "we are/aren't a platform for free speech" or "our moderation will/won't ban your account for praising Hitler" is commercial speech similar to it soliciting you to purchase Twitter blue, it's a statement about the media service they're offering as part of their business, and that's something that can be reasonably compelled. The law does not make any requests about how Twitter should moderate things, it asks for information about how Twitter does moderate things. First amendment protection should ensure that government is prohibited to impose restrictions if a company says they will/won't ban accounts for praising Hitler, however, the people certainly have the right to take action in response to that, and the government has the right to compel Twitter to disclose to these people truthful information about their media product. If they have a policy document stating "posts which contain more than three letters 'z' shall be deleted", they have a right to moderate this way if they wish - however, do they have a constitutional right to keep that policy document secret from the public? The way I see it, laws are permitted to regulate the disclosure of company policies.
dabraham1248 3y ago
Umm, the bill of rights is a set of restrictions on the _federal_ government. The last one is explicitly a statement that the states can do a lot of things that the federal government _can't_. There is the supremacy clause, but goodness knows where that would end up here. _Everything_ involving real money or power seems to make it to the supreme court these days, and who knows what the political landscape will look like by the time it does (yes, I am asserting that the supreme court has become more political than it used to be, _and_ that it used to be pretty political...).
- sseagull 3y ago
  > Umm, the bill of rights is a set of restrictions on the _federal_ government. The last one is explicitly a statement that the states can do a lot of things that the federal government _can't_. Taken literally, yes. But legally, many (but not all) for the rights have been 'incorporated' to apply to the states. This includes First Amendment. https://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights https://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_R...
- pdonis 3y ago
  > the bill of rights is a set of restrictions on the _federal_ government The First Amendment as it is literally worded is, since it specifically says "Congress shall make no law...". But the rest of the amendments have no such restriction; they just say certain things shall not be done, period. Given the Supremacy Clause, that means those provisions should apply to all levels of government, not just federal. (Granted, the courts originally did not interpret them that way, but IMO they should have.) That said, current jurisprudence, regardless of the literal wording of the bill of rights, is that they apply to the States, even the First Amendment. IIRC most Supreme Court decisions along these lines have cited the Fourteenth Amendment.
- afthonos 3y ago
  The bill of rights was extended to the states via the privileges and immunities clause if the 14th amendment.
- Turing_Machine 3y ago

The California law only mandates reporting how decisions are made, it does not do anything to how the company makes those decisions. If companies can now argue that complying with a law is against free speech, they can literally ignore all laws.

Zigurd 3y ago

Commercial speech is regulated. That might not make a lot of sense in a time when "money is speech." But that's not a problem the people created.

perihelions 3y ago
If Twitter solicits you to purchase Twitter Blue, that's Commercial Speech. If Twitter bans your account for praising Hitler, that's [Twitter exercising] political speech: Twitter would be protected by the First Amendment. The mere fact Twitter is a commercial, monetized service doesn't trigger a Twitter-wide First Amendment exception—any more than, say, the New York Times being a for-profit corporation opens the door for the feds to censor its political columns. Even if they're behind a paywall. Commercial Speech is a narrow carve-out for "advertisements and solicitations". It's not applicable to Twitter moderation.
- Zigurd 3y ago
  There is a good argument that company policies about product use is commercial speech. "Here take this opioid, we have funded studies that say it won't hurt you" got regulated pretty hard. "We think the 'woke mind virus' is worse than capital-F Fascism and will moderate that way" is very much about Twitter's product.
  - perihelions 3y ago
    Anything about "woke" and "fascism" is constitutionally protected political speech. This is an easy call.
- PeterisP 3y ago
  Sure, but Twitter banning (or not banning) your account for praising Hitler is political speech, however, Twitter stating "we are/aren't a platform for free speech" or "our moderation will/won't ban your account for praising Hitler" is commercial speech similar to it soliciting you to purchase Twitter blue, it's a statement about the media service they're offering as part of their business, and that's something that can be reasonably compelled. The law does not make any requests about how Twitter should moderate things, it asks for information about how Twitter does moderate things. First amendment protection should ensure that government is prohibited to impose restrictions if a company says they will/won't ban accounts for praising Hitler, however, the people certainly have the right to take action in response to that, and the government has the right to compel Twitter to disclose to these people truthful information about their media product. If they have a policy document stating "posts which contain more than three letters 'z' shall be deleted", they have a right to moderate this way if they wish - however, do they have a constitutional right to keep that policy document secret from the public? The way I see it, laws are permitted to regulate the disclosure of company policies.

dabraham1248 3y ago

Umm, the bill of rights is a set of restrictions on the _federal_ government. The last one is explicitly a statement that the states can do a lot of things that the federal government _can't_. There is the supremacy clause, but goodness knows where that would end up here. _Everything_ involving real money or power seems to make it to the supreme court these days, and who knows what the political landscape will look like by the time it does (yes, I am asserting that the supreme court has become more political than it used to be, _and_ that it used to be pretty political...).

sseagull 3y ago
> Umm, the bill of rights is a set of restrictions on the _federal_ government. The last one is explicitly a statement that the states can do a lot of things that the federal government _can't_. Taken literally, yes. But legally, many (but not all) for the rights have been 'incorporated' to apply to the states. This includes First Amendment. https://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights https://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_R...
pdonis 3y ago
> the bill of rights is a set of restrictions on the _federal_ government The First Amendment as it is literally worded is, since it specifically says "Congress shall make no law...". But the rest of the amendments have no such restriction; they just say certain things shall not be done, period. Given the Supremacy Clause, that means those provisions should apply to all levels of government, not just federal. (Granted, the courts originally did not interpret them that way, but IMO they should have.) That said, current jurisprudence, regardless of the literal wording of the bill of rights, is that they apply to the States, even the First Amendment. IIRC most Supreme Court decisions along these lines have cited the Fourteenth Amendment.
afthonos 3y ago
The bill of rights was extended to the states via the privileges and immunities clause if the 14th amendment.
Turing_Machine 3y ago