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US Supreme Court throws out rulings on state laws regulating social media

55 points by japhyr 2y ago

itishappy 2y ago
https://archive.is/pcC0N https://archive.is/pcC0N
9cb14c1ec0 2y ago
> Because this is “a court of review, not of first view,” Cutter v. Wil- kinson, 544 U. S. 709, 718, n. 7, this Court cannot undertake the needed inquiries. And because neither the Eleventh nor the Fifth Cir- cuit performed the facial analysis in the way described above, their decisions must be vacated and the cases remanded. Pp. 9–12. Big nothing-burger here. As I see it, this means it could be years yet before a real Supreme Court decision comes down.
- dylan604 2y ago
  so why did the court even accept to hear the case? I thought there were other mechanisms to tell the case it had no standing before the court. yes, it will probably take years to get a case with actual standing, but you know there are people itching to offend a state's law specifically to take bring it before SCOTUS. this one was just a bit premature.
  - ARandomerDude 2y ago
    As I read it, the decision wasn't just "we refuse to decide your case." It was "lower courts, you should not have ruled the way you did because you didn't consider all the relevant facts. Go do your homework then decide the case, not the other way around." The lower court rulings were vacated (struck down) because they didn't consider the full scope of the relevant law. IANAL. https://www.supremecourt.gov/opinions/23pdf/22-277_d18f.pdf https://www.supremecourt.gov/opinions/23pdf/22-277_d18f.pdf
  - AnimalMuppet 2y ago
    > so why did the court even accept to hear the case? Because the Fifth District and the Ninth (?) District decided their respective cases in different ways. The Supreme Court often deals with cases where district courts are doing different things with the same area of law.
    - jcranmer 2y ago
      Fifth and Eleventh Circuits. The districts are the actual courts at the lowest level; the circuits are the way they're organized into appeals courts.
- AnimalMuppet 2y ago
  Not quite nothing. It means that the laws don't go into effect now. They won't for years, if ever.
- legitster 2y ago
  If you look at the court documents, they provide a litany of reasons the case had no merit and also that the circuit courts were in the wrong. The core principles of content moderation and editorial review being protected free speech are pretty strongly worded throughout the decision.
- dwallin 2y ago
  You are missing the key bit right after that where they basically scolded the 5th circuit for not having a basic understanding of free speech. They then proceeded to outline in detail why said analysis should almost certainly lead to the law failing to pass constitutional muster. This was not the Supreme Court throwing up their hands, this was the Supreme Court saying "This is basic stuff you shouldn't be getting wrong, try it again." > It is necessary to say more about how the First Amendment relates to the laws’ content-moderation provisions, to ensure that the facial analysis proceeds on the right path in the courts below. That need is especially stark for the Fifth Circuit, whose decision rested on a serious misunderstanding of First Amendment precedent and principle.
  - red-iron-pine 2y ago
    sounds to me like the Fifth Circuit saw how the wind was blowing and didn't want to make a call least they upset The Powers That Be. Plus the 5th is based out of Texas and getting appointed there usually means getting alignment with the locals.
colechristensen 2y ago
>The justices directed lower appeals courts to reconsider their decisions regarding these 2021 laws authorizing the states to regulate the content-moderation practices of large social media platforms. Tech industry trade groups challenged the two laws under the U.S. Constitution's First Amendment limits on the government's ability to restrict speech.
calibas 2y ago
It's interesting how fast political ideology goes out the window. Here we have the Republicans fighting for increased government regulation of private businesses, while Democrats are arguing it's unconstitutional and violates "free speech".
- balls187 2y ago
  Rather, in the US, politics is mostly based on keeping yourself elected, and political ideologies are pretty much lip service. In reality, both sides all just serve at the pleasure of the elite. What I love about Trump (despite never having a desire to votefor him) is he makes no attempt to hide that, often times going so far as to rub the political class' noses in it.
  - lallysingh 2y ago
    Yes, this. Ideologies follow demographics of likely voters, that's it. They're the worm on the hook, not the objective.
  - maxwell 2y ago
    Not at all—more lucrative to say what people want to hear, raise a bunch of money, and lose, than it is to get in office and need to violate your campaign promises to appease the donors with steering influence. https://www.nbcnews.com/meet-the-press/meetthepressblog/s-happens-candidates-leftover-money-rcna57340 https://www.nbcnews.com/meet-the-press/meetthepressblog/s-ha...
  - netsharc 2y ago
    > he makes no attempt to hide that Does he not? His speeches promise a "great America again!" to the conned masses, when the reality it's "Put me back into power so I can stay out of jail, and grift, for another 4 years at least.". It would be interesting if one could put an actual "what I actually want" translator next to Trump like in this sketch: https://www.youtube.com/watch?v=HkAK9QRe4ds https://www.youtube.com/watch?v=HkAK9QRe4ds .. not that the conned masses would hear it and get a "Wow! He's a conman!" moment; they've projected onto him their hopes, dreams, and the idea that he will be the one to avenge their angers. (BTW In Obama's post-presidential book he lamented about the same thing in 2008, that his voters were placing their hopes of all sorts of change on him, and that his campaign/supporters were inadvertendly creating cult-of-personality around him.)
ARandomerDude 2y ago
https://www.supremecourt.gov/opinions/23pdf/22-277_d18f.pdf https://www.supremecourt.gov/opinions/23pdf/22-277_d18f.pdf
jmyeet 2y ago
Some context: 1. The Fedearl court system is divided into circuits [1]. These circuits can be (and are) organized differently to each other. They generally are divided into Districts (eg the Southern or Eastern District of NY) and may be further divided into divisions, usually with the idea that a person bringing a suit is relatively geographically close to the court. This unfortunately is the basis for "judge shopping" where you basically know what judge you'll get if you file in a certain area; 2. Florida is in the 11th Circuit. Texas is in the 5th Circuit; 3. The Circuits tend to reflect the politics of their constitutent states thanks to the Blue Slip system [2]. So to appoint a Texas judge, you need essentially a sponsor in a US senator from Texas. The politics will tend to align; 4. Circuits are divided into Distrct Courts and Appellate Courts (ignoring magistrate judges for now). A decision by a Federal district court is not binding to any other court. If a ruling is appealed it goes to that circuit's appellate court. Whatever that appellate court rules is binding to that circuit; 5. There are 9 Supreme Court ("SCOTUS") justices. SCOTUS has absolute discretion in deciding what cases to take. It requires 4 of the justices deciding to take any case. This can be (and has) done strategically, specifically to take or avoid taking a case when a particularly ideological block of the court feels they'll get a decision they do or do not want. The court is, and always has been, political. 6. One way to force SCOTUS's hand is if different circuit appellate courts rule differently on the same fundamental issue. That's basically what happened here between the 5th and 11th Circuits. Both Texas and Florida had passed differnet laws against censoring or "deplatforming" political candidates in the wake of, for example, former President Trump being banned from Twitter in the wake of Jan 6. The court said, essentially unanimously, that neither circuit had considered the First Amendment argument against these laws, which is actually pretty wild. It's worth adding that the First Amendment (like the entire Constitution) is a restriction of government actions. If this wasn't clear enough, the first five words of the First Amendment are, quite literally: > Congress shall make no law ... It's worth adding that the 14th Amendment later extended restrictions on government actions to state and local governments. Both the Texas and Florida laws should've failed immediately on First Amendment grounds. SCOTUS simply sent the cases back to the respective courts to consider this issue. I suspect we'll see these cases again as one or both of these courts will do mental contortions to decide that these laws have no First Amendment issue. [1]: https://www.uscourts.gov/sites/default/files/u.s._federal_courts_circuit_map_1.pdf https://www.uscourts.gov/sites/default/files/u.s._federal_co... [2]: https://en.wikipedia.org/wiki/Blue_slip_(U.S._Senate) https://en.wikipedia.org/wiki/Blue_slip_(U.S._Senate)
jauntywundrkind 2y ago
Wow, what a slam. Go back & analyze not just the specific case at hand, but generate a complete analysis of who these laws would apply to, in which circumstances, and the constitutionality of all. I feel like it's submitting your homework & being told you need to go do a thesis on the topic to get credit. There's some very promising guidance too. Recognizing that there is a right to expression, that these platforms aren't magically stripped of their expression rights because they host huge volumes or because they don't themselves post kneecaps the rock out of some very strong absurd censorship complainers. > States (and their citizens) are of course right to want an expressive realm in which the public has access to a wide range of views. But the way the First Amendment achieves that goal is by preventing the government from "tilt[ing] public debate in a preferred direction" Including forcing companies to achieve that preferred balance for them. Surprisingly promising start. I started in on the opinions but man these are long; interested to see how the various judges tackle this.
- legitster 2y ago
  I don't actually know if there is a lot here to grapple with. The justices are just affirming a pretty obvious and core principle of the First Amendment.
legitster 2y ago
> Texas has never been shy, and always been consistent, about its interest: The objective is to correct the mix of viewpoints that major platforms present. But a State may not interfere with private actors’ speech to advance its own vision of ideological balance. States (and their citizens) are of course right to want an expressive realm in which the public has access to a wide range of views. But the way the First Amendment achieves that goal is by preventing the government from “tilt[ing] public debate in a preferred direction,not by licensing the government to stop private actors from speaking as they wish and preferring some views over others. A State cannot prohibit speech to rebalance the speech market. That unadorned interest is not “unrelated to the suppression of free expression.” And Texas may not pursue it consistent with the First Amendment. This is about as open and shut as it gets on the Supreme Court, and it's crazy that it even went that high.
- notyourwork 2y ago
  I found that text to be crystal clear. Some language from the courts I have trouble fully comprehending.
- skissane 2y ago
  I think Texas is at a disadvantage because they were very open about the political motivation for passing the law. But I’m wondering: suppose they pass a new law permitting state residents to challenge in court “arbitrary and capricious” content moderation decisions. And to publicly justify it, they find some examples of state residents who claim to be victims of such decisions (I’m sure they could), but for posting things that aren’t obviously political. For example, we live on the other side of the planet, but I’m thinking of the time my wife was suspended from Facebook for joking that her cousin’s baby was “so cute she had to kidnap her”-her cousin read that as just a figure of speech not a violent threat against a child, Facebook disagreed. So, a law to permit judicial review of content moderation decisions could be sold as something apolitical, and a law with such an apolitical framing might be more likely to be upheld by the Supreme Court. But once it has been accepted with that apolitical framing, then there is the potential for the judiciary to apply it in more explicitly political cases; and the precedent of applying it in apolitical cases may make courts more likely to accept it as constitutional if its application is later extended to more political cases too.
pessimizer 2y ago
> The justices directed lower appeals courts to reconsider their decisions regarding these 2021 laws authorizing the states to regulate the content-moderation practices of large social media platforms. Tech industry trade groups challenged the two laws under the U.S. Constitution's First Amendment limits on the government's ability to restrict speech. The 1st Amendment rights of the corporate-personed platforms were prioritized above the 1st Amendment rights of the people posting on the platforms - implying that as the conveyor of the speech of the individual speakers, the platform's rights subsume the rights of the speakers. In other words, people are free to speak to the platform, and the platform is free to communicate that speech as it wishes. The platform is also allowed to define any terms of service it wishes on the user, which can result in editing of speech by the platform, deletion of speech by the platform, of banning users themselves from the platform. And this is just in respect to speech: they can also force mediation, or the granting of rights to the platform to republish the material - exclusive or otherwise. This cannot even be restricted by state law. Could it be restricted by federal law? But under section 230, the platform is indemnified in respect to repeating the unlawful or tortious speech of others that it handles (subject to respecting lawful requests for removal.) However, this still leaves the individuals who spoke liable for that unlawful or tortious speech, even after it was intermediated by the platform, who had constitutionally unlimited ability to restrict it. I don't know that there are any limits to how the platform can control the user's speech that it carries, and I'm wondering if this decision means that placing any limits on any platform conveying speech is unconstitutional? While the restrictions on the user by the platform are arbitrary? And while the government can issue lawful orders to delete speech to the platform, and wealthy people can send lawful requests to the platform for speech to be deleted, and the platform then can make arbitrary decisions about what to delete which are now constitutionally protected and can't be appealed? Why wouldn't they just censor any speech that was challenged? Telephone services were an exception to this, as a "common carrier," but as they cease to be actual telephone services running over wires and become VOIP systems running over wireless internet, wouldn't they have the same rights? And as "common carrier" isn't an actual status, but a internal classification by a regulatory agency, does that mean in light of Chevron being rolled back, any telephone company could simply challenge this status and instantly win, or insist that they are now a VOIP service and have the above rights anyway? Even before Chevron was rolled back, was this simply something that could be changed by regulators on a whim? Does this effectively end all free speech for people who do not own presses, or telephone companies, in a way that has been declared to be absolute i.e. it would be a constitutional violation to establish any limits on platform editorial control or disconnection of services altogether for any platform's arbitrary reasons? Also, since Chevron is gone, unless there has been some law passed by Congress specifically designating who common carriers are, could this give electric companies editorial control over how people use electricity, or water companies editorial control over how people use water? I really don't understand any of this, and it is alarming. Instead of Congress or the courts establishing a reasoable framework about how to regulate speech on the internet, it has just handed individuals' 1st Amendment rights to the people who own the internet. We're only left with speaking with our mouths, in public, and our ability to do that is also severely limited (although through different means.) Scary times.
bippihippi1 2y ago
could this impact the exemption from liability for user posted content? "Section 230(c)(1) of the Communications Decency Act protects social media platforms from liability for harmful content posted on their sites by users" If the social media companies claim that their choice to show or not promote or censor user content is free speech, should that speech still be exempt as if they had no control over it?
- xoa 2y ago
  >could this impact the exemption from liability for user posted content? No, not in the slightest. Section 230 is completely orthogonal from the First Amendment. Section 230 deals with civil liability for speech that is NOT protected by the 1A and the practical effects of that as it intersects with the realities of the legal system. It has nothing to do with letting government put its thumb on the scale. >If the social media companies claim that their choice to show or not promote or censor user content is free speech, should that speech still be exempt as if they had no control over it? That's not what 230 is about, 230 is precisely about allowing imperfect control to be exercised. It is long, long established (rightly) that what someone allows or doesn't on their own private property and to be published under their own media is expressive, and thus protected by the 1A. If someone wishes to assert something falls outside of the 1A though (like defamation), litigating that can be expensive, as can liability if it was. There are two historic ways to handle that pre-CDA. 1. Pre-vetting (traditional publishing): With traditional media like a newspaper which published both 1st and 3rd party content (like letters to the editor), it was both necessary and practical to pre-vet everything published (and have contracts regarding liability, insurance etc). So they're responsible for what they publish, but can handle that. But that doesn't scale at all. Imagine if dang had to read every single post here on HN and evaluate whether it was legal before allowing it to go up, making edits if necessary. 2. Common carrier (classic example being carriers ala post office, UPS, or Fedex, electronic ones being ISPs): here an entity simply provides a service to anyone without any content discrimination at all beyond things like court order or provisions related to providing the service itself, like preventing anything that'd directly threaten, disrupt or damage the provider. So a mail carrier can prohibit hazardous substances requiring special handling they don't offer (or only offer with special services and costs for the equipment/training required), an ISP can deal with DoS, hack attempts and so on. But that means spam and stuff you don't want to see is passed along too. Neither of these fit with what the people want from private forums of all flavors (from bbs to the newest social media) on the internet. It's desirable to have something that is fast and scales, where even an individual not well off person is able to have a blog and have a very low cost to run the underlying platform for that, and enable a comment section, or have a little phpBB forum or whatever else, and then let people discuss that. It's also desirable to allow there to be content discrimination (moderation, this forum is for talking about specific issues not spamming ads) that is imperfect and non-instant, without then making the hoster legally liable for anyone posting anything not protected by the 1A, and without requiring an enormously burdensome legal process for that. Section 230 was created directly as a result of Stratton Oakmont v. Prodigy, where a court found that because Prodigy had exercised editorial discretion, they were then liable for all content carried. This would destroy much of the internet. Want to have a forum devoted to cats and rockets, and so you delete posts about fish and trains? Now if someone posted something defamatory you didn't notice or realize was, you're liable for it. So Section 230 was created to specifically to enable people to moderate content done by others, without becoming liable as a traditional publisher even if they missed things or were slow (an inevitability). They're still liable for their own speech. They're also still protected by the 1A for their own speech. At no point was it OK, with or without 230, for the government (federal or state) to put its thumb on the scale.

55 points by japhyr 2y ago

https://archive.is/pcC0N https://archive.is/pcC0N

> Because this is “a court of review, not of first view,” Cutter v. Wil- kinson, 544 U. S. 709, 718, n. 7, this Court cannot undertake the needed inquiries. And because neither the Eleventh nor the Fifth Cir- cuit performed the facial analysis in the way described above, their decisions must be vacated and the cases remanded. Pp. 9–12. Big nothing-burger here. As I see it, this means it could be years yet before a real Supreme Court decision comes down.

dylan604 2y ago
so why did the court even accept to hear the case? I thought there were other mechanisms to tell the case it had no standing before the court. yes, it will probably take years to get a case with actual standing, but you know there are people itching to offend a state's law specifically to take bring it before SCOTUS. this one was just a bit premature.
- ARandomerDude 2y ago
  As I read it, the decision wasn't just "we refuse to decide your case." It was "lower courts, you should not have ruled the way you did because you didn't consider all the relevant facts. Go do your homework then decide the case, not the other way around." The lower court rulings were vacated (struck down) because they didn't consider the full scope of the relevant law. IANAL. https://www.supremecourt.gov/opinions/23pdf/22-277_d18f.pdf https://www.supremecourt.gov/opinions/23pdf/22-277_d18f.pdf
- AnimalMuppet 2y ago
  > so why did the court even accept to hear the case? Because the Fifth District and the Ninth (?) District decided their respective cases in different ways. The Supreme Court often deals with cases where district courts are doing different things with the same area of law.
  - jcranmer 2y ago
    Fifth and Eleventh Circuits. The districts are the actual courts at the lowest level; the circuits are the way they're organized into appeals courts.
AnimalMuppet 2y ago
Not quite nothing. It means that the laws don't go into effect now. They won't for years, if ever.
legitster 2y ago
If you look at the court documents, they provide a litany of reasons the case had no merit and also that the circuit courts were in the wrong. The core principles of content moderation and editorial review being protected free speech are pretty strongly worded throughout the decision.
dwallin 2y ago
You are missing the key bit right after that where they basically scolded the 5th circuit for not having a basic understanding of free speech. They then proceeded to outline in detail why said analysis should almost certainly lead to the law failing to pass constitutional muster. This was not the Supreme Court throwing up their hands, this was the Supreme Court saying "This is basic stuff you shouldn't be getting wrong, try it again." > It is necessary to say more about how the First Amendment relates to the laws’ content-moderation provisions, to ensure that the facial analysis proceeds on the right path in the courts below. That need is especially stark for the Fifth Circuit, whose decision rested on a serious misunderstanding of First Amendment precedent and principle.
- red-iron-pine 2y ago
  sounds to me like the Fifth Circuit saw how the wind was blowing and didn't want to make a call least they upset The Powers That Be. Plus the 5th is based out of Texas and getting appointed there usually means getting alignment with the locals.

colechristensen 2y ago

calibas 2y ago

It's interesting how fast political ideology goes out the window. Here we have the Republicans fighting for increased government regulation of private businesses, while Democrats are arguing it's unconstitutional and violates "free speech".

balls187 2y ago
Rather, in the US, politics is mostly based on keeping yourself elected, and political ideologies are pretty much lip service. In reality, both sides all just serve at the pleasure of the elite. What I love about Trump (despite never having a desire to votefor him) is he makes no attempt to hide that, often times going so far as to rub the political class' noses in it.
- lallysingh 2y ago
  Yes, this. Ideologies follow demographics of likely voters, that's it. They're the worm on the hook, not the objective.
- maxwell 2y ago
  Not at all—more lucrative to say what people want to hear, raise a bunch of money, and lose, than it is to get in office and need to violate your campaign promises to appease the donors with steering influence. https://www.nbcnews.com/meet-the-press/meetthepressblog/s-happens-candidates-leftover-money-rcna57340 https://www.nbcnews.com/meet-the-press/meetthepressblog/s-ha...
- netsharc 2y ago
  > he makes no attempt to hide that Does he not? His speeches promise a "great America again!" to the conned masses, when the reality it's "Put me back into power so I can stay out of jail, and grift, for another 4 years at least.". It would be interesting if one could put an actual "what I actually want" translator next to Trump like in this sketch: https://www.youtube.com/watch?v=HkAK9QRe4ds https://www.youtube.com/watch?v=HkAK9QRe4ds .. not that the conned masses would hear it and get a "Wow! He's a conman!" moment; they've projected onto him their hopes, dreams, and the idea that he will be the one to avenge their angers. (BTW In Obama's post-presidential book he lamented about the same thing in 2008, that his voters were placing their hopes of all sorts of change on him, and that his campaign/supporters were inadvertendly creating cult-of-personality around him.)

ARandomerDude 2y ago

https://www.supremecourt.gov/opinions/23pdf/22-277_d18f.pdf https://www.supremecourt.gov/opinions/23pdf/22-277_d18f.pdf

jmyeet 2y ago

Some context: 1. The Fedearl court system is divided into circuits [1]. These circuits can be (and are) organized differently to each other. They generally are divided into Districts (eg the Southern or Eastern District of NY) and may be further divided into divisions, usually with the idea that a person bringing a suit is relatively geographically close to the court. This unfortunately is the basis for "judge shopping" where you basically know what judge you'll get if you file in a certain area; 2. Florida is in the 11th Circuit. Texas is in the 5th Circuit; 3. The Circuits tend to reflect the politics of their constitutent states thanks to the Blue Slip system [2]. So to appoint a Texas judge, you need essentially a sponsor in a US senator from Texas. The politics will tend to align; 4. Circuits are divided into Distrct Courts and Appellate Courts (ignoring magistrate judges for now). A decision by a Federal district court is not binding to any other court. If a ruling is appealed it goes to that circuit's appellate court. Whatever that appellate court rules is binding to that circuit; 5. There are 9 Supreme Court ("SCOTUS") justices. SCOTUS has absolute discretion in deciding what cases to take. It requires 4 of the justices deciding to take any case. This can be (and has) done strategically, specifically to take or avoid taking a case when a particularly ideological block of the court feels they'll get a decision they do or do not want. The court is, and always has been, political. 6. One way to force SCOTUS's hand is if different circuit appellate courts rule differently on the same fundamental issue. That's basically what happened here between the 5th and 11th Circuits. Both Texas and Florida had passed differnet laws against censoring or "deplatforming" political candidates in the wake of, for example, former President Trump being banned from Twitter in the wake of Jan 6. The court said, essentially unanimously, that neither circuit had considered the First Amendment argument against these laws, which is actually pretty wild. It's worth adding that the First Amendment (like the entire Constitution) is a restriction of government actions. If this wasn't clear enough, the first five words of the First Amendment are, quite literally: > Congress shall make no law ... It's worth adding that the 14th Amendment later extended restrictions on government actions to state and local governments. Both the Texas and Florida laws should've failed immediately on First Amendment grounds. SCOTUS simply sent the cases back to the respective courts to consider this issue. I suspect we'll see these cases again as one or both of these courts will do mental contortions to decide that these laws have no First Amendment issue. [1]: https://www.uscourts.gov/sites/default/files/u.s._federal_courts_circuit_map_1.pdf https://www.uscourts.gov/sites/default/files/u.s._federal_co... [2]: https://en.wikipedia.org/wiki/Blue_slip_(U.S._Senate) https://en.wikipedia.org/wiki/Blue_slip_(U.S._Senate)

jauntywundrkind 2y ago

Wow, what a slam. Go back & analyze not just the specific case at hand, but generate a complete analysis of who these laws would apply to, in which circumstances, and the constitutionality of all. I feel like it's submitting your homework & being told you need to go do a thesis on the topic to get credit. There's some very promising guidance too. Recognizing that there is a right to expression, that these platforms aren't magically stripped of their expression rights because they host huge volumes or because they don't themselves post kneecaps the rock out of some very strong absurd censorship complainers. > States (and their citizens) are of course right to want an expressive realm in which the public has access to a wide range of views. But the way the First Amendment achieves that goal is by preventing the government from "tilt[ing] public debate in a preferred direction" Including forcing companies to achieve that preferred balance for them. Surprisingly promising start. I started in on the opinions but man these are long; interested to see how the various judges tackle this.

legitster 2y ago
I don't actually know if there is a lot here to grapple with. The justices are just affirming a pretty obvious and core principle of the First Amendment.

legitster 2y ago

> Texas has never been shy, and always been consistent, about its interest: The objective is to correct the mix of viewpoints that major platforms present. But a State may not interfere with private actors’ speech to advance its own vision of ideological balance. States (and their citizens) are of course right to want an expressive realm in which the public has access to a wide range of views. But the way the First Amendment achieves that goal is by preventing the government from “tilt[ing] public debate in a preferred direction,not by licensing the government to stop private actors from speaking as they wish and preferring some views over others. A State cannot prohibit speech to rebalance the speech market. That unadorned interest is not “unrelated to the suppression of free expression.” And Texas may not pursue it consistent with the First Amendment. This is about as open and shut as it gets on the Supreme Court, and it's crazy that it even went that high.

notyourwork 2y ago
I found that text to be crystal clear. Some language from the courts I have trouble fully comprehending.
skissane 2y ago
I think Texas is at a disadvantage because they were very open about the political motivation for passing the law. But I’m wondering: suppose they pass a new law permitting state residents to challenge in court “arbitrary and capricious” content moderation decisions. And to publicly justify it, they find some examples of state residents who claim to be victims of such decisions (I’m sure they could), but for posting things that aren’t obviously political. For example, we live on the other side of the planet, but I’m thinking of the time my wife was suspended from Facebook for joking that her cousin’s baby was “so cute she had to kidnap her”-her cousin read that as just a figure of speech not a violent threat against a child, Facebook disagreed. So, a law to permit judicial review of content moderation decisions could be sold as something apolitical, and a law with such an apolitical framing might be more likely to be upheld by the Supreme Court. But once it has been accepted with that apolitical framing, then there is the potential for the judiciary to apply it in more explicitly political cases; and the precedent of applying it in apolitical cases may make courts more likely to accept it as constitutional if its application is later extended to more political cases too.

pessimizer 2y ago

> The justices directed lower appeals courts to reconsider their decisions regarding these 2021 laws authorizing the states to regulate the content-moderation practices of large social media platforms. Tech industry trade groups challenged the two laws under the U.S. Constitution's First Amendment limits on the government's ability to restrict speech. The 1st Amendment rights of the corporate-personed platforms were prioritized above the 1st Amendment rights of the people posting on the platforms - implying that as the conveyor of the speech of the individual speakers, the platform's rights subsume the rights of the speakers. In other words, people are free to speak to the platform, and the platform is free to communicate that speech as it wishes. The platform is also allowed to define any terms of service it wishes on the user, which can result in editing of speech by the platform, deletion of speech by the platform, of banning users themselves from the platform. And this is just in respect to speech: they can also force mediation, or the granting of rights to the platform to republish the material - exclusive or otherwise. This cannot even be restricted by state law. Could it be restricted by federal law? But under section 230, the platform is indemnified in respect to repeating the unlawful or tortious speech of others that it handles (subject to respecting lawful requests for removal.) However, this still leaves the individuals who spoke liable for that unlawful or tortious speech, even after it was intermediated by the platform, who had constitutionally unlimited ability to restrict it. I don't know that there are any limits to how the platform can control the user's speech that it carries, and I'm wondering if this decision means that placing any limits on any platform conveying speech is unconstitutional? While the restrictions on the user by the platform are arbitrary? And while the government can issue lawful orders to delete speech to the platform, and wealthy people can send lawful requests to the platform for speech to be deleted, and the platform then can make arbitrary decisions about what to delete which are now constitutionally protected and can't be appealed? Why wouldn't they just censor any speech that was challenged? Telephone services were an exception to this, as a "common carrier," but as they cease to be actual telephone services running over wires and become VOIP systems running over wireless internet, wouldn't they have the same rights? And as "common carrier" isn't an actual status, but a internal classification by a regulatory agency, does that mean in light of Chevron being rolled back, any telephone company could simply challenge this status and instantly win, or insist that they are now a VOIP service and have the above rights anyway? Even before Chevron was rolled back, was this simply something that could be changed by regulators on a whim? Does this effectively end all free speech for people who do not own presses, or telephone companies, in a way that has been declared to be absolute i.e. it would be a constitutional violation to establish any limits on platform editorial control or disconnection of services altogether for any platform's arbitrary reasons? Also, since Chevron is gone, unless there has been some law passed by Congress specifically designating who common carriers are, could this give electric companies editorial control over how people use electricity, or water companies editorial control over how people use water? I really don't understand any of this, and it is alarming. Instead of Congress or the courts establishing a reasoable framework about how to regulate speech on the internet, it has just handed individuals' 1st Amendment rights to the people who own the internet. We're only left with speaking with our mouths, in public, and our ability to do that is also severely limited (although through different means.) Scary times.

bippihippi1 2y ago

could this impact the exemption from liability for user posted content? "Section 230(c)(1) of the Communications Decency Act protects social media platforms from liability for harmful content posted on their sites by users" If the social media companies claim that their choice to show or not promote or censor user content is free speech, should that speech still be exempt as if they had no control over it?

xoa 2y ago
>could this impact the exemption from liability for user posted content? No, not in the slightest. Section 230 is completely orthogonal from the First Amendment. Section 230 deals with civil liability for speech that is NOT protected by the 1A and the practical effects of that as it intersects with the realities of the legal system. It has nothing to do with letting government put its thumb on the scale. >If the social media companies claim that their choice to show or not promote or censor user content is free speech, should that speech still be exempt as if they had no control over it? That's not what 230 is about, 230 is precisely about allowing imperfect control to be exercised. It is long, long established (rightly) that what someone allows or doesn't on their own private property and to be published under their own media is expressive, and thus protected by the 1A. If someone wishes to assert something falls outside of the 1A though (like defamation), litigating that can be expensive, as can liability if it was. There are two historic ways to handle that pre-CDA. 1. Pre-vetting (traditional publishing): With traditional media like a newspaper which published both 1st and 3rd party content (like letters to the editor), it was both necessary and practical to pre-vet everything published (and have contracts regarding liability, insurance etc). So they're responsible for what they publish, but can handle that. But that doesn't scale at all. Imagine if dang had to read every single post here on HN and evaluate whether it was legal before allowing it to go up, making edits if necessary. 2. Common carrier (classic example being carriers ala post office, UPS, or Fedex, electronic ones being ISPs): here an entity simply provides a service to anyone without any content discrimination at all beyond things like court order or provisions related to providing the service itself, like preventing anything that'd directly threaten, disrupt or damage the provider. So a mail carrier can prohibit hazardous substances requiring special handling they don't offer (or only offer with special services and costs for the equipment/training required), an ISP can deal with DoS, hack attempts and so on. But that means spam and stuff you don't want to see is passed along too. Neither of these fit with what the people want from private forums of all flavors (from bbs to the newest social media) on the internet. It's desirable to have something that is fast and scales, where even an individual not well off person is able to have a blog and have a very low cost to run the underlying platform for that, and enable a comment section, or have a little phpBB forum or whatever else, and then let people discuss that. It's also desirable to allow there to be content discrimination (moderation, this forum is for talking about specific issues not spamming ads) that is imperfect and non-instant, without then making the hoster legally liable for anyone posting anything not protected by the 1A, and without requiring an enormously burdensome legal process for that. Section 230 was created directly as a result of Stratton Oakmont v. Prodigy, where a court found that because Prodigy had exercised editorial discretion, they were then liable for all content carried. This would destroy much of the internet. Want to have a forum devoted to cats and rockets, and so you delete posts about fish and trains? Now if someone posted something defamatory you didn't notice or realize was, you're liable for it. So Section 230 was created to specifically to enable people to moderate content done by others, without becoming liable as a traditional publisher even if they missed things or were slow (an inevitability). They're still liable for their own speech. They're also still protected by the 1A for their own speech. At no point was it OK, with or without 230, for the government (federal or state) to put its thumb on the scale.