Big Tech and Uncommon Carriers

[Ishmael]

You may be a narrow gauge  American trapped in your little world , I’m not

Also, think what you want little man... Think what you want, you have absolutely No Idea....  LOL

He is such a cosmopolitan bon vivant, a man of the world...he reads Pravda as well as watches Fox.

 

[Pertinacious Tom]

ACLU Abandons First Amendment in Colorado Gay Wedding Web-Hosting Case

Would you believe the American Civil Liberties Union (ACLU) and Republican Florida Gov. Ron DeSantis have something in common? They both believe that the state should be able to force web companies to host content that these platforms disagree with or find morally objectionable in some fashion.


If that sounds remarkable, check out the amicus brief that the ACLU submitted Friday defending the authority of the state of Colorado to make a small web company host pictures of gay weddings against the will of the company's owner. Note how similar it is to Florida's attempts to force web companies to carry campaign messages from political candidates against the platforms' will.


Lorie Smith, owner of web design firm 303 Creative, is challenging Colorado's Anti-Discrimination Act, part of which requires businesses in the state to accept customers regardless of race, sex, sexual orientation, and many other categories. Smith has moral objections to the legal recognition of same-sex marriage. She says does not intend to discriminate against any LGBT customers, but she also believes that forcing her to post images of gay weddings on her site is mandating that she carry expressive speech and violates her First Amendment rights.


The Supreme Court agreed in February to hear 303 Creative LLC. v. Elenis later this year. The question at hand is whether a public accommodation law can compel an artist to speak or remain silent without violating the First Amendment.


The brief by the ACLU rejects the central question
...
One of the more depressing inclusions in this ACLU amicus brief is its use of a Supreme Court case from 1968, United States v. O'Brien, to attempt to bolster its argument that the state of Colorado has the power to regulate speech in this way. In that case, David Paul O'Brien was convicted of violating federal law by publicly burning his draft card in protest of the Vietnam War. The Supreme Court determined that the prohibition against burning draft cards didn't violate the First Amendment because the federal government had a compelling interest in maintaining the draft and the rule was narrowly tailored to achieve that goal.

O'Brien was represented in this case by Marvin M. Karpatkin, who after this case would become an ACLU attorney and join its board of directors. He died in 1975. There's now a fellowship program at the ACLU named after Karpatkin.

In this brief, the ACLU essentially throws Karpatkin's arguments in the trash bin all in favor of supporting the power of Colorado to force a web company to carry gay wedding photos. Once, lawyers connected to the ACLU fought for the right to burn draft cards. Today's ACLU lawyers say, "No one disputed that O'Brien's burning of a draft card to protest the Vietnam War was expressive. But because the government's interest in prohibiting destruction of draft cards was unrelated to what any particular act of destruction communicated, intermediate scrutiny applied. And the result would have been precisely the same had O'Brien burned his draft card as performance art rather than political protest," and apparently believe that this is a good and defensible outcome.

How far they've fallen. Take a look at this paragraph:
...

I decided to check out 303 Creative LLC v. Elenis on scotusblog. Holy shit. And, presumably, at least some anti-holy shit. It's nice to have friends and all but I don't think I've seen an amicus list that long before.

 

[badlatitude]

 

[Olsonist]

Tom will be along shortly to not find that interesting.

 

[Olsonist]

Let it be known that Tom was indeed along shortly, only elsewhere, and that he wasn't particularly interested.

 

[Pertinacious Tom]

Let it be known that Tom was indeed along shortly, only elsewhere, and that he wasn't particularly interested.

Sure, I'm still interested. Not sure why your post landed where it did. I wasn't sure whether it should be a reply to the above relevant post of mine or this one:


What do you think? I mean about which post AND about why the ACLU, NY TImes, Senator Wyden (oh, and Rand Paul) and I are wrong about the Espionage Act?

My post specifically said I was interested, and I still am.

Interested in why the ACLU, NY TImes, Sen Wyden, and I are wrong, that is.

"Because Rand Paul" is an answer, just a really stupid one. Try for a smart one, if you're really more interested than badlat, who just trolled and ran.

 

[Pertinacious Tom]

Wow

5th Circuit Rewrites A Century Of 1st Amendment Law To Argue Internet Companies Have No Right To Moderate

As far as I can tell, in the area the 5th Circuit appeals court has jurisdiction, websites no longer have any 1st Amendment editorial rights. That’s the result of what appears to me to be the…

www.techdirt.com

5th Circuit Rewrites A Century Of 1st Amendment Law To Argue Internet Companies Have No Right To Moderate​

This post is political and is related to a lot more than moderation quirks on this forum, so I moved it to a relevant thread.

It's funny to me that "otherwise objectionable" is not quite "similarly objectionable" but I'm not sure it matters.

 

[phillysailor]

I think I grok the issues, and I believe it comes down to this:

These Supremish Justishes want Sec 230 to force internet platforms to either be publishers, in which case they can br held liable for content and thus apply editorial discretion to stuff they host, or they can be pure conduits, in which case they aren’t liable for content but cannot infringe on their posters’ right to spew misinformation & such.

I think that is a false choice, that imposing such a choice upon platforms limits their rights to free speech.

But I haven’t been a long-standing GOP political operative nominated to the 5th Circuit, so what do I know?

 

[Pertinacious Tom]

Rand Paul supporters from around the world support Putin and Trump

or something. Maybe a more accurate way to frame the story of that letter would be:

Major Media Outlets Condemn Continued Prosecution of Julian Assange

I still agree with the ACLU, the NY Times, and all their media friends. Oh and Rand Paul.

I'm guessing the only reason this is wrong is the one offered so far: "Because Rand Paul."

It's still stupid.

 

[Pertinacious Tom]

Twitter Is More Like a Traveling Circus Than a Public Square

...
I use Twitter, but recognize that it isn't a public utility and its operation has nothing to do with anyone's constitutional speech rights. Its moderation decisions, however dubious, do not involve government control of what you can say. It's a private company and you don't have to use it. You can find a nearly limitless number of alternatives for speaking your mind, such as starting a Substack newsletter no one reads or writing a letter to the editor.


The Twitter fixation reminds me that many people don't have enough to do in their lives, given the attention they pay to the latest inane tweets—and their intense focus on everything that Musk says on or does with the platform. Musk's biggest right-leaning supporters will end up disappointed as he stumbles his way through the process. Only a fool would believe that a mercurial billionaire will protect anyone's rights or uplift humanity.

The blue checkmark fiasco—whereby Twitter sells verified status—backfired spectacularly. Now, it's even more difficult to tell real users from parody accounts. Instead of serving as a public square, Twitter functions like a clown show. Sadly, an entrepreneur who built groundbreaking electric-vehicle and space companies is wasting time on nonsense rather than sending people to Mars.

One need only follow the childish tit-for-tat between Musk and former Clinton Labor Secretary Robert Reich to understand why this Twitter takeover is a tempest in a teapot, but expect sky-is-falling chat about democracy and free speech to continue. Again, it's a private company. Its owner can do what he chooses. And you're free to get a life.

I think I might have called it a childish twit for twat.

 

[Pertinacious Tom]

Justice Thomas on overturning Justice Thomas' Brand X Decision

...
Brand X's implications for net neutrality are nuanced. The Court found the relevant statute, the Telecommunications Act of 1996, to be ambiguous and yielded to the FCC's assessment that internet service providers (ISPs) are not common carriers. At the time, this was a boon to opponents of net neutrality, since the FCC lacks authority to mandate net neutrality unless internet service providers are classified as such. That outcome hinged on Chevron deference, however, the judicial doctrine which holds that judges should give way to bureaucrats' interpretation of unclear statutory language, established by Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. (1984). Under Brand X precedent, if the FCC reverses course and classifies ISPs as common carriers, which is Sohn's goal, the Court must yield. In short, while Brand X saved ISPs from common carrier status for the moment, it fortified a legal theory that might later doom them to the same fate.

...

Brand X's legal reasoning, though not its regulatory impact, ought to be upended.


Clarence Thomas, the sole remaining justice from Brand X, has recanted his vote and urged his colleagues to revisit the 2005 majority's Chevron-based conclusions. Whether Thomas will manage to assemble a majority to explicitly renounce Chevron is unclear, but the Court has in recent years hamstrung the doctrine by generally ignoring it.

"Although I authored Brand X, 'it is never too late to "surrende[r] former views to a better considered position,"'" Thomas wrote in 2020. "Brand X appears to be inconsistent with the Constitution, the Administrative Procedure Act (APA), and traditional tools of statutory interpretation."

There's something to be said for stability but Thomas doesn't get all starry-eyed over his previous decisises.