by Dennis Crouch
NetChoice, LLC v. Paxton, 21A720, 596 U.S. ___, 2022 WL 1743668 (U.S. May 31, 2022)
The most recent news in this case is that a 5-4 Supreme Court has sided against Texas–issuing an emergency order to reinstitute the preliminary injunction against enforcement of the Social Media Censorship law known as HB20. The case is now back before the 5th Circuit who review the preliminary injunction order in a non-emergency fashion.
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The State of Texas enacted HB20 to regulate large social media platforms (>50 million users). The law has a number of reporting requirements and also prohibits large social media platforms from censoring users based upon that user’s viewpoint viewpoint. Here, “censor” is broadly defined “to mean to block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression.”
NetChoice is a lobbying organization controlled by large media companies, including Google, Facebook, TikTok, Amazon & Twitter. Those companies argue that HB20 impinges upon their Constitutionally protected free speech rights. In particular, the large social media platforms argue that the First Amendment protects their rights to operate as editors making publication decisions.
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The Supreme Court’s decision against Texas was issued without an opinion by a 5-judge majority of Chief Justice Roberts along with Justices Breyer, Sotomayor, Kavanaugh and Barrett. Four justices dissented, including Justice Kagan who did so without any opinion. The only opinion then came from Justice Alito’s dissent that was joined by Justices Thomas and Gorsuch. This sort of decision here is quite wonky — it is an emergency order to vacate the 5th Circuit’s order to temporarily stay the district court’s preliminary injunction. Here, I want to just focus a bit on Justice Alito’s First Amendment suggestions, which he notes have not been finalized at this preliminary and emergency stage.
Justice Alito’s opinion identifies the first amendment issues at stake here to be important and novel. “It is not at all obvious how our existing precedents, which predate the age of the internet, should apply to large social media companies.” Although editorial control is certainly within the First Amendment, the court has previously allowed requirements to be placed on broadcast and cable television and even a shopping center. See PruneYard Shopping Center v. Robins, 447 U. S. 74 (1980) and Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622 (1994).
Next step in the case is for the 5th Circuit to decide whether to cancel the preliminary injunction. I expect that the court will at least narrow the injunction if not entirely eliminate it. At that point the case will move back down to the district court. If Texas does begin enforcement then there will likely be a number of cases moving up through both State and Federal courts.
There is a backstory to my litigation. An attorney was going to file the case for Olivia and me, but he died in June 2021. I rewrote the case so that it could be filed in the United States District Court for the District of Massachusetts and so that I would be the only plaintiff.
One can find the litigation on Pacer:
District Court: Martillo v. Twitter, 1:21-cv-11119-RGS,
1st Circuit Appeals Court: Martillo v. Twitter, 21-1921, and
Supreme Court: Martillo v. Twitter, 21–6916.
The Ohio, 1st Circuit, 5th Circuit, and 11th Circuit cases all seem to complement one another in highlighting serious problems, inequities, and injustices in the actions of social medium platforms.
I am winging it in the Court of Appeals for the First Circuit and should be outmatched because Medium hired a top-notch legal gunslinger.
My experience with the FCC and with the Court of Appeals for the DC Circuit as well as my understanding of the technology along with my knowledge of history of message common carriage seems to be a sort of equalizer.
It took a while for the Counsels for Twitter and for Medium to acknowledge how old the technical and legal history of the common carriage of digital personal literary property is.
Message common carriage of digital personal literary property starts in the 1840s well before the 1869 enactment of the two Massachusetts common carriage statutes, which are at the heart of 1/3 of my litigation.
In order to make a point, I petitioned SCOTUS for certiorari to the Court of Appeals for the First Circuit before judgment even though there was not much to review at that point because the Court of Appeals for the Fourth Circuit should not be allowed to create law by using a logical fallacy (denial of the antecedent) to reach a decision as the Court of Appeals for the Fourth Circuit did in Zeran v. America Online, 129 F.3d 327 (4th Cir. 1997).
It breaks the US legal system if logical fallacy is allowed to creep into a legal ruling.
Very nice pictorial demonstration.
link to youtu.be
Here is an example of why 230 needs to change or the courts need to address the active curation with a bias issue.
See you can defame a person by selecting which content remains on the site–take down the truth and leave up the defamatory statements, which currently FB thinks is protected by 230.
It is pretty to anyone that puts in a few minutes of work. One can be defamed by active curation where the curator picks a side or allows defamatory content to remain while removing all other content that would defend your position.
What this is about is restoring a person’s common law right to sue for defamation. Section 230 as used with active biased curation effectively enables a publisher to commit defamation with impunity.
I think the Scotus would definitely take cert on one of these defamation cases.
I also think the way back to sanity in this country would be greatly helped if people could more easily sue for defamation.
Here is an example of why 230 needs to change or the courts need to address the active curation with a bias issue.
Getting your news from Tucker Carlson’s show? Not much hope for you then.
I suggest your read the Opinion and Order Granting Motion to Dismiss in a slander suit against Tucker Carlson. It is dated September 24, 2020. Fox argued “Mr. Carlson’s statements ‘cannot reasonably be interpreted as facts.'” Here is another one:
“Fox persuasively argues, that given Mr. Carlson’s reputation, any reasonable viewer ‘arrive[s] with an appropriate amount of skepticism’ about the statement he makes.”
Regardless. Getting your news from Tucker Carlson is akin to getting an understanding of 101 law from MM. It is one note — ALL THE TIME.
See you can defame a person by selecting which content remains on the site–take down the truth and leave up the defamatory statements, which currently FB thinks is protected by 230.
Again, let me recommend you actually get on Twitter and see for yourself what is ACTUALLY going on there. Let me recommend going to MTG’s account and starting working off of that. Perhaps you can peruse some of the people that she is following or is following her. You may need to take a shower afterwards, but I very much doubt you’ll come away thinking that Twitter is some leftwing sanctuary.
One can be defamed by active curation where the curator picks a side or allows defamatory content to remain while removing all other content that would defend your position.
Again, go on Twitter and see what is actually going on. Stop getting your news from Tucker Carlson.
I also think the way back to sanity in this country would be greatly helped if people could more easily sue for defamation.
OK, we’ll put you on the side for chilling free speech.
I think the Scotus would definitely take cert on one of these defamation cases.
You really haven’t read much 1st Amendment cases recently, have you?
Come on. You didn’t address the legal issues at all.
WT, you seem to have been infected with the wo ke virus.
Your arguments are not legal arguments but arguments of policy that the social media companies need this 230 power to defame people because of bad actors. The elite need authoritarian power to control the masses.
On a local FB group I am on, I challenged people to a very simple challenge. Learn a lot about a few stories. Write down a list of facts. And then see which of those facts are reported by the various “news” services. What you will find is that the NY Times, Washington Post, CNN, MSNBC, and so forth do not report all the facts or all the stories and misrepresent the facts they do report.
All I can tell you if you want to free your mind is stop using those news sources. And you can objectively measure how bad they are if you put the work into finding out a lot about a few stories.
His view is that ANYTHING from Tucker (or Fox, or [pick your source]) can be dismissed entirely out of hand.
Dr. Lindsay covers this in one of his podcasts.
Certainly Tucker – just like ALL media programs – must be taken with a grain of salt and applying independent and cognitive reasoning is in order — just as it is always in order.
It might be interesting (then again it might not), to understand if Wt accepts at face value ANY mainstream media source.
Or if he still thinks that there was no “there” there with the Hunter Biden laptop, the Hillary Russia collusion hoax, Dr. Fauci’s emails or any number of “inconvenient-to-the-Liberal-Left-narrative” stories.
It’s actually funny – as a Centrist, I am typically surprised at how much fodder the Left keeps on giving the Right (as if they WANTED ‘conspiracy theories’ to run amuck).
I’ve said this before but if you just learn a lot about a few issues and then observe how different news outlets report the issues, then you opinion of the legacy media will change. Everything has changed since 2016.
I’ve voted D for decades but now I will vote R. I think over the last 18 months that I will never vote D again unless there is major reform in the D party.
You are an example of the Elon Musk stick figure “Sprint Left” meme.
Of course, to folks like Malcolm, anyone not already “sprinted Left” was already in the “Far Right” ‘one bucket.’
anon, the other thing that most of these people don’t realize is that the legacy media has completely changed since 2016.
If you just learn a lot about an issue and look at the facts reported by the legacy media, you quickly learn that the legacy media is not reliable. The legacy media is like the Star at the grocery store at this point.
Plus the misrepresentations about the Rs and Fox are ridiculous. Some of the content on Fox is excellent like Maria on business. And notice when people criticize Tucker that there are never any specifics. Tucker even has recently said maybe a minimum basic income is a good idea. Doesn’t sound far right to me. And if you actually understand issues you realize many of Tucker’s positions agree with real academic positions or think tank positions on issues. Like the Ukraine where real scholars look at the Ukraine and say that this whole thing was instigated by the USA military industrial complex by arming the Ukrainians and provoking Russia, which is what Tucker says.
Fox has some ridiculous biases like still supporting Trump and the big lie. But if one does a simple test. Write down the 10 most important facts about an issue and see if the legacy media reports those facts for an issue, you will find they do not.
In fact one interesting thing to do is read/listen to 10 different news sources about an issue and write down what the important facts are and the subset each of the 10 news sources reported on.
(I also note that Fox seems to have far more diversity in thought than the legacy media where Fox tolerates people on the left. And Fox now seems to have a lot of diversity in the type the legacy media cares about–gender, sexual identity, and skin color.)
Plus, if you listen to Fox, which is completely different than it was in 2016, you will find that they fairly assess the arguments of the other side. They actually try to understand and present what the other side is saying something the legacy media does not do.
Anyway….when you get to reality of facts, there is simply nothing to support the accusations against Fox. Funny too about the lawsuit against Tucker as the first person to use that defense successfully was Rachel Maddow who is the most popular or was commentator on the left. A kind of Tucker for the far left.
Like you notice that all we hear about on the legacy media is the great danger of w h ite su prema cy and even all this targeting by the DOJ on this issue. But where are these people? What have they done out of proportion to other skin colors?
The FBI statistics say that an Asian, Hispanic, or black American is more likely to commit a hate crime than a white person. But somehow there are all these people somewhere doing all these bad things that we don’t hear about and this is the biggest problem. Shear nonsense. And the facts at the FBI website back up what I just said.
ALL of this is nothing more than the identity politics of the Neo-Liberal, Post Marxist machine.
The podcast series by Dr. James Lindsay explicates this – to a T.
All of this affects patent law because we have moved into a post reality stage in the USA where the propaganda is more important than reality and actually the scary part is that the government and social media now try to shape the statistics to try and fit their narratives rather than being objective.
Lemley is a good example of this where he just pushes propaganda about patents that has no basis in fact.
You notice like w hi te su pre ma cists are like the troll problem in patents. It has become the boogey man to justify any action by the left.
And, yet, when real studies are done and real statistics are looked the reality is there are a few w hite s u pre ma cists but not many and they cause fewer problems than other races in the USA. This is just like the troll problem where when real studies have been done the answer was there was never a troll problem. There were a few problem companies cause some minor troubles. And this was used to dismantle the patent system.
The far left is doing the same thing with the boogey man of whi te su pre mcists. Where are these people? What have they done? There are a few that have caused some minor problems but not out of proportion to other problems caused by other sick people with different sk in color.
So neither is a real problem. It illustrates how propaganda rules our thinking. And notice that each time that Fox is criticized that real facts aren’t used. Often they mischaracterize a position a single person on Fox holds as if that represents all of Fox. That is the thing with Fox compared to the legacy media. Fox actually tolerates diversity of thought. Tucker can say stuff that is out there and does not represent what anyone else on Fox believes. And others at Fox will actually criticize Tucker or at least debate the issues fairly.
The legacy media is like a cult where they all say the same thing and claim that the pod casters and Fox are far right disinformation. But the facts don’t support this.
You see this is all related to patent law because we have become ruled by propaganda machines and 230 helps enable that.
Just look at Lemley’s nonsense. Or Garland’s nonsense. Actually too it is a lot more scary than this as if you learn more about issues you realize how corrupt the D O J is. They are like a third-world country at this point. But you have to actually put the work in to understand issues. Like I would challenge anyone that doesn’t understand what I am saying to do a deep, deep dive on Cohen. Just learn all the facts on this case and you will learn that the legacy media, the D party, and the D O J are corrupt beyond measure. Seriously I challenge you to learn everything about Cohen. I will respond to your posts about Cohen.
Garland is as corrupt as can be — and he was the “Justice-to-be” that was denied because of the “R” political moves.
An excellent lecture directly to your point here:
link to open.spotify.com
Far those Sprinting Left, Dr. Lindsay is panning Trump here.
“So neither is a real problem. ”
That depends on your perspective. In MM et al’s minds, the existence of a single bona fide ra cist, and a bulk of the population that are supportive of a rac ially unequal in outcome “system” (government, school system etc.) is basically grounds to fe ar that your own gen ocide is imminent unless you, and everyone you ever meet, take immediate action against the ra cist. And even then you’re still wary. And to be fair, they’re probably right (or will be eventually). Western nations are arguably almost 80+ years into becoming overdue for the very human, very routine on a humanity scale, gen ocide. So they are not entirely without merit in their concerns. Obviously however, this is not an excuse to turn society and politics into a sht bu rger for everyone, in perpetu ity.
“Where are these people?”
Didn’t you hear? They’re down in “the most ra cist town in ame rica” (insert video of Hassan the le ftist getting m ad when a black youtuber went to “the most ra cist town in america” and was welcomed, overly so, and docume nted the whole thing, the whole dra ma is up on youtube).
6, you are so close – yet so far….
Eurabia and white re placement scares are incited by Zionist propaganda that is intended to distract from the ongoing ge nocide Zi onist colonial settlers perpetrate in Pa lestine.
^^^ and THAT is the rabbit hole to be avoided.
Perspective 6?…
link to facebook.com
I haven’t read enough about this yet to really be able to express my thoughts.
But there is something wrong with 230 when it is coupled with active curation of content that is biased. (It is weird that the tribal thinkers who now believe that FB and Twitter are on their side defend this. Just a complete loss of rational thought on their part).
I think this does implicate the Constitution. I’d have to read some more cases but the problem here is that FB (and it has done so) can provide a forum for your opponents to defame you and then when others try to defame your opponent they are removed or their content is removed.
So what it does is it provides a means where a person does not have a recourse to ensure they are not being defamed and unfairly in that active curation can make it so that an opponent does have such protection. Plus, you get the government action where the federal government has been twisting the arm of FB and Twitter with threats of anti-trust action or resending 230, and you have real Constitutional issues.
My guess–cert is going to be granted for a case involving 230. I admit I can’t quite put my finger on the best arguments but my intuition tells me that 230 is unconstitutional. It needs an added clause that it applies only in cases where the content provider is not performing active curation with a bias.
Imagine if Congress passed a statute that allowed the NY Times to print whatever defamatory content it wanted about anybody they didn’t like because they could merely select which op-ed pieces to publish and which not to publish. That would not be Constitutional to remove a person’s ability to sue for defamation.
JR point about preemption is strong. Joachim’s argument seems to be that FB and Twitter may be subject to other statutes for denial of service.
(And please no tribal arguments. This is not an R vs. D thing. )
Certainly with biased curation coupled with 230, a person is denied their right to protect their good name under common law.
Yup. I am certain now. 230 will get cert at some point and will fall.
Yes and no.
At its core, the issue is indeed “R v D” neutral.
However, as I have noted, not only is the current power structure conducive to “D” propaganda, you have active attempts at gaslighting in pretending that there is no issue at all.
In this sense, Joachim’s case is an example of a non-“R” instance of content control.
You are also correct in noting the hypocritical “Rules for Thee” Leftism of “it’s ok for my side” (note how Malcolm cannot handle my middle position of access for all sides).
This reminds me of my prediction of Malcolm’s flip-flop when it comes to the Supreme Court. He was all fine when the Court was acting in line with his Beliebs (be it anti-patent [which drew my prediction] or social/philosophical), but — as I predicted — when that Same Court turns and decides against his viewpoints, he rails against the same legislating from the Bench.
He literally is an “Ends justify MY Means” kind of guy.
Just thinking about it, I think this implicates the Equal Protection Clause.
230 gives large content providers the ability to deny you equal protection under the law.
My last comment about this. Sorry for the string.
I remember when 230 was passed and some of the arguments around it.
I don’t remember anyone thinking about the implications of active curation to favor a side or enable defamatory comments against one side being allowed to stay posted while defamatory comment against another side were deleted.
At the time the sites were not engaged in political discourse and it was mainly an argument they were neural and took all the bad stuff they could but they couldn’t operate if they were responsible for all the content.
So, this is actually another argument that this is unconstitutional or needs to be revisited as I don’t think it was conceived of at the time that a social media site would become political advocates and use 230 to defame one side while protecting their side.
Two aspects come to mind.
The first is in reference to an amici brief (iirc, Wt recommended it) written by one of the authors of 230.
No sure if he understood that his argument proved too much, but it certainly does.
The second point has to do with volume and the notion that (perhaps a real person) editor, or even a team of such could NOT curate a fast moving wide open web, and thus would need a fa 1l-safe indemnity.
However, this does not take into mind [sic] the capabilities that hyper-augment editorial control/slant (which include far more than mere banning or even expungement), such as for example shadow banning, de-rating, de-monitizing, and even auto-labeling and tagging content from identified sources that MAY not fit a desired narrative.
Note as well that the safeguards IN the Texas law reflect the known limitations of speech (in a “Can’t shout FIRE in a crowded theater” mode).
Indeed. Back to basics. When 230 was passed it was to provide immunity to the platform for my post: “Night Writer has a loathsome disease” (he does not). Ergo Night Writer would not have a cause of action against the platform for my per se defamatory statement because of the immunity granted the platform in section 230. He would of course have an action against me. Flash forward to today, wherein, the social media giants are actively engaging in viewpoint discrimination (basically being publishers albeit of user (or bot?) generated content). As others has said, this is a I want my cake and I want to eat it too scenario, ergo, you have section 230 immunity as given in the first ‘loathsome’ example, but you become a publisher and do not get immunity when you engage in viewpoint discrimination.
This is… not how equal protection works.
If a preacher delivers a firey sermon from the pulpit at Good Shepherd Baptist Church about Muslims, equal protection does not mean that the Muslims get to climb into the same pulpit afterwards and deliver a reply.
But if that same Preacher does so from the public square (time/place/manner being equal), then most definitely the Muslims DO get to “climb into the same pulpit.”
The 230 section DOES implicate this scenario.
The point of the Texas legislation IS to make certain that the public square concept applies.
The Internet is a vast state-supported facility, establishment, or (possibly functional) place of public accommodation for resource sharing. A social medium is within the Internet and thus is state-supported. A social medium comes under Title II of the 1964 CRA.
Olivia and I together represent 5-6 protected groups under Title II: non-white, Palestinian, Arab, Muslim, Jewish religious, and Jewish ethnic.
Federally 42 U.S. Code §§ 1981, 1982, & 1983 shield Americans not protected by Title II from discrimination by a social medium platform.
According to the 10th Amendment common law state common carriage law forbids common carriage discrimination if statutory federal common carriage law is not regulating a social medium platform.
47 U.S. Code § 223 prohibits obscene or harassing telephone calls in the District of Columbia or in interstate or foreign communications. According to this statute, an Interactive Computer Service is a dial-up
1. that provides a connection to a private remote server within a private network that belongs to a dial-up non-Internet online service as AOL, Prodigy, or Compuserve were in 1996 or
2. that provides a portal to the Internet, Bitnet, Usenet, etc. by means of the the non-Internet online service/technology, which no longer exists in 2022.
The Interactive Computer Service of 1996 is an obsolete technology and does not exist any more.
47 U.S. Code § 230 is an obsolete statute that the federal courts must ignore. Congress may need to enact a replacement statute.
hit a filter…
Your comment is awaiting moderation.
June 6, 2022 at 10:55 am
“is an 0bs0lete statute that the federal courts must 1g n0re”
Good luck with that – it is typically NOT up to a court to determine whether or not a law on the books is 0bs0lete (that’s our separation of powers thing for you).
If there were a law on the books specific to placement of a telephone booth, what would the courts do with it? Harvard used to have an old 1930s phone booth in the Harvard Union. I don’t know if it’s still there. It was the last phone booth that I saw. I suppose a Court could just apply a law, which applies to an obsolete technology, only when the obsolete technology is used.
Check out 47 U.S. Code § 223 – Obscene or harassing telephone calls in the District of Columbia or in interstate or foreign communications. It refers to an Interactive Computer Service, but the references only make sense for a dial-up service as AOL, Compuserve, and Prodigy were in 1996.
While it’s certainly possible to harass someone on the Internet or to send someone an obscene Internet communication, it’s not clear that such harassment or obscenity transmission comes under § 223. The Interactive Computer Service, to which one connects by dialing a phone call, does not exist anymore.
That does not move the ball.
You are not going to make any headway with an assertion that a court MUST 1g n0re something that you want the court to Declare “obs0lete.”
Your better path is simply urge the court that they MUST apply the law (even if it IS 0bs0lete) if the law is still on the books, and then distinguish your situation from the 0bs0lete law.
This is where (I think) you run into LR’s disagreement with your construing of the terms in the law to be locked into a state of technology, as opposed to reading the law in a more “technology-equivalent” manner (which may be undertaken given the Context of the law at its writing [and in a sense, NOT getting hung up on ultra fine technical details]).
To be honest, in the 12 documents, which I filed, we did not argue obsolescence because we were not sure how to make the argument.
I focused on:
1. Title II of the 1964 CRA,
2. the Reconstruction Civil Rights Statutes;
3. caselaw based on logical fallacy along with Article I Section I; and
4. statutory federal telecommunications common carriage law versus common law Massachusetts common carriage law in the context of Article VI, Paragraph 2, and the 10th Amendment.
If the Court of Appeals for the Federal Circuit revives the case, we will add the issue of the differences between a 1996 Interactive Computer System external to the Internet and a 2022 social medium platform within the Internet into an Amended Complaint. (The case was dismissed without prejudice. I can also file the case anew.)
At present, we hope the Court will provide guidance with respect to Section 230 caselaw for the First Circuit. (If the guidance is helpful, the case will become attractive to an attorney that would be willing to work on contingency.)
The First Circuit has not been much involved with Section 230 caselaw, but Martin (the deceased attorney), Olivia, and I wanted to provide the Court of Appeal for the First Circuit with an irresistible opportunity to weigh in on one of the most contentious legal issues of the last 10 years. Martin was good at this sort of strategy.
We agree with Florida that state actor doctrine is also an issue because social medium platforms are developing exclusionary state actor technology. We will try to work the state actor issue into the Amended Complaint.
Can you explicate…?
“developing exclusionary state actor technology.”
My understanding is that the implicating factor is NOT technology, but instead is related to actions taken in agreement with the government, in essence, implicating agency action of censorship that the government MAY NOT carry out directly.
By the by — the now rescinded (and absolutely atrocious idea to begin with) Department of Homeland Security Ministry of Truth (Disinformation Board) was to be a weapon1zed arm of such “working together.”
That NONE of the usual Liberal Lefts here did NOT expresss any concern (at all) — you want to talk about over the top Authoritarianism???? — is very telling.
I have not seen a government website add a Twitter DM (Direct Message) chat to its website, but Twitter is encouraging everyone and every entity to use a Twitter DM chat on his website.
It seems a quick and dirty way for Twitter to become a State Actor — A Shake and Back State Actor so to speak. You might wish to skim this webpage.
Twitter seems to encourage a state or a federal agency to use Twitter DM for website chat instead of developing its own chat system — in other words Twitter holds itself out simultaneously as state actor and as a common carrier — DM is obvious message common carriage. Where does not this situation leave Olivia & Me? We are excluded from practically every social medium because Zionists don’t like our engagement and mobilize to report us for violating community standards.
A conservative, who is excluded from social mediums because some organized group does not like him, is in the same boat because of community standards exclusion. Twitter is not the only social medium that encourages adding this sort of functionality to a website.
I did not look at this sort of functionality in my Original Complaint because Olivia mostly uses social medium platform common carriage, but maybe I should have looked more at the state actor functionality that a social medium platform holds out.
It’s the problem of social medium intertwining of a service or a functionality class with another service or functionality class. It’s probably time to start addressing a quasi-state actor along with a quasi-common carrier. It’s probably also time to start addressing a quasi-hybrid common carrier/state actor. I think this concept could be explained to a judge or to a jury. I have explained a much more complex telecommunications common carriage issue to the FCC than SB 7072 addresses.
After an hour or so of thought, SB 7072 begins to seem like a much more reasonable law and possibly like a necessity for the sake of the US political system. Social mediums are in the process of creating a serious political crisis. Kudos to Governor De Santis and to his followers for identifying the problem!
Skimmed the page – doesn’t help your case.
Also, if you are going to leverage Florida — make sure you learn the (active) lessons available there.
I did not argue state actor doctrine in my case because the issue did not occur either to Olivia or to me. It might eventually have occurred to Martin, our civil rights attorney, but he died.
I suspect that by encouraging the federal government or a state government to use DM, tweet, or text service, a social medium platform becomes a state actor through control of a public state forum. Even more to the point, the social medium platform is using its role in a government chat session/government public state forum to collect valuable personal data from the users.
Olivia and I excluded from a social medium platform because of our miscegenation (by Zionist standards). If we are excluded from a government chat/public state forum, the social medium platform, which acts on behalf of the government, violates our 5th and 14th Amendment rights.
See Burton v. Wilmington Pkg. Auth, 365 U.S. 715, 81 S. Ct. 856 (1961) [pre-1964 CRA].
The case, Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 121 S. Ct. 924, 148 L. Ed. 2d 807 (2001), seems less on-point.
Constitutional scholar, Gillian Metzger, states the following.
When you contemplate, “suspect that by encouraging the federal government or a state government to use DM, tweet, or text service, a social medium platform becomes a state actor through control of a public state forum.”
You don’t quite make it there.
Now IF that were the only way to reach that state entity, you might have a case — but merely being one of many avenues won’t get you to that place that you want to be.
On the other hand, if even by a “volunteer” agreement, if a social media sight does not apply its own rules evenly and shades to the controlling party’s narrative (yes, some say this is propaganda), then you DO have a private entity in concert with the government doing FOR the government what the government is forbidden to do on its own, and THAT would make the social media entity into a State Actor.
I think this does implicate the Constitution. I’d have to read some more cases but the problem here is that FB (and it has done so) can provide a forum for your opponents to defame you and then when others try to defame your opponent they are removed or their content is removed.
There are legal remedies for defamation — against the person making the defamation. Section 230 provides protection to internet platforms — only with respect to third-party content that they (i.e., the internet platform) did not aid in developing. Section 230 does not just apply to Twitter and Google but any entity that operates an online space where third parties may post content. This website would be an example of someplace that enjoys Section 230 protection.
I think you are not accurately characterizing the issue of allowing one party to defame a second party and not allowing the second party to defame a first party. One can go on FB, Twitter and plenty of other websites and find plenty of defamatory statements — on both sides of the aisle.
However, what will get someone in trouble is that if the violate the terms of service. For example, Twitter has a “Hateful conduct policy” and a “Glorification of violence policy” as well as a “Child sexual exploitation policy.” There is an extensive number of policies. As of April 2022, there is a “Private information and media policy” in which “You may not publish or post other people’s private information without their express authorization and permission. We also prohibit threatening to expose private information or incentivizing others to do so.”
Plus, you get the government action where the federal government has been twisting the arm of FB and Twitter with threats of anti-trust action or resending 230, and you have real Constitutional issues.
Both sides of the aisle have “been twisting the arm of FB and Twitter.” Governments twist the arms of corporations all the time — even before there was an internet. For example, Florida has been twisting Disney’s arm. That doesn’t make the government actors. And as I pointed out elsewhere, the most famous banning of an individual by the “internet platforms” occurred while that particular individual was head of the executive branch. How can the government be controlling these internet platforms when the head of the government was banned?
FB and Twitter may be subject to other statutes for denial of service
I don’t believe one’s political party is a protected class. Companies get to choose who they want to deal with all of the time. That being said, the governor of Florida still has his twitter account as well as the House Minority leader and the Senate Majority Leader. MTG, of all people, still has her Twitter account.
That would not be Constitutional to remove a person’s ability to sue for defamation.
The ability to sue for defamation is NOT contained in the US Constitution. In actuality, the 1st Amendment has been used to limit the applicability of defamation law since defamation law can have a chilling effect on free speech. Who knows, maybe the Supreme Court is in a mood to get rid of a bunch of old precedent these days. While there are some on the current Court that would like to get rid of New York Times Co. v. Sullivan, I think it is unlikely that they will find 5 votes to get rid of the precedent.
WT, nah. You don’t get it.
I understood everything you objected to. The issue is why can’t one sue FB for defamation when they curate content to allow defamation against you but remove content that defames your opponent. Plus these could be bots. Get it? FB becomes a publisher by excluding some content and not others.
The issue is simple to understand. And, yes your right to defamation arises under English Common law, which was incorporated into the Constitution. In effect, the way 230 is being used by FB, it is a law permitting FB to defame a person. You have to think about that, though, WT. FB becomes a publisher by the act of selecting which content remains on the site when the selection is not purely based on an objective standard of breaking rules of FB.
We know from the numerous news stories that FB has been performing curation based on political biased and, thus, FB is a publisher and should be liable for defamation.
There is definitely something to this.
In effect, the way 230 is being used by FB, it is a law permitting FB to defame a person. You have to think about that, though, WT. FB becomes a publisher by the act of selecting which content remains on the site when the selection is not purely based on an objective standard of breaking rules of FB.
Actually, the Supreme Court’s application of 1st Amendment law is what will prevent FB/Twitter from being successfully sued for defamation in many instances. Under New York Times v. Sullivan, which I referenced above, the Supreme Court requires “actual malice” for defamation suits against a public figure. That is going to be hard to prove if FB/Twitter does not actually generate the content. If you want to see how this plays out, look at Sarah Palin’s case against the NYT.
There is a long-recognized tension between the 1st Amendment and defamation law that has been addressed in a multitude of court decisions. And in a great many instances, the Court has leaned in favor of the 1st Amendment. To be clear, in application, Section 230 is more consistent with 1st Amendment law than it is with defamation law.
The expansive application of the 1st Amendment makes the US very different from many countries. In China, if you post a picture of Winnie the Pooh (as a veiled reference to President Xi), it gets censored. In Russia, if you say something negative against the armed forces, you can get imprisoned. In Thailand, if you say something bad about the king, you go to prison. However, in the US, you can go on Twitter and write ‘#46 drinks the blood of children’ and not be banned. I made this up, but if you go on Twitter right now (i.e., June 6, 2022) you can find posts and even (doctored) videos on this very point. I did the search about 2 minutes ago.
What you think goes on at Twitter and FB is likely very different than what actually goes on.
WT, you are changing the goalposts. The issue is whether 230 is negated because of FB curating content based on a bias? And is 230 unconstitutional in that it permits a social media platform to commit defamation?
Whether a defamation case would be tough or not without 230 is not at issue. But I will note that actual malice is only needed when the person is famous.
Anyway, we’ll see what happens with this. My bet is that 230 is going down in view of FB and Twitter using political biases to curate content. Both FB and Twitter are publishers and should be liable for all the content on their sites.
Both FB and Twitter are publishers and should be liable for all the content on their sites.
For the third time, why? What social goal is advanced by holding Twitter liable if I defame you in a Tweet? I can understand what social good is achieved by holding me liable, but what good does it do to hold Twitter liable?
Is the goal here just to put social media companies out of business? I can cheerfully get behind that policy (they are mostly pernicious), but creating convoluted liability structures vis-a-vis defamation law seems an oddly complicated way of achieving that end. Surely it would be simpler just to tax them into submission.
Greg, the goal is the rule of law.
230 has set up a situation where a publisher can defame you with impunity. The point is to restore people’s rights to sue for defamation.
Greg is still gaslighting you with a “what’s the issue?” viewpoint.
“For the third time, why?”
He’s been answered repeatedly. He happens to NOT LIKE that answer though because it does not fit with the Liberal Left desired narrative.
Imagine §230 does not exist. Why—in such a world—would it make sense to assign liability to Twitter for something that I Tweet? What social good is advanced by making Twitter liable for my bad behavior?
^ ^ ^
What issue?
Why—in such a world—would it make sense to assign liability to Twitter for something that I Tweet? What social good is advanced by making Twitter liable for my bad behavior?
It doesn’t make sense, and there is no social good being advanced. But (thankfully) you already knew that. The goal is to either force Twitter/FB to censor everything, which would go a long ways to driving them out of business, or to have them censor next to nothing, which would go a long ways to driving them out of business.
@Greg DeLassus, because of Stratton Oakmont, Inc. v. Prodigy Servs., undefined (N.Y. Sup. Ct. May. 24, 1995), Congress felt the need to clarify the nature of publisher liability in the context of the World Wide Web, which is explicitly referenced in this case.
When I make a post or a comment on a Web site, I transmit a text message from my computing device to a backend server via an HTTP POST or via an HTTP PUT request. This text message is stored in secondary storage on a server.
Later when another user does an HTTP GET request to tell the backend server to transmit to his computing device the web page, with which the text message has been associated, the software on the server creates a formatted document, which is transmitted to the user. The user’s browser receives the formatted document and places the document on the user’s screen according to the directives contained in the document.
The operations above are automatic and not under human control at the backend where the server resides. Yet the operations have a strong similarity to the actions of a newspaper publisher or of a book publisher.
Congress was trying by means of Section 230 to tell the Courts
1. that the 1996 Interactive Computer Service was to considered in the class of a newspaper stand or in the class of a bookstore and
2. that the 1996 ICS does not bear publisher liability for automatic operations that have similarity to traditional publisher operations.
And is 230 unconstitutional in that it permits a social media platform to commit defamation?
Seriously, bone up on Constitutional law.
But I will note that actual malice is only needed when the person is famous.
Famous is not the standard. Again, read up on the law.
Both FB and Twitter are publishers and should be liable for all the content on their sites.
Seriously, you don’t see how that ends? If what you are asking for comes to pass, then any site that allows comments (including the one we are typing on right now) would be liable for anything written in the comments. Is your intent to shut down everything? Can you not see the ramifications of what you are asking for?
The alternative, as proposed by HB20, is no curation whatsoever (or very, very limited curation). Do you want to come across porn or videos of animals being butchered or jihadist diatribes in your FB feed? No curation means no curation.
Do you want to come across porn or videos of animals being butchered or jihadist diatribes in your FB feed? No curation means no curation.
The real wierdness is that this already exists, for those who want such things. You can already find fora on (e.g.) Reddit, where there is no moderation and no curation. If conservative influencers really want such an internet space, it is not hard to find it.
They are fighting so hard to be allowed to post on Twitter and FB precisely because those fora attract so many more eyeballs. But their attractiveness derives precisely from the curation and active moderation. If you take those away, then you are simply back in the world of Reddit—which is fine, if that is what you want, but that already exists even with §230 in place.
I am perfectly capable of setting up filters for myself and for my kids.
The social medium platforms are trying to suppress pro-Pales tinian voices on social medium platforms so that US Zio nists escape the consequences of violating US federal criminal anti-genocide and anti-terrorism law.
The Internet is a vast federally supported facility, establishment, or (possibly) functional place of public accommodation for resource sharing. The social medium platforms must obey anti-discrimination law with respect to public accommodation, with respect to civil rights, and with respect to common carriage.
The social medium platforms must be slapped down hard for violating federal and state anti-discrimination law.
This should probably be stressed:
“when the selection is not purely based on an objective standard of breaking rules of FB.”
There is a difference when shaping content (or a narrative) involves “extra-rules” or even sham rules, that are simply not applied in an objective measure — especially when the various editorial features (again, these are more than mere expungement or banning) SHAPE the narrative.
Section 230 tells us that an ICS is not a publisher or speaker in one specific situation. Section 230 nowhere says than an ICS is any situation a publisher, which has unfettered editorial discretion. That construction is Fourth Circuit Judge-made law and unconstitutional by Article 1, Section 1.
It is much more reasonable to interpret Section 230 (if it even applies) to give a social medium platform the status of a bookstore or of a newspaper stand.
If a social medium platform applies the terms of service in a discriminatory fashion as Olivia and I assert, the social medium violates the Reconstruction Era civil rights statutes, which still exist and are important:
1. 42 U.S. Code § 1981
2. 42 U.S. Code § 1982
3. 42 U.S. Code § 1983
If a social medium platform applies the terms of service in a discriminatory fashion as Olivia and I assert, the social medium violates the Reconstruction Era civil rights statutes, which still exist
Those particular statutes involve race-based discrimination. Granted, other federal statutes address protected classes, which include race, color, national origin, religion, sex, age, or disability. However, one’s politics are not a protected class. The 1st Amendment also has been long held to include a “freedom of association.” This also includes a right NOT to associate with others. Thus, one does not have to associate with others that they, for example, politically disagree with.
The Supreme Court distinguishes regulating conduct in interstate commerce
1. from abridging freedom of expression,
2. from abridging freedom of the press, and
3. from abridging the right of the people peaceably to assemble.
There is no explicit right in the Constitution for a person to decide with whom he will associate.
Because of Title II of the Civil Rights Act of 1964, a white restaurateur may not refuse to serve a non-white like my fiancée even though serving a customer is associating with the customer.
You misread 42 U.S. Code § 1981, which Section 1 of the 14th Amendment enables. Section 1 does not refer to a specific race.
If a social medium platform gives license under its terms of service to white citizens to express political opinions, with which the social medium platform disagrees, it must give the same license to all white citizens to express political opinions, which which the social medium platform disagrees.
The 14th Amendment and the Civil Rights Laws, which it enables, protect all US citizens — not only non-whites.
You are closer here – and note my earlier message at 15.4.1.2:
link to patentlyo.com
“But there is something wrong with 230 when it is coupled with active curation of content that is biased. (It is weird that the tribal thinkers who now believe that FB and Twitter are on their side defend this. Just a complete loss of rational thought on their part).”
Heard that, all these corps openly stating that they are curating need to lose 230 protections. I’m surprised nobody has used this against twitter yet in the ongoing brewhaha.
Millions of taxpayer dollars wasted by Texas.
When is Paxton going to trial on those felonies
I am not aware of which felonies you speak of – can you elucidate?
Still no trial, 7 years on…
link to nbcdfw.com