Supreme Court Signals Loud And Clear That Social Media Sites Are Not Public Forums That Have To Allow All Speech

from the well-that's-a-nice-surprise dept

Last fall I wrote about the Supreme Court agreeing to hear a case that some argued would allow the Supreme Court to declare that social media sites were public forums thereby limiting their ability to block or ban certain users. A key argument brought forth by many who have been kicked off of various social media platforms is that under a strained reading of both the Pruneyard case (a very narrowly ruled case, establishing malls as public forums) and the Packingham case (which said states cannot create laws that ban people from the internet), is that social media platforms like YouTube, Facebook and Twitter are some sort of quasi-public forums, and therefore the 1st Amendment applies to them as state actors… and therefore they can’t ban anyone or block content. This has never made much sense, and required a pretty twisted reading of those other cases — but there was some thought that this new case might allow the Supreme Court to weigh in on the subject.

The details of the case are a bit involved — and you can read the original post for more details — but the short version is that two producers were fired from a public access channel, Manhattan Neighborhood Network, for criticizing MNN. The two fired producers, DeeDee Halleck and Jesus Melendez, argued that this violated the 1st Amendment, because MNN was set up by New York City’s government, as required by New York State. Thus, there was a strong argument that MNN was a public forum, given the state’s role in creating it. The 2nd Circuit agreed that it was a public forum and MNN appealed to the Supreme Court, raising the specter that if the ruling were allowed to stand, it could end up being applied to the various social media platforms as well, creating quite a mess.

As I wrote in my post about it, this seemed like a stretch as well, since the state’s role in creating MNN was a key factor here, and that was not at all true with social media platforms. I also thought that the Supreme Court would likely rule narrowly and avoid the issue of social media platforms altogether — though, given the political climate, I feared that the Supreme Court would say something stupid on this and create a new mess. Instead, the ruling, which came out earlier this week, went in the opposite direction. While the ruling itself doesn’t directly apply to social media, the Supreme Court actually reversed the 2nd Circuit ruling that declared MNN a public forum, and very strongly hinted that it’s ridiculous to think social media platforms could be considered public forums. And, for all the so-called “conservatives” who have been the most vocal in promoting the theory that social media sites are public fora governed by the 1st Amendment, it might surprise them to find that it was the so-called “conservative Justices” who decided this one, with Kavanaugh writing the opinion, joined by Roberts, Thomas, Alito and Gorsuch — and Sotomayor writing the dissent, joined by Ginsburg, Breyer and Kagan.

Indeed, hysterically, it appears that a key argument made by the majority to argue against a finding of a public forum is one from one of the “conservatives” currently suing a platform. Stay tuned for that tidbit. But first, the decision itself. I was wrong in expecting the court to uphold the 2nd Circuit’s ruling (and my fear was that they would apply it in a way that was too broad). But Kavanaugh and the majority make it clear that they see public forum doctrine to be very, very, very limited. And it doesn’t apply to a public access TV network, even one created by the state.

Under the state-action doctrine as it has been articulated and applied by our precedents, we conclude that operation of public access channels on a cable system is not a traditional, exclusive public function. Moreover, a private entity such as MNN who opens its property for speech by others is not transformed by that fact alone into a state actor. In operating the public access channels, MNN is a private actor, not a state actor, and MNN therefore is not subject to First Amendment constraints on its editorial discretion.

The key to Kavanaugh’s ruling is that to make a private entity a public forum, it needs to take over “powers traditionally exclusively reserved to the State.” The “exclusively” part is what the majority focuses on.

It is not enough that the federal, state, or local government exercised the function in the past, or still does. And it is not enough that the function serves the public good or the public interest in some way. Rather, to qualify as a traditional, exclusive public function within the meaning of our state-action precedents, the government must have traditionally and exclusively performed the function.

The Court has stressed that ?very few? functions fall into that category…. Under the Court?s cases, those functions include, for example, running elections and operating a company town…. The Court has ruled that a variety of functions do not fall into that category, including, for example: running sports associations and leagues, administering insurance payments, operating nursing homes, providing special education, representing indigent criminal defendants, resolving private disputes, and supplying electricity.

And, the majority says, running a TV station also does not qualify.

The relevant function in this case is operation of public access channels on a cable system. That function has not traditionally and exclusively been performed by government.

And that’s pretty much the ballgame for those arguing for a public forum designation even for this public access channel created by the state. However, Kavanaugh does go further in highlighting why it would be ludicrous to argue that social media sites, for example, would qualify and be subject to the 1st Amendment. As the opinion notes, just hosting a forum for speech does not magically turn you into a government actor hosting a “public forum.” And then Kavanaugh goes even further, directly saying that a private entity can moderate all they’d like:

By contrast, when a private entity provides a forum for speech, the private entity is not ordinarily constrained by the First Amendment because the private entity is not a state actor. The private entity may thus exercise editorial discretion over the speech and speakers in the forum. This Court so ruled in its 1976 decision in Hudgens v. NLRB. There, the Court held that a shopping center owner is not a state actor subject to First Amendment requirements such as the public forum doctrine….

The Hudgens decision reflects a commonsense principle: Providing some kind of forum for speech is not an activity that only governmental entities have traditionally performed. Therefore, a private entity who provides a forum for speech is not transformed by that fact alone into a state actor. After all, private property owners and private lessees often open their property for speech. Grocery stores put up community bulletin boards. Comedy clubs host open mic nights. As Judge Jacobs persuasively explained, it ?is not at all a near-exclusive function of the state to provide the forums for public expression, politics, information, or entertainment.?

And just to drive the point home:

In short, merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints.

If the rule were otherwise, all private property owners and private lessees who open their property for speech would be subject to First Amendment constraints and would lose the ability to exercise what they deem to be appropriate editorial discretion within that open forum. Private property owners and private lessees would face the unappetizing choice of allowing all comers or closing the platform altogether. ?The Constitution by no means requires such an attenuated doctrine of dedication of private property to public use.? … Benjamin Franklin did not have to operate his newspaper as ?a stagecoach, with seats for everyone.? … That principle still holds true. As the Court said in Hudgens, to hold that private property owners providing a forum for speech are constrained by the First Amendment would be ?to create a court-made law wholly disregarding the constitutional basis on which private ownership of property rests in this country.? … The Constitution does not disable private property owners and private lessees from exercising editorial discretion over speech and speakers on their property

This is less important to the point we’re discussing here, but if you’re wondering why the majority said that even when the state creates the public access channel by law, it does not become a public forum, Kavanaugh explains that this would open up way too many charges of other private entities that require government licensing being charged as a public forum:

Numerous private entities in America obtain government licenses, government contracts, or governmentgranted monopolies. If those facts sufficed to transform a private entity into a state actor, a large swath of private entities in America would suddenly be turned into state actors and be subject to a variety of constitutional constraints on their activities. As this Court?s many stateaction cases amply demonstrate, that is not the law.

And it is noteworthy that the majority opinion makes it clear that some public access channels, if actually operated by the government, could count as a public forum, subject to the 1st Amendment. It just doesn’t think MNN meets that criteria.

Now, here’s the ironic bit. Kavanaugh concludes the opinion with the following:

It is sometimes said that the bigger the government, the smaller the individual. Consistent with the text of the Constitution, the state-action doctrine enforces a critical boundary between the government and the individual, and thereby protects a robust sphere of individual liberty. Expanding the state-action doctrine beyond its traditional boundaries would expand governmental control while restricting individual liberty and private enterprise. We decline to do so in this case.

MNN is a private entity that operates public access channels on a cable system. Operating public access channels on a cable system is not a traditional, exclusive public function. A private entity such as MNN who opens its property for speech by others is not transformed by that fact alone into a state actor. Under the text of the Constitution and our precedents, MNN is not a state actor subject to the First Amendment.

Cornell Law professor Michael Dorf found that first sentence that I bolded above a bit odd, as Kavanaugh doesn’t quote that line, but just says “it is sometimes said.” So he went hunting for where that quote originated, and it turns out that it originated with Dennis Prager.

Remember Dennis Prager? He was actually one of the first to file a lawsuit making the ridiculous claim that YouTube is a public forum, subject to the First Amendment (after YouTube put just a small percentage of his videos into “restricted mode” and Prager freaked out, claiming “anti-conservative bias” despite the fact that YouTube put a far higher percentage of videos on what most people would consider to be more “liberal” channels into the very same restricted mode). Prager’s lawsuit was laughed out of court, but it is still cited all the time by people who claim (1) anti-conservative bias by the platforms, and (2) that platforms are a public forum, and therefore subject to the First Amendment. Indeed, this is from Prager’s original complaint:

Despite their control and regulation of one of the largest forums for public speech and expression in California, the United States, and the world, Google/YouTube regulate and censor speech as if the laws governing free speech and commerce do not apply to it. In so doing, Defendants believe that they have unfettered, unbridled, and unrestricted power to censor speech or discriminate against public speakers at their whim for any reason, including their animus toward and political viewpoints of their public users and providers of video content, because Defendants are for profit organizations rather than governmental entities.

Google/YouTube are wrong. As the California Supreme Court has stated: ?[t]he idea that private property can constitute a public forum for free speech if it is open to the public in a manner similar to that of public streets and sidewalks? has long been the law in California. Fashion Valley Mall, LLC v. N.L.R.B. (2007) 42 Cal.4th 850, 858. The United States Supreme Court also recognized more than a half-century ago that the right to free speech guaranteed by the First Amendment to the United States Constitution can apply even on privately owned property. One of the most important places to exchange and express views is cyberspace, particularly social media, where users engage in a wide array of protected First Amendment activity on any number of diverse topics. And because the ?[i]nternet?s forces and directions are so new, so protean, and so far reaching,? however, the U.S. Supreme Court warned that the law must be conscious that what it says today about the characteristics of a forum or free speech medium may be obsolete tomorrow. See Packingham v. North Carolina, 137 S.Ct. 1730, 1735-38 (2017).

So, boy, is it ever ironic that in a Supreme Court ruling that completely and utterly debunks Prager’s own legal theory, the “conservative” wing of the Supreme Court quotes (without citation) a line from Prager to defend why Prager is laughably wrong. That’s delicious.

Oh, and just in case the folks arguing that social media is a public forum think the dissenting “liberal” judges might save them here, that’s not going to fly either. From Sotomayor’s dissent:

In addition, there are purely private spaces, where the First Amendment is (as relevant here) inapplicable. The First Amendment leaves a private store owner (or homeowner), for example, free to remove a customer (or dinner guest) for expressing unwanted views…. In these settings, there is no First Amendment right against viewpoint discrimination.

So, uh, yeah. If you’re arguing that private platforms like Facebook, YouTube and Twitter are magically “public fora” even as the Supreme Court is rejecting that designation for a public access channel that was literally created by the state, suffice it to say that you’re argument is not going to go very far.

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Comments on “Supreme Court Signals Loud And Clear That Social Media Sites Are Not Public Forums That Have To Allow All Speech”

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180 Comments
Thad (profile) says:

And, for all the so-called "conservatives" who have been the most vocal in promoting the theory that social media sites are public fora governed by the 1st Amendment, it might surprise them to find that it was the so-called "conservative Justices" who decided this one, with Kavanaugh writing the opinion, joined by Roberts, Thomas, Alito and Gorsuch — and Sotomayor writing the dissent, joined by Ginsburg, Breyer and Kagan.

Ken White said something — I think it was on last week’s All the President’s Lawyers — to the effect that there’s a difference between being a conservative judge and being a partisan conservative.

There’s certainly overlap between the two things, but I think a big part of the difference comes down to perspective. Elected officials have to worry about public opinion and the next election; people with lifetime appointments don’t. While I certainly don’t agree with every justice on the court every time, I do think that they’re all very good at abstract, long-term thinking. They’re not always perfectly consistent, but they’re less likely to shift their positions depending on which party is currently in control than elected officials are.

That One Guy (profile) says:

'Now go away or we shall taunt you a second time.'

With all the bad news on a regular basis, nice to see a good legal ruling for once. I imagine it will be promptly ignored and/or spun by the usual tools here and elsewhere, but given how explicit the ruling is that platforms can indeed engage in moderation and/or choose who to allow their platform, and that simple involvement with the government doesn’t change that, they’re going to have quite the uphill battle there arguing against property rights, the first amendment, and now a ruling by the US Supreme Court.

As an added bonus if they’re willing to make such a strong stance in this ruling I’d imagine any attempt to enforce ‘political equality’ on online platforms would face a similar fate, such that any attempt to undermine or re-write 230 along those lines would be DOA and nothing but PR(which is not to say that the politicians wouldn’t do it, just that the damage would likely not be too bad before it was struck down).

btr1701 (profile) says:

Re: 'Now go away or we shall taunt you a second time.'

they’re going to have quite the uphill battle there arguing against property rights, the first amendment, and now a ruling by the US Supreme Court.

I agree with the Court’s analysis and ruling and would have lamented the decision as a dark day for private property rights if it had gone the other way, however, I do think it’s rather odd that the same people who clutch their pearls and run for the fainting couch over Russian use of American social media to undermine elections and decry it as a imminent threat to democracy and the survival of the Republic as we know it, don’t seem to think a handful of billionaires in Silicon Valley with their fingers on the scales of the very algorithms which make those platforms run are anything to worry about.

Anonymous Coward says:

Re: Re: 'Now go away or we shall taunt you a second time.'

"the same people who clutch their pearls and run for the fainting couch over Russian use of American social media to undermine elections and decry it as a imminent threat to democracy and the survival of the Republic as we know it, don’t seem to think a handful of billionaires in Silicon Valley with their fingers on the scales of the very algorithms which make those platforms run are anything to worry about."

From where do you get this impression? Who exactly is guilty of such an oversight? Who clutches their pearls?

What do you think about a sitting president worried about the upcoming election asking foreign governments for dirt on the opposition? What about foreign campaign contributions?

btr1701 (profile) says:

Re: Re: Re: 'Now go away or we shall taunt you a second time.'

From where do you get this impression?

From the last two years of chest-thumping calls by politicians for investigations into ‘Russian meddling’.

Who clutches their pearls?

Everyone who’s been going nuts over ‘Russian meddling’ for the last two years. Hell, Nancy Pelosi recently accused Facebook of treason for being a voluntary accomplice to the efforts of the Russian state.

What do you think about a sitting president worried about the upcoming election asking foreign governments for dirt on the opposition?

Whataboutism.

Anonymous Coward says:

Re: Re: Re:2 'Now go away or we shall taunt you a second time

Hell, Nancy Pelosi recently accused Facebook of treason for being a voluntary accomplice to the efforts of the Russian state.

You can thank the orange retard that half of the morons in this country support for setting the example:

DJT: Do you believe that the Failing New York Times just did a story stating that the United States is substantially increasing Cyber Attacks on Russia. This is a virtual act of Treason by a once great paper so desperate for a story, any story, even if bad for our Country.

DJT: Well number one, The Times should never have done that, because really what they’ve done is, virtually, you know it’s treason. You can call it a lot of things. But to think that you have somebody in all of the Cabinet, so many people. You know, they came forward, they’re writing editorials. They’re all saying, you know, it’s gotta be at a fairly low level.

DJT: I mean, you look at the Washington Post or the New York Times, I can never get a good story. I mean, you look at this horrible thing that took place today, it’s really — is it subversion? Is it treason? It’s a horrible thing. Even — you know the good thing about that? Even liberals that hate me say that’s terrible what they did. And it is really terrible.

Surely you don’t think one side should be able to throw that word around like a monkey flinging shit, while the other side has to abide by traditional meanings, do you?

andybisct (profile) says:

Re: Re: 'Now go away or we shall taunt you a second time.'

It’s not that I don’t see the potential for harm. It’s that the US Constitution does not provide for the problem to be solved in the form of co-opting private property for public use (without, perhaps, an eminent domain "taking").

This clarifies an important point: The first amendment restricts the government. It does not restrict private behavior. In some future years, this will be looked back on as the right decision.

It’s not to say that the problems of oligarchs being in charge of the mainstream channels of mass communication aren’t important. It’s simply that if you want to get to Dublin, you can’t start from here.

Ruth 'Lesley' N. Force says:

Kavanaugh warned ... decision should not be read "too broadly."

Therefore, channel operators cannot be sued for violating the First Amendment guarantee of free speech. At first blush, at least, the decision would seem to preclude First Amendment lawsuits against private platform operators, like Twitter and Facebook, though Kavanaugh warned that the decision should not be read "too broadly."

https://www.npr.org/2019/06/17/733408135/supreme-court-justices-split-along-unexpected-lines-in-three-cases

YOU are of course doing exactly that. ‘Nuff said, since you’re irredeemably FOR corporate control.

I have not waded into the details: doesn’t matter!

The SC is entirely capable of splitting hairs so that one cable TV channel (created by state law) isn’t a Public Forum, but nation-wide corporations by Federal law CDA Section 230 DOES.

If Kavanaugh’s hedge and hope is ALL I have, fine! It still don’t make YOU right. You are definitely NOT supporting The Public on this.

Ruth 'Lesley' N. Force says:

Re: Re: Re: Kavanaugh warned ... decision should not be read "too broadly."

So freedom of private speech, outside of government control is now fascism?

No, but a mere statute that appears to over-ride the Constitution and confer power to control YOUR speech on nearly all the outlets of the modern world, IS exactly FASCISM.

I think those alt-right circle jerks you attend are taking a toll on your senses Blue Balls. But your mid-west nazi values will guide you so keep on posting.

You could be banned from Twitter / Facebook / Google for what you wrote right there. Is that the world you want? Remember, those corporations may not always be on "your" side.

And by the way, thanks for confirming that you ARE astro-turfing by Timothy Geigner, aka "Dark Helmet", as shown by your emphatic contempt with "Blue Balls" that you really shouldn’t have the emotion for.

Anonymous Coward says:

Re: Re: Re:2 Kavanaugh warned ... decision should not be read "too broadl

You could be banned from Twitter / Facebook / Google for what you wrote right there. Is that the world you want? Remember, those corporations may not always be on "your" side.

Sure! I’ll start my own social network! With blackjack! And hookers!

In fact, forget the social network!

Stephen T. Stone (profile) says:

Re: Re: Re:2

No, but a mere statute that appears to over-ride the Constitution and confer power to control YOUR speech on nearly all the outlets of the modern world, IS exactly FASCISM.

This would mean something if Twitter could control your speech here. But it can’t. So…yeah…

You could be banned from Twitter / Facebook / Google for what you wrote right there. Is that the world you want? Remember, those corporations may not always be on "your" side.

So what? Those platforms have the absolute right to ban people for posting anything said platforms don’t want to host. If Twitter and Facebook ban me for a certain kind of speech that YouTube didn’t ban me for using, well, tough shit for me.

Gary (profile) says:

Re: Re: Re:2 Kavanaugh warned ... Troll not!

No, but a mere statute that appears to over-ride the Constitution and confer power to control YOUR speech on nearly all the outlets of the modern world, IS exactly FASCISM.

Yeah, no, that is exactly not the definition of Fascism. Fascism is total control of the people by the government.
This isn’t a "Mere Statute" it’s Common Law as handed down by the highest court in the land.

But your mid-west nazi values will guide you so keep on posting.

You could be banned from Twitter / Facebook / Google for what you wrote right there. Is that the world you want? Remember, those corporations may not always be on "your" side.

And I could be kicked out of the public library (a public place) for shouting obscenities. Your point?
Twitter has a TOS. The Library has a TOS. TD has a TOS.
You can’t run a service without any sort of TOS.

Or – Maybe YOU can. Please – show us how a website is run without moderation?

And by the way, thanks for confirming that you ARE astro-turfing by Timothy Geigner, aka "Dark Helmet", as shown by your emphatic contempt with "Blue Balls" that you really shouldn’t have the emotion for.

I’m not Tim.
But thanks for replying! You haven’t tried to reply to one of my posts in ages.
Which is a shame, I know you read every single one. (Proof – you even count them!)
"Flattered by the attention" Is what I’d say if you weren’t a white-power asshole.

But since I have your attention however briefly – let’s go over my list of questions:
TD is doing it wrong. So show us how YOU do it better – where is your site? Where are your articles?
Have you finished your manifesto on Cabbage Law yet? Because we’ve clearly demonstrated that it differs from actual Common Law.
Why do you hate government so much, and yet LOVE the government control of speech in Copyright?

PaulT (profile) says:

Re: Re: Re:3 Kavanaugh warned ... Troll not!

"You can’t run a service without any sort of TOS."

More to the point – you wouldn’t want to, because when the people start screaming like this little child, they chase away all your decent customers. Any decent place will cater to the 98% of people in the place, same as it’s always been.

Anonymous Coward says:

Re: Re: Re:2 Kavanaugh warned ...”Blue balls is an ignorant motherfucke

“You could be banned from Twitter / Facebook / Google for what you wrote right there. Is that the world you want?”

Yes and it’s the one sane people are currently living in.

“And by the way, thanks for confirming that you ARE astro-turfing by Timothy Geigner, aka "Dark Helmet", as shown by your emphatic contempt with "Blue Balls" that you really shouldn’t have the emotion for.”

Paranoid Schizophrenia is a real bitch

PaulT (profile) says:

Re: Re: Re:2 Kavanaugh warned ... decision should not be read "too broadl

"You could be banned from Twitter / Facebook / Google for what you wrote right there. Is that the world you want?"

Yes, because it’s the same world I’ve always lived in. I can be barred from any store, mall, home or office building if I act in a way that makes people not want me there. I fail to see why this is suddenly a problem because it’s a website telling you to GTFO off their property. Especially since, online, there’s nothing to stop you setting up your own community where you are welcome.

No rights are being infringed, you’re being told you’re and asshole and GFTO peoples’ private property, as it always has been. Just because you have a brief moment in time where people would tolerate your crap does not mean they’re wrong to change their mind.

Anonymous Coward says:

Re: Re: Re:2 Kavanaugh warned ... decision should not be read "too broadl

I am always amazed reading the "right" posts now days. On one hand they scream about how cake companies are private companies and should have the right to decide who they serve. But then they turn around and howl about how a private company shouldn’t have the right to decide who they allow to post.

Ruth 'Lesley' N. Force says:

Re: Re: Kavanaugh warned ... decision should not be read "too broadl

I HAVE dealt with it. Not particularly relevant to Section 230. You are ignoring other cases.

This is NOT overturned, because of the complications that those bringing the case were employees, NOT The Public:

Before the Internet, it was envisioned privately-owned cable TV companies would make air time available to the public as "the video equivalent of the speaker’s soapbox." Even though the channel and equipment used to produce the programming was privately owned, the programming fell under the 1A. The Court concluded "public access channels constituted a public forum, notwithstanding that they were operated by a private company".

https://law.justia.com/cases/federal/appellate-courts/ca2/16-4155/16-4155-2018-02-09.html

Anonymous Coward says:

Re: Re: Re: Kavanaugh warned ... decision should not be read "too br

The Court concluded "public access channels constituted a public forum, notwithstanding that they were operated by a private company".

In Davison v. Randall?

They concluded that because:

the court emphasized the extensive government involvement with, and control over, public access channels by virtue of the federal and state regulatory schemes. See id. ("[W]here, as here, federal law authorizes setting aside channels to be `the electronic marketplace of ideas,’ state regulation requires cable operators to provide at least one public access channel, a municipal contract requires a cable operator to provide four such channels, and a municipal official has designated a private corporation to run those channels, those channels are public forums." (emphasis added)).

How would any of that apply to the "nation-wide corporations" you moan about?

Anonymous Coward says:

Re: Re: Re: Kavanaugh warned ... decision should not be read "too br

because of the complications that those bringing the case were employees, NOT The Public:

Halleck and Melendez don’t appear to be employees of MNN. They’re just users of the public access service. I see that Mike says that they were "fired" but I didn’t see anything in the decision that states they worked for MNN. The language in both this decision and the original appeals court decision is confusing at times but after giving it a couple of reads, I’m fairly certain they didn’t work there.

From the decision:

DeeDee Halleck and Jesus Papoleto Melendez produced public access programming in Manhattan. They made a film about MNN’s alleged neglect of the East Harlem community. Halleck submitted the film to MNN for airing on MNN’s public access channels, and MNN later televised the film. Afterwards, MNN fielded multiple complaints about the film’s content. In response, MNN temporarily suspended Halleck from using the public access channels.

Halleck and Melendez soon became embroiled in another dispute with MNN staff. In the wake of that dispute, MNN ultimately suspended Halleck and Melendez from all MNN services and facilities.

and the NY appeal:

Plaintiffs-Appellants Deedee Halleck and Jesus Papoleto Melendez alleged that MNN, three of its employees, and the City violated their First Amendment rights by suspending them from using MNN’s public access channels because of disapproval of the content of a TV program that Halleck had submitted to MNN’s programming department for airing on MNN’s public access channel.

Really not sounding to me like they’re employees.

Ruth 'Lesley' N. Force says:

Re: Kavanaugh warned ... decision should not be read "too b

First, the cause isn’t actually 1A:

two producers — DeeDee Halleck and Jesus Melendez — were apparently fired for making critical comments about the network.

Employees aren’t actually 1A persons, but required to do the bidding of employer…

Masnick PREDICTED:

I would be shocked if this ruling has any significant impact at all.

So, that really seems like it would limit the impact of any such ruling in this case to apply more broadly to the content moderation choices of internet platforms.

But I would be absolutely shocked if the Court really rules in any way in this case that will impact social media platforms, because it’s such a stretch to read the lower court ruling that way.

Yes, I GET that you’re joyed this DOESN’T affect them, BUT you then go on to make sweeping claims that simply weren’t decided!

So by your own prior statement in the very headline: no change!

Stephen T. Stone (profile) says:

Re: Re:

Employees aren’t actually 1A persons

What in the blue hell is a “1A person”? Have you been working at Umbrella or some shit, you Wesker wannabe?

So by your own prior statement in the very headline: no change!

Which is a good thing. It means the Internet continues to operate as it did before this ruling.

Ruth 'Lesley' N. Force says:

Re: Re: Re: Kavanaugh warned ... decision should not be read "too broadl

Bad abbreviation since you’re incapable of anything so complex. In context, a "1A" person is obviously a person, not a corporation, who are the only entities actually covered by the Constitution and having "Rights".

YOU are again siding with Masnick and Mitt Romney that corporations are "persons" having Rights.

Stephen T. Stone (profile) says:

Re: Re: Re:2

a "1A" person is obviously a person, not a corporation, who are the only entities actually covered by the Constitution and having "Rights"

Like, say, two people who work for a given organization?

Also: Until the Supreme Court or an amendment to the Constitution say otherwise, corporations have First Amendment rights — regardless of how you feel about that.

Ruth 'Lesley' N. Force says:

Re: Re: Re:3 Re:

Also: Until the Supreme Court or an amendment to the Constitution say otherwise, corporations have First Amendment rights — regardless of how you feel about that.

So, by your logic, you were/are FINE with slavery and present discrimination of every kind UNTIL the Supreme Court decides?

Have you NO sense of right and wrong? Just SO wrought up in trying to win on this tiny little PUBLIC FORUM that forget all about civil rights?

By the way, DE FACTIO this is a PUBLIC FORUM. You and Masnick talk up "free speech" but then try to control it, because you’re both hateful little fascists.

Stephen T. Stone (profile) says:

Re: Re: Re:4

So

otherwording (or in-other-wordsing) — noun — summarizing a point of argument in a way that distorts the point into saying something it does not and attributes the false interpretation to the person who raised the original point; a blatant attempt to make winning an argument easier for someone who is out of their depth in said argument

Example: You will often find the phrases “in other words” or “so you’re saying” at the beginning of an instance of otherwording.

See also: strawman; the rest of the quoted paragraph

by your logic, you were/are FINE with slavery and present discrimination of every kind UNTIL the Supreme Court decides?

I acknowledge that it is the law (or, at least, not covered by the law). How I feel about that fact doesn’t change it.

DE FACTIO this is a PUBLIC FORUM.

Techdirt is a privately-owned blog with comment sections that are open to the public. Site admins are free to moderate these comments any way they wish. They have no obligation to allow comments they don’t want on this site. The government can’t force them to do it, either. Please cite the law, statute, or “common law” court ruling that says otherwise.

Anonymous Coward says:

Re:

I have not waded into the details: doesn’t matter!

So in other words, the flimsy rug you were standing on got pulled out from under you with this ruling and now you got nothing except admit you were wrong or throw a hissy fit:

If Kavanaugh’s hedge and hope is ALL I have, fine! It still don’t make YOU right. You are definitely NOT supporting The Public on this.

Guess we know which way you went. That is the closest thing to a bully getting his comeuppance and running home crying that I have seen in a long time. Sheesh.

Anonymous Coward says:

Re: Re:

I’m having a hard time getting your point. In the post above, you argue that AOL censoring content preceded the platform’s decline into irrelevance. In the post below, you mention that USENET isn’t censoring content, and that "Obviously the public doesn’t care that much," referring, I assume, to the fact that that platform has also declined into irrelevance.

So… the lesson is that all platforms decline into irrelevance when something better comes along, whether they censor or not? That’s the point I’m getting, but I don’t think that was the point you were trying to make.

Anonymous Coward says:

Re: Re: Re: Re:

Depending on how technically you define "platform," sure.

But, as we’re talking about the relationship between the relevance and degree of moderation of places where you can have a conversation online, and not about their technical attributes, it’s close enough for the purposes of this discussion.

Gary (profile) says:

Re: Re:

Okay, fine, these platforms can censor, just like many once-dominant platforms dating back to AOL in the 1990s have done, all of which preceded the platform’s decline into irrelevance due to the conversations no longer being robust.

Without moderation, your "signal to noise" ratio make the conversation useless. Imagine if every other post was Blue Balls spouting his lies, alternating with viagra ads?

Stephen T. Stone (profile) says:

Re:

All a government has to do to ensure content neutrality is tie it to Section 230 protection.

Please explain the reasoning for your belief that a platform should remain “content neutral” — which would include hosting content its admins don’t want on the platform — to retain CDA 230 protections.

Gary (profile) says:

Re: Re: Re:

Please explain the reasoning for your belief that a platform should remain “content neutral” — which would include hosting content its admins don’t want on the platform — to retain CDA 230 protections.

Everytime I hear someone crying about "Content Neutral Moderation" it’s always an Alt-Right snowflake melting down because they really just want to post swastikas.

PaulT (profile) says:

Re: Re: Re: Re:

To be fair, it’s not always just alt-right types. It’s often also racists, conspiracy theorists, homophobes and misogynists (although, yes, I know those are often the same people!), as well as vegans and snake oil salesmen.

In other words, it’s usually people who are very loud and disruptive, and often people whose self-worth appears to be based on how much they attack other people. In other words, assholes who are being kicked out of the door because they refused to leave when asked quietly.

Anonymous Coward says:

Re: Re: Re:

Please explain the reasoning for your belief that a platform should remain “content neutral” — which would include hosting content its admins don’t want on the platform — to retain CDA 230 protections.

The phone company has no editorial control, so there is precedent.

As for content neutrality, it’s similar to net neutrality in that platforms shouldn’t play favorites. It was also an IMPLIED bargain if not an explicit one ("good faith" moderation with no bias) that the tech companies didn’t honor, so now it has to be explicit rather than implied.

The whole concept of a platform is that it is separate from its content, otherwise it’s like when Westinghouse produced TV shows.

Anonymous Coward says:

Re: Re: Re:5 Re:

You are misreading the argument. Someone was trying to claim phone companies who cannot moderate, set the precedent that web sites should not moderate. I was pointing out the better analogue is a physical message board, where the owner can moderate. This has nothing to do with scale, but rather countering the ways some people try to extend net neutrality to web sites.

Stephen T. Stone (profile) says:

Re: Re: Re:

The phone company has no editorial control, so there is precedent.

The phone company is not a platform or service such as Twitter. You would be thinking of an Internet access provider such as Comcast.

As for content neutrality, it’s similar to net neutrality in that platforms shouldn’t play favorites.

By that logic, a platform could not “play favorites” between cogent conversations and spam messages. They’re both protected speech, after all.

It was also an IMPLIED bargain if not an explicit one

“Good faith” has nothing to do with supposed neutrality in content.

The whole concept of a platform is that it is separate from its content

No. No, it is not.

And you still have yet to answer a simple question, one that you and Blue Balls continually evade: For what reason should a platform such as Twitter be forced to host content that its admins otherwise would not allow on the platform? (I suspect you don’t answer it because you know any answer you can give will be a shitty one. But don’t let that stop you.)

PaulT (profile) says:

Re: Re: Re:2 Re:

"For what reason should a platform such as Twitter be forced to host content that its admins otherwise would not allow on the platform"

Most of his "friends" on there were Nazis and he feels lonely now that Nazis have been banned. The fact that he’s still able to post just confirms that he wasn’t Nazi enough, which makes him even more depressed.

Anonymous Coward says:

Re: Re: Re: Re:

The phone company has no editorial control, so there is precedent.

Are you advocating for having to listen to robocallers? Because not for nothing, blocking robocallers would be exercising editorial control.

As for content neutrality, it’s similar to net neutrality in that platforms shouldn’t play favorites.

And advocating for me having to listen to them would make you one massive asshole.

Anonymous Coward says:

Re: Re:

For those who want total free speech, there is still USENET

Ummmm… Not really.

I have in the past ran a Usenet server as an additional service to normal dial-up accounts. As the administrator, I could choose to carry whatever groups that I decided. If I didn’t want alt.pictures.porn I could have easily filtered that out from our server.

Yes there exists Usenet services that carry the full unfiltered feed, but that does not mean that every Usenet service is required to carry every group.

Also keep in mind that Usenet is a protocol (NNTP) and not a platform. As long as you can obtain a feed, anybody can setup their own Usenet server / service.

btr1701 (profile) says:

Re: Re:

For those who want total free speech, there is still USENET.

This is the one salient point you’ve made. I’m both active on Twitter and on Usenet and it’s so refreshing to be able to say whatever you like on Usenet and know that there’s no one that can kick you off it if they’re ‘offended’ by your words.

Anonymous Coward says:

Re: Re: Re:

"it’s so refreshing to be able to say whatever you like on Usenet and know that there’s no one that can kick you off it if they’re ‘offended’ by your words."

Your usenet provider can certainly kick you off, and many often do, but that just means you’d need to create another account somewhere. But it seems that fewer and fewer people report miscreants these days, so they’re not even forced into using anonymous remailers much anymore.

But are there really any usenet newsgroups still alive that are not just spam dumping grounds and troll magnets? It seems that the activists who used to police newsgroups have left long ago, along with the vast majority of users.

Anonymous Coward says:

Dissent

Oh, and just in case the folks arguing that social media is a public forum think the dissenting "liberal" judges might save them here, that’s not going to fly either.

Yeah, it sounds like the dissent was along the lines of "actually, yes, since this forum is owned by the New York City government and run under New York City regulations, it is, in fact, a public forum."

From SCOTUSblog:

Justice Sonia Sotomayor dissented, in an opinion that was joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan. Sotomayor began by observing wryly that Kavanaugh’s opinion “tells a very reasonable story about a case that is not before us.” In her view, the actual facts would lead to a very different conclusion: Because New York City has a property interest in the channels, and the state’s regulations require that the public be given access to the channels, the public-access channels are indeed a public forum. “Just as the City would have been subject to the First Amendment had it chosen to run the” channels itself, MNN “assumed the same responsibility when it accepted the delegation” to run the channels and must comply with the First Amendment.

Since the liberal justices think that Kavanaugh "tells a very reasonable story about a case that is not before" the SCOTUS, it can be inferred that if it were Facebook or Twitter before them, instead of a(n arguably) state-owned channel, the verdict would have come down unanimously on the side of the platform having the right to moderate the content being posted.

That One Guy (profile) says:

Re: Re:

No and no respectively. That they are popular and many people use them does not make them the equivalent of government owned property.

If you wanted to run with that idea you could hypothetically have a bar/club in a small town become the ‘town square’ simply because the majority of the town went there, and by that designation no longer allowed to kick people out for their speech, which I imagine most people would find just a tad unreasonable.

Bruce C. says:

A matter of priorities...

By applying this exclusivity requirement, the conservative justices open the way to free charter schools from various restrictions. After all education is not exclusively a government function.

Apparently they’re willing to sacrifice the Social media hysteria for the sake of their broader goals in defunding public education.

Anonymous Coward says:

Re: Re: Re: Re:

That article doesn’t say what you think it says. Nowhere in there does it state backpage was able to be taken down because of FOSTA/SESTA. In fact it states the exact opposite and acknowledges that backpage got taken down before it was even a law.

The article goes on to make a pretty good case for FOSTA/SESTA being a very bad law and unconstitutional, with several legal experts quoted saying the same.

You might try reading your articles before touting them as evidence to support baseless accusations.

Anonymous Coward says:

Re: Re: Re:

You’re free to leave as you swore you would on New Year’s Eve 2017, MyNameHere.

You have to wonder about people who track that type of thing.

I actually wouldn’t have returned to this site, but after I left, SIX different times, someone accused someone who wasn’t me of being me, and the only way to refute that was to return and make note of it.

They said "Beetlejuice!"

Stephen T. Stone (profile) says:

Re: Re: Re:

after I left, SIX different times, someone accused someone who wasn’t me of being me, and the only way to refute that was to return and make note of it

You’re an anonymous jackass. How could anyone have known that someone accused of being you was a different anonymous jackass? For that matter, what made you care so damn much about the smearing of the reputation of a screen name that no one can link to your real identity?

I mean, no one really knows who Ol’ Blue Balls is. We can insult him all we want. (And we do! It’s fun!) But if he left Techdirt alone, nobody here could track him down in the physical world and harass him over his bullshit. The same goes for you: Nobody here knows who you are, so you could’ve dropped your bullshit and left this site for good. That you didn’t — that you came back because you got so upset over people insulting a fictional identity no one could connect to any person behind any screen — says far, far, far, far, far more about you than it does about anyone else. And none of what is being said there is flattering.

Anonymous Coward says:

Re: Re: Re:

"Why does this site seem to agree with a few lawyers on EVERYTHING and write more about law than about tech?"
Because while virtually all the stories have a tech angle and law is extremely important to the state of modern tech, it’s also fun to trigger impotent fools like yourself.

If you think I take stuff that seriously you’re beyond being "triggered."

Anonymous Coward says:

Re: Re: Re:

Yes, there are grandstanding politicians as ignorant as you, sadly.

Yet far more powerful than you, rightly.

Keep whining.

When 230 was passed in 1996, we didn’t have social-media platforms banning conservatives (LiveAction is a good example now). Congress assumed there was no need for a bill like this, but now obviously there is, and it will pass.

It only applies to very large sites with a lot of influence, not sites like this.

Those who say 230 ensures all can speak need to include conservatives in that all, and on equal terms with the left.

Anonymous Coward says:

Re: Re: Re:

Yes, there are grandstanding politicians as ignorant as you, sadly.

And far more powerful than YOU or even Masnick. Amazing!

When 230 was passed, content neutrality wasn’t an issue, and it was assumed it wouldn’t be. Now it’s obvious that it is, so the new law is needed, and will be passed.

PaulT (profile) says:

Re: Re: Re: Re:

it was assumed Nazis wouldn’t be a problem again, yet here we are. The answer to that is not to force people to host the words of Nazis, nor to remove the free speech rights of non_nazis.

It”s a damn shame that you’re too dumb to understand this yet, but since you reject people who try to push you into the realms of reality as "fake news", what hope is there? The only silver lining is that if you do get your wish, I will no longer need to see any of your comments because you will have demanded that the forums you use no longer exist.

Anonymous Coward says:

Re: Re: Re:

That is an oxymoron, as nobody is politically neutral. Also does that mean sites run by political parties will have to carry opposing political views?

What’s wrong with that? If the platform is big enough, that’s how it should be.

The law only applies to very large social-media sites.

Anonymous Coward says:

Re: Re: Re: Re:

What’s wrong with that?

Well let’s see, that would mean that the Republican party would have to allow Democrats to speak at their events and that they would have to give equal support to Democrat candidates and Democrats would have to do the same for Republicans.

You sure you want to go down that road?

If the platform is big enough, that’s how it should be.

Explain why then.

Why should speech suddenly fall prey to government oversight when it reaches a certain threshold? That’s a direct violation of the First Amendment. And because it’s political speech it’s even worse. This is the government trying to directly control who can talk about what candidates, when, and whether or not they support them. That’s blatant government interference in freedom of speech and attempts to control the people.

The law only applies to very large social-media sites.

So what? Nobody is going to want to start another social-media site if they know that once they get big enough they are going to get controlled by the government.

Anonymous Coward says:

Re: Re: Re:3 Re:

Josh Hawley: "Think of the children! Some children have a 30 million word gap between rich and poor families. That’s a nice round number, let’s go with that for social media being too big. Any social media site with more than that many users should be required to be neutral. And we’re helping the children! Win-win!"

/s just in case.

btr1701 (profile) says:

Re: Re: Re:2 Re:

Well let’s see, that would mean that the Republican party would have to allow Democrats to speak at their events and that they would have to give equal support to Democrat candidates

I’m not disagreeing that the law is idiotic, but why do you think Hawley’s law would force the republicans to allow Democrats to speak at their events? Or to financially support Democrat candidates?

Hawley’s law only covers speech on internet platforms. It doesn’t purport to force anyone to hosting a real-world event to provide equal access, and it certainly can’t be read as requiring a political party to fund opposing candidates.

Anonymous Coward says:

Re: Re: Re:3 Re:

I think the implication is that, if it were deemed constitutional, that it would set a binding precedent that any organization (of sufficient size) that offered a platform for one viewpoint to be spoken can be required to also offer a platform to the opposing viewpoint.

And the DNC and RNC are surely large enough that they would both qualify under any rules that would catch the big social networks.

btr1701 (profile) says:

Re: Re: Re:4 Re:

I think the implication is that, if it were deemed constitutional, that it would set a binding precedent that any organization (of sufficient size) that offered a platform for one viewpoint to be spoken can be required to also offer a platform to the opposing viewpoint.

Not at all. The bill specifically only applies to internet platforms, not anyone who offers a platform in general. And even so, all it does is remove CDA 230 protections from any platform not ‘politically neutral’. It doesn’t require anyone to provide an opposing viewpoint. Since the DNC and RNC don’t rely on CDA 230 protections in order to host rallies and conventions and whatnot, it’d be no big deal if they were to lose its protections.

Anonymous Coward says:

Re: Re: Re:5 Re:

Fair point.

I’ll admit my extrapolation is a tad flawed as stated. Perhaps a better example would be any of their websites that they run that allow comments or user submissions. By definition they then couldn’t promote their own candidates on their websites without also giving equal weight to the other candidates. And not just the opposing party but also third and fourth party candidates. Not being familiar with any political party websites, I would guess they would probably get slapped for it (because they wouldn’t realize this would apply to them) and then immediately disable all comments and user submissions.

And even so, all it does is remove CDA 230 protections from any platform not ‘politically neutral’. It doesn’t require anyone to provide an opposing viewpoint.

Technically maybe not but to be ‘politically neutral’, they would absolutely have to provide an opposing viewpoint. If you think otherwise you haven’t been paying attention to the crap that has been spouted. For instance, if Facebook showed a bunch of news articles supporting Democrats but none supporting Republicans, even though they didn’t manually tell their system to do that, you don’t think Republicans would throw a fit about Facebook not being ‘politically neutral’?

Anonymous Coward says:

Re: Re:

“With Section 230, tech companies get a sweetheart deal that no other industry enjoys: complete exemption from traditional publisher liability in exchange for providing a forum free of political censorship,” said Hawley.

This just shows that Hawley, like so many other politicians, doesn’t understand Section 230.

Anonymous Coward says:

Re: Re: Re:

You could try posting your own words and having discussions with other people rather than trying to spam the site with a link and whining when it’s caught by the spam filter. You might even learn something that way.

The site was blocking posts which had no links, just points they couldn’t refute.

That One Guy (profile) says:

Re: Re: Re:2 Re:

Not entirely true, TD has filters in place to catch and block spam(of which it catches apparently 500-1000 per day), and which can occasionally catch legitimate comments.

The spam is prevented from being posted at all, everything else is let through(though it can take a bit at times), as one can clearly see by the piles of babble and insults from TD’s deranged and/or dishonest trolls.

PaulT (profile) says:

Re: Re: Re: Re:

No they weren’t, no matter what your paranoid tiny mind tells you. This is the problem – you’ve created this grand conspiracy in your head, when all it is in reality is one sad little man who doesn’t understand how spam filters work. Nobody’s laid eyes on your message yet.

Hint: while links can be part of spam, they’re not always present, especially on message boards like this. Therefore, other elements of the message are considered – IP address, for example or how many times the IP has posted in quick succession. If the filter scores a certain amount, into the filter it goes for manual review, which may take some time.

Most of your issues here can easily be solved by you learn ing the basics of technology.

TFG says:

Re: Re: Re:2 Re:

It will also trigger if you post a comment with the exact same text as the last one you posted shortly after doing so.

Source: personal experience. I ran up against that particular trigger when attempting to post something along the lines of "Please define X" a few times on different rabbit trail threads.

You’ve got to vary up the content, or guess what, the dumb filter’s gonna sweep it up for moderation.

Anonymous Coward says:

Re: Re: Re: Re:

The site was blocking posts which had no links, just points they couldn’t refute.

Wait, do you actually think that the spam filter can read your post and understand it well enough that it can know whether an argument is both provably correct and opposed to the site owner’s ideology?

Because that would be technology worth — I’m underselling this, if anything — billions of dollars.

Gerald Robinson (profile) says:

Re: Re: Re:2 Re:

I agre! One enduring test of suitability is when " just use your judgement " enters the job it can’t be automated. This has held up sense the late ’50s and still holds up today!

I do disagree as some of the forms are so large that they have become a kin to what the the public parks once were. Either you speak on them or you are not heard!

PaulT (profile) says:

Re: Re: Re:3 Re:

But, here’s the problem – they have been heard, and the people hearing what they’re saying are telling them to stop attacking other park patrons.

Some people seem to be under the delusion that free speech means freedom from the consequences of that speech. I’m sorry if the people who have been kicked off Twitter can’t understand they are the online equivalent of the drunk wino screaming obscenities at passing children, or KKK members holding a rally near a group of minorities. But, I’ve never heard "but ma freeze peach!" as a reason not to kick those guys out of public places for doing such things.

Plus, you know the reason why those sites are so big? People are whining about them instead of exercising their freedom of choice moving to places that will accept them. They have no actual monopoly, and as with preceding sites they can be killed or neutered by their customer base moving elsewhere. If the followers of the people who are kicked off the current sites are so numerous, why are they not following their fallen heroes to places they are acceptable? If they’re not so numerous, why should everybody else have to put up with them,?

Anonymous Coward says:

Re: Re: Re:3 Re:

Either you speak on them or you are not heard!

There has never, to my knowledge, been a "right to be heard."

Before Facebook and Twitter (and MySpace and Livejournal etc.), if you wanted to be heard, your best choice to be heard was to start a blog on the Internet, and to probably languish in obscurity. This is an option which still exists, and one that has always resulted in a person probably not being heard.

Before blogging platforms, your best choice was to post on USENET, and only be heard by the hardcore techies who subscribed to USENET, and, more specifically, to the very few who subscribed to the newsgroup your were posting to. This is an option which still exists, and one that has always resulted in a person probably not being heard.

Before the blogging platforms, you had to make do with booking a space on a public access TV channel, and speaking to the very few people who tuned into public access TV at that particular time. This is an option which (I think) still exists, and one that has always resulted in a person probably not being heard.

Before public access TV, you had to make your views known by radio, which runs into the same problems as TV (but probably even more limited in the range of people you’d reach). This is an option which (I think) still exists, and one that has always resulted in a person probably not being heard.

Before radio, only those who could submit stories or letters to a newspaper would be heard, and, even then, only by those who subscribed to the newspaper. This is an option which still exists, and one that has always resulted in a person probably not being heard.

And, before newspapers, you had to stand up in a physical public square and shout at people, only reaching the people within physical earshot, most of whom are going to want to ignore you and go about their day. This is an option which still exists, and one that has always resulted in a person probably not being heard.

Twitter and Facebook, by nature of how large they are, have created an unprecedented ability to allow someone to be heard. But I see no reason why that accomplishment should create, out of whole cloth, a brand-new "right to be heard," especially at the expense of their own right to determine how their platform is used.

Caleb (profile) says:

Impact of section of Sotomayor's dissent that is quoted

"The First Amendment leaves a private store owner (or homeowner), for example, free to remove a customer (or dinner guest) for expressing unwanted views…"

Is Sotomayor now arguing that business owners are free to work with or deny work for whomever they choose (freedom of association)? If so, what does that mean for the troubled baker(s) of cakes in Colorado and Oregon that have been in the news?

Anonymous Coward says:

Re: Impact of section of Sotomayor's dissent that is quoted

Is Sotomayor now arguing that business owners are free to work with or deny work for whomever they choose (freedom of association)? If so, what does that mean for the troubled baker(s) of cakes in Colorado and Oregon that have been in the news?

The Supreme Court just overturned that ruling and sent it back down.

You missed that? Maybe you also didn’t know that Oberlin lost $44 million in its lawsuit because the court said calling someone a racist wasn’t mere opinion, contrary to what some "internet celebrity attorneys" were saying.

PaulT (profile) says:

Re: Impact of section of Sotomayor's dissent that is quoted

"If so, what does that mean for the troubled baker(s) of cakes in Colorado and Oregon that have been in the news?"

Since being gay is not an opinion – nothing.

They are still able to refuse gay people if they want, same as they always have been. They just can’t refuse to serve them because they’re gay. On the other hand, Nazi is not a protected class, so they’re free to also block all the Nazis they want.

Why this simple application of the law is still a mystery to you people, I don’t know.

andybisct (profile) says:

Pruneyard --

It is so frustrating to see that even you can’t get the Pruneyard case right.

It did not establish that malls are public places. It established that on that day, under a specific set of conditions Pruneyard was a public forum.

Critical to the ruling was that the girls had no way to know that they were entering private property, because Pruneyard had no signs providing notice that entry or activity was permitted by permission only.

Pruneyard subsequently put up signs just as you’d expect to see, saying something to the effect of "Right to pass is by permission of…". Had those signs been up — just this one little detail — Pruneyard would have gone the other way.

It provides exactly no help to people who think online fora should be treated as public. It is not an example of the Supreme Court co-opting private property for public use.

A second key detail is that when Pruneyard indicated it did not object to the content of the girls’ pamphlets, it was taken as a waiver of a claim against being forced to associate with opinions it did not like. That’s a minor holding in the case.

For sites like Google, Reddit, Patreon, etc., it is impossible for a situation to arise that is comparable to the Pruneyard case, because everyone must apply for a user account prior to being able to make public comments or post content. This is going to involve clicking through pages that, whether read or not, put the user on notice that access is by permission only. That takes it completely out of the ambit of Pruneyard.

I appreciate that you guys seem to be taking the sober approach on this issue, but even saying something as simply wrong as "establishing that malls are public forums", you create an opportunity for armchair legal experts to misapply the law in some other context.

This ruling should surprise exactly zero people who have been paying attention to case law in this area.

That One Guy (profile) says:

Re: Pruneyard --

Critical to the ruling was that the girls had no way to know that they were entering private property, because Pruneyard had no signs providing notice that entry or activity was permitted by permission only.

Mind explaining that one further for me, because I’m not seeing how someone could think that a mall wasn’t private property, unless it was owned and run by the government, so the idea that ‘they had no way to know’ just doesn’t seem like a reasonable one.

andybisct (profile) says:

Re: Re: Pruneyard --

mind explaining

Sure. Pruneyard isn’t the stereotypical shopping mall. It’s an outdoor shopping and office complex. There are two tall buildings (maybe 20 storeys each). Some parts of the ground level of those buildings and other smaller ones are filled with retail and commercial stores and storefronts. About half of the ground floor looks like something more akin to a city park That area is accessible from the street.

There is (or was when this took place, and tbh I haven’t been there in probably 25 years myself) a fair amount of foot traffic through the sort-of park-like ground floor areas, and it’s my understanding that this part is where the schoolkids were handing out their pamphlets.

It’s kind of unusual, because a private property owner has an interest in posting signs or other indicators with something like "Right to pass by permission of owner" — as a way of protecting themselves from foot traffic leading to a prescriptive easement. Similar to adverse possession, you can’t obtain a prescriptive easement when the property owner is aware of and allows you to walk through. In big cities, you’ll often see a metal plaque embedded in the sidewalk near any opening you can walk through. It’s kind of odd that Pruneyard didn’t have one.

That One Guy says:

Re: Such an odd example to use...

Unfortunately a few huge Platforms have become so dominant that considering them public platforms makes sense.

No, not really. The fact that lots of people use them does not magically turn them into public platforms beyond the fact that they are open to the public at the discretion of the company that owns them.

Prager’s remarks are not silly but not entirely off

They were both in fact, silly and factually lacking, as was demonstrated in court when it was pointed out that he wasn’t being ‘censored’ he just had some of his videos(12% to be precise) hid behind the equivalent of a ‘You must be this old to watch’ opt-in barrier due to the content, and that despite his cries of how terrible they were being to him numerous others channels faced the same thing, some of them much more(Last Week Tonight and The Daily Show had 49.78% and 54.5% of their videos given the same treatment respectively).

ThomasS (profile) says:

Free Speech Forum issues where facts distorted damaging economy

I understand its a complicated issue with strong feelings on both sides. However from the ‘hysterical side’, there is concern about the fact that access to any meaningful and practical free speech forum is difficult. Further, Youtube, Twitter and Facebook have a near monopoly on the social media forum. That I agree does not alone justify obligating these sites to provide free speech.
However, here is where it gets difficult. Imagine one of these sites (e.g. youtube) begins to limit access to one side of the conversation only and at the same time begins to distort the truth to fit youtube’s business or political plans. Imagine further such actions hurt the public’s access to critical information that is needed for the public and decision makers to make rational choices. That is what has been occurring recently. For instance only allowing opinions that align with WHO to be posted, where WHO has been caught lying and promoting Communist China’s views of the origin and spread of the virus while deleting a video by expert physicians who tested thousands and concluded that the lockdown should end soon is inexcusable. It is also a danger to our national economy, social sanity and national security which depends on a strong economy. Then I just saw a W. Post video declaring that the coronavirus could only have come from the wet market, a view repeatedly debunked, its clear youtude perhaps for business reasons is misleading America and our children. In such a case, a monopolist should and probably could be ordered to post opposing medical and tech expert opinions. Remember and I am my incorrect, Google owns youtube, Google has large financial connections to China and may willingly control its youtube postings to please China. China is well known for its bullying tactics.

PaulT (profile) says:

Re: Free Speech Forum issues where facts distorted damaging econ

"Imagine one of these sites (e.g. youtube) begins to limit access to one side of the conversation only and at the same time begins to distort the truth to fit youtube’s business or political plans"

If there’s any evidence of that happening it would be a scandal. As it is all we have is Alex Jones-style con artists whining that they can’t run their scams or people complaining that videos they disagree with politically are being shown alongside the ones they do agree with.

"That is what has been occurring recently."

It really hasn’t. Perhaps your problem is that the alternative sources you’ve been using are the ones actually lying to you?

"I just saw a W. Post video declaring that the coronavirus could only have come from the wet market"

Citation needed.

"its clear youtude perhaps for business reasons is misleading America and our children"

No, it’s clear that, if true, you have identified one source out of many thousands that has been found lacking in its video content (assuming that it’s saying what you claim, that it’s a current video and not an older one that popped up on your feed, and many other factors).

"Google owns youtube, Google has large financial connections to China and may willingly control its youtube postings to please China"

Yes, and it would be interesting indeed if you have evidence that this has affected their content outside of China.

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