Conservatives Loved Expanding The 1st Amendment To Corporations… Until Last Year. Wonder Why?
from the what-could-it-possibly-be dept
Right after the 5th Circuit’s ruling on Texas’ HB 20 law on content moderation came out, I wrote up a long post going through the many, many oddities (and just flat out mistakes) of the ruling.
Since then, one thing that was bothering about this ruling was that it wasn’t just wrong on the law, wrong on the relevant precedents, and wrong on the 1st Amendment… but it literally went against the last few decades of how conservative Federalist Society judges have been expanding the 1st Amendment to cover more and more activity by organizations (which, contrary to popular opinion, I actually think has been mostly correct).
The Daily Beast asked me to write up an analysis of the 5th Circuit ruling, and one thing I focused on was just how blatantly basically the entire Republican ecosystem completely reversed on this issue over the last year and a half since Donald Trump got banned from Twitter. I mean, at a very direct level, Republicans insisted (falsely) that net neutrality was an attack on the “free speech rights” of internet providers, and that the very limited net neutrality rules that the FCC put in place were “the government takeover of the internet.” Yet they suddenly have no problem applying much more aggressive and 1st Amendment violative rules to edge providers that are nothing like internet service providers.
And while I kept hearing people say that the Dobbs ruling showed that the Supreme Court will now ignore precedent to get to the results it wants, there’s something different about the 5th Circuit’s ruling in the NetChoice case:
The cynical will point to things like the Supreme Court’s decision in Dobbs (which overturned Roe v. Wade) and note that we’ve entered an era of Calvinball jurisprudence—in which precedents are no longer an impediment to whatever endgame Federalist Society judges want. (The beloved comic strip Calvin and Hobbes introduced us to the concept of “Calvinball”—a sport in which the participants make up the rules as they go, never using the same rules twice.)
But in some ways this decision is even more ridiculous. There are pockets of the conservative world that have spent 50 years honing arguments to overturn Roe. The opposite is true when it comes to upending the First Amendment.
Indeed, the same forces that worked to overturn Roe spent nearly the same amount of time working to strengthen and expand judicial recognition of the First Amendment rights of companies—from allowing a baker to choose not to decorate a cake, to allowing companies to cite the First Amendment as a reason not to provide contraception as part of a health plan, and deciding that the First Amendment did not allow Congress to bar certain types of expenditures in support of political candidates.
No matter how you feel about Masterpiece Cakeshop, Hobby Lobby or Citizens United, all three were cases driven by conservative arguments that relied heavily on the fundamental position that the First Amendment barred restrictions on corporate expression, including the right to not be forced to endorse, enable, or support certain forms of expression.
I pointed out how Ken White had once noted that there just wasn’t a deep bench of conservative judges looking to take away 1st Amendment rights. And that actually held for a while:
As First Amendment lawyer Ken White noted back in the comparatively innocent days of November 2016, regarding Donald Trump’s call to open up our libel laws, “You can go shopping for judicial candidates whose writings or decisions suggest they will overturn Roe v. Wade, but it would be extremely difficult to find ones who would reliably overturn [key First Amendment precedents.]”
But, as if to just put a spotlight on their lack of actual principles, a huge part of the Republican establishment flipped on this point on a dime, solely to punish tech companies that they feel have become “too woke.” It’s almost as if they only support the 1st Amendment for those who ideologically agree with them.
I mean, Justice Clarence Thomas, who almost certainly will vote to uphold the 5th Circuit, will be doing a complete 180 on his concurrence in Masterpiece Cakeshop. In that one, he argued the Supreme Court should have gone even further to make it clear that forcing a baker to decorate a cake for a gay couple would violate the baker’s free speech, and dismissed the key cases the 5th Circuit relied on in the NetChoice case (FAIR and Pruneyard) as being wholly inapplicable, while highlighting the importance of Miami Herald v. Tornillo (the case that the 5th Circuit says is wholly different) on the 1st Amendment protecting the right for private operators to “exercise control over the messages” they send.
With Dobbs, everyone knew where it was going, because conservatives spent 50 years working up to it. But the 5th Circuit ruling lays bare how there are no principles among an unfortunately large segment of today’s Republicans in both statehouses and courts. It’s not about principles. It is entirely focused on punishing people they don’t like.
There’s a lot more in the Daily Beast piece, but I wanted to highlight that one element that hadn’t received as much attention.
Filed Under: 1st amendment, 5th circuit, andy oldham, clarence thomas, compelled speech, content moderation, hb 20, social media, texas
Comments on “Conservatives Loved Expanding The 1st Amendment To Corporations… Until Last Year. Wonder Why?”
But…but “common carrier” and “people don’t think it’s the platform’s speech” and other such arguments~! Won’t someone think of the fascists~?
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We can think about them once they all go to Hell.
i expect no less from the 5th
glad i don’t live in one of the states it administrates.
Like I commented on an earlier post…
I am old enough to remember when people on the right were saying that an internet access provider has a 1st amendment right to decided what services / sites they allow / disallow their customer to view as well as how they decide they want to manage their networks in terms of zero-rating, etc.
Funny how times have changed, or at least the businesses being targeted.
Republicans: forcing a baker to decorate a cake for a gay couple would violate the baker’s free speech.
Also Republicans: Twitter should be forced to host anti-gay speech and that doesn’t violate their free speech.
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It’s almost like hypocrisy is a virtue for fascists. Imagine that~.
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There is no hypocrisy there, the speech they do not like should be censored, and the speech they like should be rammed down everybodies else’s throats. It is a consistent authoritarian position, and the law should always be interpreted to suite their position.
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The hypocrisy lies not in the position of…
…but in fascists saying their attempts to censor people aren’t actually attempts to censor people. They’ll say it’s about preventing “woke indoctrination” or whatever, which is where the hypocrisy comes in—after all, trying to whitewash history is its own form of indoctrination.
Its almost like they understand they will soon be the minority & are trying to make sure that they can’t be treated the way they treat minorities in this country.
Conservative Republicans were all in favor of traditional conservative values until those values failed to satisfy their Nazi-fueled goals. So, now they really have no values, no goal beyond getting what they want in the moment, which was really about more “power” (to influence foolish voters mostly). They were fakes all along; now they’re just proving it.
The irony: Their fucking backers continue to fund white supremacy and the nonsense that WILL continue to give other countries legitimacy to implement fascist ideals and laws.
I mean, it’s already happening EVERYWHERE.
'We love the first amendment... so long as it helps US.'
As I see it all that really changed was that they dropped the pretense of caring about the first amendment and decided to be honest about their motivations and goals.
The first amendment was a tool to be used to get what they wanted in the form of ensuring that companies that aligned with/paid them were allowed to operate unchecked, the second that the first amendment and companies turned against them the mask came off and like any ‘broken’ tool the first amendment was thrown aside.
Once you realize that their care about and love for the first amendment was and is entirely contingent on it benefiting them and only them the 180 change goes from baffling to completely foreseeable and understandable.
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The White Racist/Elitist Dummies Are Congratulating Themselves on Their Self-Avowed but Utterly Bogus Magnanimity!
Judge Oldham is Correct About Common Carriage
Judge Oldham is correct with respect to the history of message common carriage after message common carriage began in the 1840s to include message common carriage of digital personal literary property by telegraph.
When Judge Oldham tries to argue that the First Amendment does not include a right to censorship, he is not as persuasive as he could be.
Neither a blog host nor a provider of a mass announcement system (e.g, AT&T MANS) has ever considered written or audio narrative,
to be the speech either of the blog host or of the provider of the mass announcement system until now.
This First Amendment claim is purely a pretextual justification for discrimination against some classes of people because white racists or white elitists
For 40 years I have been writing documents to be filed in the Court of Appeals for the DC Circuit or in the Supreme Court of the United States (i.e, since Judge Oldham was a toddler). I have learned that a lot of Judges and Justices on these two courts really seem to enjoy identifying pretextual efforts to legitimize inequitable or unlawful behavior.
AT&T Mass Announcement Network Service (MANS)
I helped develop the AT&T Mass Announcement Network Service (MANS), which Dial-A-Porn used.
See “Dial-A-Porn” from Pornography Research Advances and Policy Considerations.
No one ever confused the Dial-A-Porn messages, which AT&T hosted, with AT&T’s own speech.
Hosting, which is a term used today in the context of a blog or in the context of a social medium platform, was considered then to be the temporary storage of a customer’s merchandise or property on its way to the destination. Calling such temporary storage hosting does not make it possible for a common carrier to escape its common carriage obligations.
Read the whole discussion of Dial-A-Porn. The FCC eventually fined Dial-A-Porn. Because AT&T was and is a common carrier, no one ever considered fining AT&T on account of the Dial-A-Porn messages, which were hosted in the AT&T network via the Network Services Complex (NSC), which was connected to a 4ESS (National Electronic Switching System).
MANS was an extremely lucrative service, which AT&T offered at least through the early 90s when pornographers realized that the Internet was a much better medium for pornography.
A Social Medium Platform has no First Amendment right to deny common carriage
Judge Oldham’s opinion provides evidence that indicates he understands the history of message common carriage of digital personal literary property as well as the history of associated common carriage law. Yet, Oldham seems out of his depth with respect to the technology of a social medium platform.
If I were to meet him today, I would pose the following question to him.
In what speech is a social medium platform engaging (forced or otherwise) as it temporarily stores (hosts) content in a database on a backend server while the social medium platform prepares to deliver the content to an end user’s display by message common carriage?
Judge Oldham and his critics are clueless with respect to Internet technology
The following question is typical of the technological idiocy in the debate.
Question: Does a notice board accessible to passing members of the public — by being at the entrance of a supermarket for example — offer a common carriage service? If not, how does Twitter differ from that in function, other than by being a service attached to a network that offers public access?
Answer: The described public notice board is a material board to which a member affixes a material message. The material board provides neither message switching nor message common carriage. Twitter provides store-and-forward message switching as well as message common carriage among users. Twitter temporarily stores a message in a backend database system (hosting) while the message is on the way to an end-user by message common carriage.
The question confuses the frontend model (a pure concept or abstract idea†) with a material notice board. The frontend model makes it easier for an end user to interact with Twitter’s system.
In other words, Twitter’s system has no similarity whatsoever to the material notice board and the question shows no comprehension of Internet technology whatsoever.
[Please note that the terminology of this area is somewhat confusing. A software engineer generally uses the Model-View-Controller design pattern to design a web or cloud service. The end user invokes a browser on his end host (a laptop or mobile computing device) to access the service. A single-page application is frontend social medium platform software that runs in a web browser to access the service of the social medium platform. A mobile device typically runs a mobile app (provided by the social medium platform) to access the service, which the social medium platform’s backend provides.]
A 2020 social medium platform has no First Amendment right to deny message common carriage, but the social medium platform will have the legal obligation to pay 100s of billions of dollars of penalties for its criminal and civil violations.
Note
† Abstract idea in this context has some similarities to the abstract idea exception to patent eligibility.
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And if you had a citation of law or binding legal precedent that definitively says “Twitter is a common carrier”, your opinion might mean something.
Until you have that citation: lmao, you can’t make Twitter host your speech, get fucked
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Re: Re: The Whole Arguiment of a Depraved White Racist Dummy: Get Fucked!
One must suspect that he either suffers third-stage syphilis or human spongiform encephalopathy (Creutzfeldt-Jakob disease).
The legal equivalency of (a) message common carriage of digital personal literary property by telegraph, by telex, or by PSPDN with (b) message common carriage of digital personal literary property by a social medium platform over the Internet is obvious to anyone
The first two opinions will start a flood to wipe out the current racist/elitist management of every social medium platform as it comes under the authority of the US trustee.
The depraved racist/elitist management of every discriminatory social medium platform is walking dead that will metaphorically bite the dust within approximately three years.
The temporary storage of digital literary property in a backend database is not speech!
It is a pretextual and obvious ridiculous attempt to justify massive legal violations to assert that such temporary storage is speech.
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I see you have no citation.
lmao, you can’t make Twitter host your speech, get fucked
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“One must suspect that he either suffers third-stage syphilis or human spongiform encephalopathy (Creutzfeldt-Jakob disease).”
That’s weirdly self aware for you bro.
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… said nobpdy who has ever once demonstrated any evidence of legal, or mental, competence ever.
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Again, if you actually claim to be banned wrongly, then post the problematic tweets.
Or am I supposed to do your work for you? Breaking several laws in the process and risking your probably impotent wrath?
Please don’t sully Phillip K Dick. But you probably don’t care. Just like the Hollywood Execs who exploited him.
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Still ain’t reading your shit ass manifesto bro.
There is No Inconsistency of Principles
I don’t see their being an inconsistency, it was always about being a Conservative, which is three tenants:
1) Maintaining and promoting Social Hierarchies.
2) A strong emphasis that we as people are inherently unequal.
3) Promoting capitalism, which is heavily implied to be antidemocratic.
Making sure that the base (bigots, rich supporters) is promoted above others was always the goal, and making sure that the only game in town (capitalism, already an uneven playing field by its very nature) is consistently rigged in their favor has always been the plan.
The whining, the persecution complex, that has always been conservative political strategy for decades.
Is it hypocritical? Yes. Is this inconsistent? I personally don’t think so.
Conservative. Since Trump, that word no longer means what you think it means.
Re: 'Well if the president doesn't feel the need to pretend...'
That’s the disturbing thing though, all that crazy and worse doesn’t just come from no-where so either he somehow radicalized a whole bunch of people over the course of only a few years who all seem to gravitate to a particular political party or they were already there and he just gave them an excuse to take the mask off.
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The mask had slipped off a lot of conservatives after the election of Barack Obama. Trump merely encouraged everyone else to take off their masks and be as awful a person as him.
Indeed. This parallels with the Copyright Cult as well.
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Does a White Racist/Elitist Dummy Every Bother to Read a Legal Opinion?
The controversy in Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719, 201 L. Ed. 2d 35, 27 Fla. L. Weekly Supp. 289, 86 U.S.L.W. 4335 (2018) has no connection to any issue in Netchoice, L.L.C. v. Paxton, No. 21-51178 (5th Cir. 2022), September 16, 2022.
Here is a good summary of Masterpiece.
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Why Are Common Carriage Experts Outraged by Behavior of a Social Medium Platform?
A social medium platform provides a slightly fancier interface to a technology that differs little from telegraphy or from telex.
Suddenly a bunch of depraved white racist/elitist dummies (e.g., the TechDirt nitwits and moronic management) believe the social medium platform no longer has to obey the law.
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A vindictive person thrown off off some sites for harassment is trying to turn a notice boards into a common carrier system. Calling everybody who disagrees with you a racist just shows how weak your arguments are.
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What law or binding legal precedent specifically says Twitter is legally obligated to host/carry/whatever all third-party speech? Give us the exact citation. Until then: lmao, you can’t make Twitter host your speech, get fucked
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Re: Re: Texas
The one Texas just passed. Care to post any legal precedence that says the state has no right to pass such regulation?
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The First Amendment and Miami Herald v. Tornillo. If what Twitter does in re: moderation is considered editorial discretion—and I see no credible reason why that wouldn’t be the case—the government can’t legally make Twitter host the speech Twitter doesn’t want to host.
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So you admit you have absolutely nothing.
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“No matter how you feel about Masterpiece Cakeshop,”
The court was quite clear that the cakeshop can be required under law to sell the gay couple a cake. They cannot however be forced to bake a specific cake for that couples as the cake itself is artistic expression.
Twitter doesn’t write anyone else’s tweets therefor its not their speech so they have absolutely zero First Amendment rights.
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Twitter does have a First Amendment right to decide what speech it will or will not host. That decision, in and of itself, is a form of speech—one that, unless you have a citation of law or legal precedent saying otherwise, the government cannot abridge.
(lmao, you can’t make Twitter host your speech, get fucked)
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“Twitter does have a First Amendment right to decide what speech it will or will not host.”
Twitter doesn’t decide which speech it will or will not host. It hosts all speech until it ex post takes it down.
If twitter curated post priori like “letters to the editor” then it would be Twitter’s speech.
Priori and ex post are exactly whey one is considered speech and the other is not.
No reasonable person considers a tweet twitters speech.
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It does, actually. Whether it does so pre- or post-publication is largely irrelevant.
The decision to moderate is, in and of itself, a form of speech—in essence, it is Twitter saying “yeah, no, we don’t allow that here”. For what reason, other than “Twitter is big” or “Twitter is a liberal service”, does Twitter not deserve the right to decide what speech it will or will not host?
Again, this is irrelevant. Twitter’s owners/operators can still choose what speech and speakers to associate with its platform, even if the association is only in their minds. Editorial discretion is a First Amendment–protected right, and Twitter has it until binding legal precedent says it doesn’t.
(lmao, you can’t make Twitter host your speech, get fucked)
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Thats like saying I have a First Amendment right not to host black folk because of “freedom of assembly.” No reasonable person would consider it my assembly. No reasonable person would consider it Twitter’s speech
You are a nutcase. You are not reasonable. Stop applying your distorted insane world view on the rest of us.
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Your the one trying to force their insane views on others by forcing their way back onto Twitter.
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You actually do, so long as your property isn’t open to the public as a public accomodation business’s property would be. I mean, Augusta National Golf Club didn’t extend an invitation for a Black man to join the club until nearly 60 years after its opening (and also didn’t invite any women to join until 80 years after its opening), but the law didn’t force Augusta to do any of those things because it’s a private invitation-only club that doesn’t open its property to the general public.
Still an irrelevant argument, BTW.
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All evidence so far tells us that hate-speech, racism, bigotry and other assholery on platforms are associated with the platforms if they don’t moderate such speech.
The factual truth is that no reasonable person want to be associated with such speech.
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And even if nobody would consider third-party speech to be Twitter’s speech, Twitter’s higher-ups still have the right to decide whether they want Twitter to associate with that speech by way of hosting it.
The freedom of association must also come with the freedom to refuse association, regardless of what anyone else thinks. The law can’t compel Twitter to host Klan propaganda even if nobody reasonably believes Twitter supports the Klan.
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Under the argument of ‘it’s not forced speech if it’s clear the speaker isn’t the owner of the property’ a town or state could pass a law stating that an owner of a publicly available business like a bar or grocery store would be prohibited from telling someone loudly spouting bigoted speech to leave so long as customers could be reasonably expected to know that the raging bigot wasn’t employed by the property owner, which would be obviously absurd and a clear violation of the store owner’s first amendment rights.
And yet when it’s online…
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..they want the owners to just suck it up while the property becomes known, to reasonable people, as the cesspit where the assholes congregate.
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For reasons which have nothing at all to do with how quickly those platforms show them the door for their words and actions I’m sure.
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Refusing to put a particular measles on a cake is refusing to publish someone else’s speech, so the outcome of that case supports Twitters moderation of speech.
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A baker must make a cake. Twitter takes no proactive action in hosting a tweet.
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A bakery has to make a cake for any customer that wants one—i.e., it has to offer the exact same menu to every customer. But the messaging on the cake can be rejected under the right circumstances (e.g., the Azucar Bakery case).
Twitter has no legal, moral, or ethical obligation to let speech it doesn’t want to host stay on the service. Its decision to remove such speech post-publication is a form of editorial discretion—which is a legally protected right under the First Amendment. Until you have a binding legal precedent that says otherwise, Twitter has the right to remove speech from the platform that it doesn’t want to host.
(lmao, you can’t make Twitter host your speech, get fucked)
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There’s something morbidly fascinating the lengths that Chozen will go to in order to prop up the partisan base that has made it clear, in no uncertain terms, that they detest his sexual minority (and indeed, all sexual minorities) and would wish him out of existence given the chance. It’s like watching a chicken defending the fox in the henhouse or a moth suicidally diving towards a naked candle flame.
I give him another day before he defaults back to the “Texas-sized dick” rape threats.
Twitter is like the mall
I’ve probably made this comparison before, but here it again:
Twitter is like the mall since it’s a privately owned company open to the public.
If Trump came into the mall and started ranting about how the election was stolen, would the mall have a right to kick him out?
What if other people complained about his ranting? And what if their complaining had a negative impact on the mall?
Should the government force the mall to continue to allow Trump to rant?
Then why are so many Republicans treating websites differently than malls?
In fact, malls were the equivalent of Twitter back in their day and I’m sure people did complain about kicked out for saying something offensive.
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Twitter is not the mall, it is a Cofee shop within the mall of the Internet.
Progressives hated expanding the 1st Amendment to corporations [because corporations are not people] until last year. Wonder why?
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[Citation Needed].
Ok, but...
A fascist uses violence to force a point of view upon the masses. When fascists are constantly changing and reversing opinions and points of view, leaving everyone unsure of what the point of view is supposed to be, are they still fascists, or just enforcers of state sponsored confusion?
Also, while we’re at it, people trying to criminalize an entity’s right to moderate the speech they host is nutty enough, but if you support the idea that speech that fits in to somebody’s vaguely defined and ever changing notion of “hate speech” should be criminalized, you have passed nutty and gone straight to full-blown bonkers.
Ultimately, laws are enforced by the threat of violence. Laws banning speech seem much more fascist than those that try to prevent speech from being censored, regardless of how misguided or idiotic any of the motives or subject matter might be.