5th Circuit v. 5th Circuit: When Can And When Can’t The Government Coerce Content Moderation Decisions?
from the judicial-activism dept
So, I already wrote a long post walking through the mostly very good 5th Circuit ruling in the Missouri v. Biden case, in which the court threw out most of the district court judge’s injunction against the government communicating with social media companies and academics. The end result is a very good, straightforward ruling on the 1st Amendment that reminds the government that they cannot coerce social media platforms on how they moderate.
The only bit left in the case is an injunction telling the government that they “shall take no actions, formal or informal, directly or indirectly, to coerce or significantly encourage” content moderation decisions by social media companies. Which is correct.
But I’m having a little difficulty trying to square that with the batshit crazy ruling from the very same 5th Circuit almost exactly a year ago, reinstating Texas’ state law on content moderation that pretty fucking clearly forces websites to moderate the way the government wishes them to.
Now, the two separate three judge panels have no overlap in judges, so you could argue that explains it. But, also, this latest ruling doesn’t even mention the earlier ruling. Which seems odd.
Now, I get what some people will say: they will claim that the two rulings don’t conflict at all if you read both of them to say that the government cannot force companies to take down content, but that it can force companies to leave up content. The Missouri ruling says the former, and the NetChoice ruling says the latter.
But that can’t be correct. The 1st Amendment protects against both scenarios and does so equally. The rights against compelled speech are just as important as the rights against suppressed speech. Because without one, you really don’t have the other. Freedom of speech covers both what you do and what you don’t say.
But the 5th Circuit seems to be suggesting only half of that applies. The half that allows the government to compel speech.
Of course, there is one other way to make the two rulings consistent: it’s a violation of the 1st Amendment when Democratic government officials do it, and it’s not a violation of the 1st Amendment when Republican government officials do it.
And people wonder why the public no longer trusts the judicial system to be impartial.
Filed Under: 1st amendment, 5th circuit, compelled speech, free speech, louisiana, missouri, texas
Comments on “5th Circuit v. 5th Circuit: When Can And When Can’t The Government Coerce Content Moderation Decisions?”
It wouldn’t be a very formalist way of doing things, but perhaps the judges in the present case are simply so certain that the Supreme Court will agree to hear the NetChoice cases (whether that’s a justified assumption is a different question) that they don’t want to waste time discussing something that will soon no longer be applicable horizontal precedent.
Was that trust broken before or after it was revealed that at least one Supreme Justice was shown to have been bribed by certain folk? Especially after the overturning of Roe vs Wade?
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Beyond Their Purview
Speech on social media is not the speech of the platform. If there are legal problems regarding content, platforms are quick to disavow themselves per Section 230(c)(1). It’s not their speech that is being compelled, anymore than things written on paper belong to the mill. If it’s not your speech, and you’re not a publisher, then you’re not being compelled.
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I know you can’t stop it but you publisher argument is pure rubbish. Kinda like you.
Re:
Yes or no, Koby: Do you believe the government should have the right to compel any interactive web service into hosting any third-party speech that said service would otherwise refuse to host?
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However it is the platforms right to decide what people and what speech they wish to associate themselves with via their terms of service.
If what you want to say gets you banned from popular platforms that is a you problem, and not a platform problem.
Perhaps they didn’t explain Netchoice v. Paxton because they can’t explain Netchoice v. Paxton. Maybe the judges on this case think the Netchoice ones were completely out of their minds to rule the way they did, but (for one reason or another) can’t come out and say that. It would at least explain what happened.
I might also be overly hopeful.
Judge JUDY
“why the public no longer trusts the judicial system”
Well, the public has long been indoctrinated by the media, legal profession, and education establishment that Judges are very special virtuous people, untouched by normal human subjectivity.
Judge Judy is the public image of judgeship to average Americans.
Firm but Fair & Wise.
Populist myths always dominate the tribe, but reality eventually crumbles myths.
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“Judge Judy is the public image of judgeship to average Americans.”
That show is not a court, it is mediation. The tv execs should not pretend that is is.
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“Mediator Judy” doesn’t have the same ring to it.
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Perhaps “Judgey Judy” would be more accurate.
Re: Re: Re:2
Well…
“Corporate shill Judy” doesn’t really sound like a nice thing to the admen…
Re: Re:
In fact, the first such TV exploitation of a courtroom was “Divorce Court”, started in 1957. Many have dubbed it “the original reality show on TV”.
Other court-based programs have come, most have stayed, and a few have passed on. But the main thrust has always been arbitration (albeit in public view), and as such they are held in the presence of a judge, either active or retired. Thus, the title of ‘Judge Judy’ is correct, she actually was a Family Court Judged in NYC. There have been instances where no judge was calling the shots, such as former Mayor Ed Koch (on The People’s Court), but those are quite rare, comparatively.
Thus ends this TIL lesson.
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People who end up serving on a jury are at times confused about what exactly occurs during a trial, this is mostly due to the stupid tv shows where it is made to look like a court. Perhaps this is not a big problem, might want to ask the court about it though. Judges have had to instruct juries about how court proceedings go and this is not tv. They probably are tired of it.
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Re: Supreme Court Justice Brown-Jackson
said she couldn’t define the word woman because she isn’t a biologist.
That is when we lost faith in the judicial system.
Re: Re: Insane Fraud Brigade
“she couldn’t define the word woman”
What the hell is wrong with you people and this stupid crap you spew? Can you define insane? How about fraud?
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Mike Masnick Malding Again
The difference is very clear, when you look at the top of the Texas bill, the first paragraph is that they find that social media companies are common carriers.
How ironic that you thought the government could make net neutrality, then when the government actually makes a law saying that social media companies have to also obey net neutrality, you lose your mind over it.
Re:
And if social media services were common carriers, that might mean something. But they’re not, so it doesn’t. Feel free to explain how they are, though—and to make sure you do it right, don’t use “public forum”, “public square”, or any variant thereof as part of your explantion because precisely zero (0) social media services are an actual public square.
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…said nobody mentally competent, ever.
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They can't, but again you're lying to pretend the same thing.
And it’s “censorship”.
But no, censorship is not “free speech” you lying fraud, and these cases are in no way equivalent.
Btw, I think platforms should be able to censor however they want, it just makes them the publisher. Yes, that’s what law says. Please don’t reply “as you explained”, you just lied, and are lying again, in the most ridiculous way possible.
But governments telling companies what to censor is unconstitutional every time. (certainly in regards to political speech, which all of this was) And when judges have rules otherwise, it’s just judicial activism because they like the censorship in question.
Oh, but hey, I just realized you are finally admitting the censorship at government orders occurred. Of course, the evidence of that has been overwhelming for many months, almost a year, I suspect you just finally realized how ridiculous gaslighting about it makes you seem.
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I suppose then, that the FBI is not allowed to inform critical internet platforms that their security is compromised in ways even the best security minds available for money could imagine?
Because that’s what you want.
You want the government to not be able to protect itself and its major shareholders just so you get to force Nazi speech down our throats. And much worse.
Who’s the one committing treason now, eh?
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It makes them a publisher. It doesn’t make them the publisher of third-party speech, in that the platform becomes legally liable for that speech.
And as has been explained before, the government generally isn’t demanding that companies like Twitter censor content. It sends reports to those companies that (at least per the “Twitter Files”) tells the companies that the reported content may violate the platform’s TOS and says “do something or do nothing, whatever you think is best” without attaching so much as an implied threat for doing nothing. If there were a case of the government making an unconstitutional demand with coercive threats attached, you’d be able to provide it. But you can’t, so there isn’t.
Only if you keep huffing fumes from all the right-wing gaslighting. In the real world, whatever “evidence” you think you have doesn’t pass the smell test.
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Re:
You straight white boys have enjoyed your time in the sun, overstayed your welcome, and now you’re gonna get what’s coming to you. You thought sharing a cell with Bubba was bad, wait ’til you see what the hotpocketshogun Patreon has to offer.
Re: Re:
We know it’s you, Herman.
Re: Re:
More threats of FEMA death camps?
Perhaps you should seek medical assistance
Re: Re: Re:
Euthanasia is illegal in most countries.
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Re: Re: Re:2
We’re working on that. True love and Pride Month will find a way.
“Coerce Content Moderation Decisions”
This is a strange way to describe law enforcement.
Fraud is a crime that needs to be prosecuted.
Telling people to avoid the vaccine and risk death because (insert bullshit) is fraud.
Disinformation is fraud.
The bullshit is too damn high