Surprise: Wall Street Journal Editorial Board (Correctly) Explains Why Florida’s & Texas’ Social Media Laws Are Horrible And Unconstitutional
from the broken-clock-etc-etc dept
This morning, as you likely heard, the Supreme Court heard oral arguments in the NetChoice/CCIA cases regarding Texas’ and Florida’s social media laws. The outcomes of these cases will have a pretty major impact on the future of online speech. While a lot of people have suggested that the states’ arguments are supported by conservatives, and the platforms’ arguments are supported by liberals, that’s not really how the support has lined up at all.
Many traditionally conservative groups and individuals filed amicus briefs in support of the platforms, and a few liberal groups filed briefs in support of the states (though they seem very confused).
Still, it’s a bit surprising to see the WSJ editorial board come out in favor of the platforms and against the states. Yet, that’s exactly what it’s done. Over the past few years, the WSJ’s editorial board has been pretty reliably willing to support all sorts of populist Trumpist MAGA nonsense, which these laws are all about. Hilariously (but not surprisingly), Trump himself filed an amicus brief in support of the states which doesn’t (not once) mention that Trump owns Truth Social, a social media site that would violate these laws (if Truth Social ever got large enough to qualify).
But here, the WSJ editorial board gets it right: these laws are attempts by states to control speech online. And that’s never a good idea.
NetChoice, a tech industry group, is challenging Texas and Florida laws that seek to prevent social-media platforms from silencing conservatives. Republicans are rightly frustrated by censorship that often tilts against conservatives, including us. But the solution to business censorship of conservatives isn’t government censorship of business.
The editorial board also points out — as we did last year (despite people getting upset at us) — that last year’s ruling in 303 Creative shows why governments shouldn’t be involved in regulating what speech companies can and cannot assist.
NetChoice makes a strong case that the laws abridge First Amendment speech rights by restricting the editorial discretion of platforms. Only last term the Court ruled in 303 Creative LLC that Colorado couldn’t compel a website designer to create work that violates her values. The same principle, NetChoice says, should apply to the Texas and Florida laws.
While such social-media platforms as Instagram and YouTube aren’t traditional publishers like newspapers and broadcasters, they exercise editorial judgment when they decide what content to remove, suppress or amplify. They also exercise discretion when curating user feeds and making recommendations.
As for the argument that websites are common carriers, the editorial board notes that’s a silly argument:
This analogy is inapt. Businesses that are regulated as common carriers like telephone companies, taxis, railroads and electric utilities don’t engage in editorial or expressive activity. Yet the states implicitly concede that social-media platforms do engage in such expression when they accuse them of discriminating against disfavored speech. Florida and Texas can’t have it both ways.
The overriding problem is that extending common-carrier regulation to social-media platforms invites more government control of speech. Do Florida and Texas want Federal Trade Commission Chair Lina Khan dictating what can and can’t be said online? Could California pass a law requiring companies to remove posts that criticize male transgender participation in women’s sports?
There’s more, but the piece also (correctly) points out why the Supreme Court’s mostly dead Pruneyard precedent is inapt here, and that Miami Herald v. Tornillo is the much “more relevant” precedent.
Indeed, the WSJ calls out that if conservatives are upset by moderation on some platforms, they have others to choose from instead, including Elon Musk’s ExTwitter, where he seems perfectly willing to silence “the woke mind virus” but freely allows plenty of conservative grifters to grift freely.
The conclusion of the editorial is exactly correct:
But it never turns out well for conservatives, or anyone else, when the supposed remedy is giving government more power to control speech. The Supreme Court can make that clear to Texas and Florida.
It’s rare that I agree with a WSJ editorial board opinion piece, but this one is correct.
Filed Under: 1st amendment, content moderation, florida, free speech, supreme court, texas
Companies: ccia, netchoice, wsj
Comments on “Surprise: Wall Street Journal Editorial Board (Correctly) Explains Why Florida’s & Texas’ Social Media Laws Are Horrible And Unconstitutional”
An ancient poem:
They don’t have to bake your cake;
They don’t have to host your take.
Re:
Can you make it in the form of a haiku?
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Supreme Court has chose,
whether it’s of dough or prose,
you shall not impose.
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Stellar!
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“They don’t have to decorate your cake” is more accurate, but I know that ruins the flow of the rhyme. Remember: The Masterpiece Cakeshop case was not about a refusal to decorate a wedding cake with custom speech that the owner disagreed with, but about a refusal to bake an undecorated wedding cake for (and therefore offer equal service to) a gay couple.
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It’s also good to note in the similar Sweet Cakes by Melissa case in Oregon that the owners doxxed the couple who had filed a complaint with the state Bureau of Labor and Industries for discrimination, which led to death threats against the lesbian couple.
This is similar to a lot of the “viewpoint discrimination” claims about a lot of people who got kicked off Twitter before Musk took over. When you find out the “viewpoint” they got banned over, it was actually directed harassment rather than just stating opinions.
They often try to twist the perspective of their behavior to make it seem like they’re just behaving in a normal, acceptable manner rather than actually breaking laws.
Re: Re: Re:
The usual approach of abusers.
DARVO
Deny
Attack
Reverse Victim and Offender.
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Re: Re:
No you are factually wrong, and completely contradicting the holding of the court, the court said that the court couldn’t force the person to make compelled speech, the plaintiff thought that refusing to be compelled to speak, itself amounted to discrimination.
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No, you’re factually wrong. The Supreme Court punted on the actual discrimination dispute and only said that the Colorado commission had failed to be religiously neutral in its ruling against Masterpiece. It didn’t strike down the Colorado law or find that Masterpiece hadn’t illegally discriminated. And Masterpiece was later successfully sued by a transgender person for discrimination in a similar case.
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Re: Re: Re:2
oh, you’re right, I was conflating with Masterpiece Cake Shop with 303 Creative LLC v. Elenis which held:
“Held: The First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees.”
Re: Re: Re:3
How typical of the revenge porn man.
Go back to Kiwifarms, asshole.
Re: Re: Re:2
A young woman, I believe.
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Except I’m not. I’ll note that a similar case in Colorado went in favor of the bakery because the bakery was willing to bake a cake for a potential customer, but refused to decorate the cake with anti-gay speech and even offered to sell the customer everything he needed to decorate the cake himself.
When we step into the public sphere, we make room for those who are different than us—in belief, in identity, and in many other ways. No one can or should be denied a spot in the public sphere based on who they are. Our society recognizes that denying someone service based on inherent traits such as age or skin color/ethnicity (or non-inherent traits such as religious creed) infringes upon their right to participate in the public sphere. To that end, the law allows for a limited abridgement of one person’s freedoms so that other people can exercise their rights. Ergo, when a business opens itself up to the general public, it doesn’t have the right to decide who is part of “the general public”—and it doesn’t have the right to shortchange certain groups of people by refusing, on the basis of who those people are, to sell them items that the business would otherwise sell to everyone.
The problem you’re going to run into with the Masterpiece Cakeshop case is that, rather than refusing to decorate a cake with custom speech, “[the bakery] denied [the gay couple’s] request without any discussion regarding the wedding cake’s design or any possible written inscriptions”. That is why Masterpiece ran afould of Colorado anti-discrimination law—it refused to serve that couple equally—and why the bakery lost that case on the merits at every level but SCOTUS.
If you believe you can prove otherwise despite my having extensively cited an actual ruling from an actual court on this matter, you go ahead and try. But I suspect your attempt will be a failure. Good luck.
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Re: Re: Re:2
oh, you’re right, I was conflating with Masterpiece Cake Shop with 303 Creative LLC v. Elenis which held:
“Held: The First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees.”
Re: Re: Re:3
At least you can admit your absolute and unequivocal wrongness. Now try to avoid making the same mistake in the future.
Re: Re: Re:2
“I’ll note that a similar case in Colorado went in favor of the bakery because the bakery was willing to bake a cake for a potential customer, but refused to decorate the cake with anti-gay speech and even offered to sell the customer everything he needed to decorate the cake himself.”
Really? I remember the speech being objected to as pro-gay by a baker who claimed to have Christian values.
Re: Re: to extend the analogy
The gay couple who wanted the cake are customers, offering money for a product. Social media users are not customers. The advertisers are customers. Now if a social media platform told a potential advertiser, go away, we don’t want your money, we hate what you’re advertising, that might be a similar sort of discrimination.
But this fight is actually over whether the cakes have a right to be in the baker’s shop, or if the baker has the right to say, this cake is no good, nobody will buy it, it’s so offensive it’s scaring off customers for my other cakes, and toss it in the trash.
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Google is a common carrier
Google was literally found guilty of antitrust, and under antitrust laws, companies can be forced to do business with people they don’t want to, and can be prohibited from their “free association” rights under the first amendment.
The fact is that google:
controls my telephone number
controls my passwords
controls my wireless phone service
controls my emails
controls my domain names
controls my wallet (google pay)
controls my medical records (google health)
If google didn’t want to be a “common carrier” then they shouldn’t have vertically integrated their services into every aspect of the economy.
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Re: Google is a common carrier
So on one hand people in the government claim; that social media is so dangerous that we cant allow free enterprise, that misinformation is so important that there need to be federal officers and former federal officers embedded within the social media companies to monitor dangerous posts right? Isn’t that the entire premise of the CISA program itself that “social media” was under the prevue of federal cyber security response.
Yet on the other hand you want to reject the possibility that the same industry of national importance, such as was the case when the railroads were providing the key means of transportation and were also private companies, that those companies are cannot be deemed to be “common carriers” such that they have to serve all customers without distinction?
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So.. You want government to regulate all speech on the internet?
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The bigger irony is that he’d be one if the first to be banned from speaking, due to, yanno, his revenge porn conviction.
After all, under the wonderful white fascist regime, criminalls will be the first to go…
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No no no, the leopards would never eat his face!
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So, do you have a point you’re trying to make?
Tell me what moderation of youtube content has to do with your telephone number?
And nobody is forcing you to use google for telephone, passwords, wireless service, emails, domain names, wallet, nor medical records. Those are all things you are willfully giving to them.
Maybe you should just quit using google, problem solved.
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Google can blanket ban entire accounts across the entire Google ecosystem, based on content on Youtube, resulting in loss of all services.
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Google has my cell number because I use an Android phone, but please, do tell me how they can ban my T-Mobile service for content I posted on youtube?
Also, either don’t use google, or don’t be an asshole, either one of those choices will not allow them to ban anything of yours.
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Re: Re: Re:2
Google offers their own cellphone service, “google fi wireless”, so in this instance, google would be T-mobile
Re: Re: Re:3
Don’t use google, problem solved.
You just too fucking stupid to understand that.
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Re: Re: Re:4
That’s like telling Epic Games that they should just stop using google, if they don’t like google’s anti-competitive action, but in reality google is so vertically integrated, that its in epic CEO’s fiduciary duty to his shareholders is to advertise and market on google.
Re: Re: Re:5
Somehow I doubt that you are distributing apps on the google app store.
You are not Epic games.
Quit using google. Problem solved.
And you’re still too fucking stupid to realize this.
Re: Re: Re:3
Actually, the lack of choice is if you want to use T-Mobile but not Orange (in the UK) because EE is both. If you don’t want to use Google, find another carrier.
Re: Re: Re:2
Uh, no. That’s not how it works. Google knows nothing about my tablet despite the fact that it runs Android, but it would know about my phone if it was a Google Pixel.
Re: Re: Re: News at 11, except for you Ben
Holy shit a private company can decide not to do buisness with you for a non-illegal reason!
Re: Re: Re:2
Would “this dude is a convicted sex offender who distributed revenge porn” be a legal reason for a private company to not do business with Benji? Because he is a convicted sex offender who distributed revenge porn.
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Eh? SOMEONE named Benjamin J. Barber was so arrested. Was it this one?
Re: Re: Re:4
Enquiring minds want to know. But our man Benji, seems to have disappeared like; to pick a completely random analogy, a called out convicted sex offender.
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Re: Re: Re:2
Yes, and the Texas statute makes them common carrier, and makes it illegal to discriminate against users.
Re: Re: Re:3
You just contradicted yourself in the same sentence.
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You chose to allow Google to manage all the services on your list. There are scores of other options in the marketplace for all of those services if you don’t like it. (Many of whom are not big enough to be impacted by the laws at issue in this case.)
Not to mention that the case at issue only peripherally touches those non-social-media services.
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Re: Re:
did you listen to today’s oral arguments? The assistant attorney general herself claimed that the position taken by the authors is incorrect, that the direct messages between users on platforms, does not implicate the speech of the platforms themselves, and that those could be regulated as a common carrier.
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“claimed”
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Tell me exactly why YouTube should be forced to host someone’s speech. Then explain why that logic should apply to Twitter. And Facebook. And Mastodon instances, and Truth Social, and Gab, and Parler, and 4chan, and Techdirt, and blogs with Disqus comments, and tiny old-school forums for incredibly niche interests, and basically any other interactive web service that accepts third-party speech.
I’ll wait.
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Because Google was found guilty of antitrust, whereas 4chan was not.
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Irrelevant. If you want the government to compel the hosting of speech on any Alphabet-provided interactive web service, the logic you use to justify that idea could also be used to allow compelled speech on any other interactive web service. Go ahead and declare YouTube or Gmail or even Blogger to be a “common carrier”—but what would then stop the government from declaring 4chan or a pro-queer Mastodon instance or Techdirt’s comments sections to be “common carriers” and demanding those interactive web services host speech they otherwise wouldn’t host?
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Re: Re: Re:2
No, because I already mentioned that google has been found to be anti-competitive, and antitrust laws allow compelling companies to do business with people the company doesn’t want to.
Likewise the Texas statute does not declare every single website a common carrier, only those companies that are above a certain size threshold.
Just like the government forced telegraph companies, phone companies, to be common carriers, precisely because of their national importance and scope.
Re: Re: Re:3
And in that case, those companies were public utilities. Show me where YouTube, Twitter, or any other interactive web service has been declared a public utility—then show me the law (and subsequent binding court precedent) that says “this declaration is totally not a violation of the First Amendment”.
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Re: Re: Re:4
No, the railroads and telegraph were never public utilities, they were privately owned , and advertised their services out to the public, which is also what the social media companies do.
Re: Re: Re:5
Power companies and phone companies are owned by private interests, but your electricity and your phone service are still considered public utilities and governed as such. Now explain why YouTube, Twitter, and other such interactive web services—and not the Internet connection that helps you get to those sites—should be considered public utilities and governed as such by the government.
I can declare myself God, but that doesn’t make me God. Texas’s law doesn’t mean shit unless SCOTUS rules that the law is legally sound—and if SCOTUS does rule that way, you will see a massive change in how all interactive web services work going forward. You might like the idea of the government compelling Twitter to host all legal speech; I can all but guarantee that a majority of Twitter’s userbase would not.
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Re: Re: Re:6
I doubt it, on twitter my feed is based largely on who I “follow”, the Texas law doesn’t require that I follow everyone, it just requires that the I have the ability to follow who I want.
Re: Re: Re:7
So if twitter blocked everyone with texas ip adresses, by by your logic they’ve followed the law.
Re: Re: you can go beyond that
Even if YouTube wanted to host some sort of offensive speech, the real decision maker is the customer: the advertisers. If they don’t want their ads running next to the offensive speech, then YouTube will certainly try to accommodate them. The first rule of business is, the customer is always right.
The person posting the offensive speech is not a customer so why should YouTube give a flip about making them happy? YouTube would make an effort to accommodate people who create speech the advertisers like, because those people are valuable unpaid/poorly paid employees/suckers.
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Re: Re: Re:
hey troll
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Re: Re:
How about you stop shoveling shit into the mouths of trolls, Regular Mouse?
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Find me and make me stop with actual physical violence. Otherwise: You have no power over me, no matter what name (government or screen) you use to address me.
Re: Re: Re:2
…y’know what? On second thought, sure, I’ll give you exactly what you want.
Re: Re: Re:2
~ Sarah Williams (Jennifer Connelly)
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Google isn’t a social network, genius. YouTube is.
Any more off-topic comments you’d like to make?
Re: Paging Inigo Montoya...
“You keep using those words. None of them mean what you think they mean.”
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First, you’re conflating antitrust with common carrier status.
Second, which antitrust case are you referring to? The Epic case that isn’t about all the different services you’re referring to and only about the mobile app marketplace? Or the United States v. Google LLC case that is still in progress?
Third, Google hasn’t been adjudicated as a common carrier. Ohio is trying to argue that in a case that hasn’t gone to trial yet.
You’re just throwing words together and hoping nobody else knows as little as you do about the topics you’re pretending to reference.
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The Texas social media statute starts by declaring that they are common carriers.
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I can declare your posts to be satire, but that doesn’t make them satire.
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Re: Re: Re:2
Regular Mouse, stop feeding the fucking trolls.
Re: Re: Re:3
If the trolls aren’t going to get banned, then they need to have their bullshit called out.
Re: Re: Re:3
Bitch Cheese, stop kink shaming!
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Falsely.
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So the best you have is that a single state’s unconstitutional statute currently under review by the SCOTUS says so by your interpretation? Weak. Not only has it already been pointed out that you’re confusing Google with a social media company, but you’re also conflating common carrier status with multiple services that such a status wouldn’t apply to.
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Shit they probably should have told the FCC that. You know the government entity that controls common carriers. Otherwise they are going to be very surprised that the Texas legislature can overrule a federal agency.
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Google is a common carrier
No more so than Comacast internet isn’t a common carrier because Comcast owns TV channels.
i.e. not at all, fuckwit.
Common carrier status of one of many services provides by a company has no influence on the other services.
Google Fi is a common carrier. Youtube unquestionably is not.
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That is opposite of the finding of the antitrust judgement, that googles ownership of multiple services, and the bundling of those services, resulted in anti-competitive behavior.
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[citation needed]
Here, I’ll give you a head start: (https://www.courtlistener.com/docket/17443962/epic-games-inc-v-google-llc/?page=4)[https://www.courtlistener.com/docket/17443962/epic-games-inc-v-google-llc/?page=4]
Where does the antitrust case say that Google is a common carrier?
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Oh look, no citation incoming! You moved on to talking about how the 1st Amendment applies to technology in Canada.
[Apply Hitchens’ Razor here]
The WSJ editorial section was a forum for the far-right lunatic fringe decades before Trump ever ran for office.
Kudos for the stuck-clock moment, but the usual tenor of WSJ editorials isn’t a Trump thing. It’s not even a Murdoch thing.
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Anything that would harm social media in general (including even ExTwitter or Truth Social) is likely something that Rupert would support. To paraphrase Goldfinger, he’d welcome any enterprise that would increase his stock.
Ah right wing idiots.
The same people who want to return to whites only signs want to force every company to take their service.
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When Trump gets elected, I will bet Tim Scott is his VP
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that’s if he even get’s elected
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So what?
I’m fucking sick of hearing about black people.
I was raised to be colorblind and loved all races growing up, but I’m so sick of having “race race race” shoved down my throat that I’ve never been more racist than I am right now.
I would literally be ok with all black people being enslaved (even though by their very nature they’d be terribly unproductive, problematic workers).
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Whereas I was raised not to ignore individual differences, but respect people regardless of those differences and judge based only on behavior.
Yeah, right.
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So what?
I’m f-ing sick of hearing about professional football.
I guarantee you, that I get a metric shitload more American football shoved down my throat in a single season, than you get confronted by uncomfortable race issues in a decade.
But at least that doesn’t make me a shitty, bigoted, mendacious, whiny snowflake — so at least there’s that.
More whining about 'censorship'
Moderation on SM sites often tilts against abusive assholes who can’t follow a set of rules put in place to maximise the number of satisfied users and advertisers. The fact that there is a disproportionate overlap between Republicans/conservatives and said assholes is a YOU problem.
Re: Because it's never not relevant
Conservative: I have been censored for my conservative views
Me: Holy shit! You were censored for wanting lower taxes?
Con: LOL no…no not those views
Me: So…deregulation?
Con: Haha no not those views either
Me: Which views, exactly?
Con: Oh, you know the ones
(All credit to Twitter user @ndrew_lawrence.)
social media is media
And like other forms of media, it relies on advertisers. In general, nobody will subscribe to social media, because it’s too trivial to pay for, which makes advertising the sole business model.
What’s the first rule of business? The customer is always right. The advertisers, who are the customers, don’t like Nazis spewing venom right next to the ads for their fine products. There are some kinds of posts that advertisers like, some that they are neutral on, and some that they run away screaming from.
The first type is what’s valuable, and any site that knows its business will cultivate that type. The neutral type is okay. The toxic type needs to be removed. It’s worthless for advertising anyway, and why keep worthless products on the shelves?
People who make content the advertises like should be cultivated. People who make content worthless for advertising should be banned. The users aren’t even customers, they’re products. Why can’t a business decide this product is good, that one must go?
The Supreme Court should just let businesses run their business and stop meddling. As for parents worried about what the kids see, that’s on the parents to patrol. Take away their phones and laptops. When they’re old enough to have jobs and pay for their own electronics and internet connection, then they’ll be old enough to look at whatever they want.
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shut up spammer
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Can we all agree that neo-Marxists should be put in death camps?
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No. Most people are opposed to having death camps at all, and that there can be no moral justification for having one. This is true even for people who support the death penalty.
Most people in America also don’t believe that speech or beliefs—no matter how heinous or undesirable—should ever merit a death sentence by the government.
Minor quibble/question here:
Telephone companies are protected under some first amendment protections for expression, despite being common carriers, aren’t they? As in Sable Communications of California v. Federal Communications Commission, where carriers were deciding whether to carry dial-a-porn.
As would ISPs, if the FCC labeled them common carriers.
What's good for the digital goose is good for the paper gander...
Perhaps they realized that once the precedent has been set that online platforms can be legally required to publish/host anything that anyone posts offline platforms like themselves are that much closer to facing the same fate.
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I hope that this scenario doesn’t happen, but it appears to be possible or even likely now (via https://www.vox.com/scotus/2024/2/26/24083652/supreme-court-netchoice-paxton-moody-texas-florida-first-amendment-social-media-facebook-youtube)…
“Ordinarily, a plaintiff bringing a facial challenge ‘must establish that no set of circumstances exists under which the Act would be valid’ (although the rules are somewhat more plaintiff-friendly in First Amendment cases). And, while a majority of the Court appeared to agree Texas and Florida’s attempt to control YouTube or Twitter’s content moderation is unconstitutional, the two states’ laws are so broad that they may also impose obligations on other companies, such as Uber, Etsy, or Gmail, that are not unconstitutional.
“And so the Supreme Court appears likely to reinstate the Texas and Florida laws. This is not because the Court thinks they are constitutional, and not because the Court thinks that they are constitutional with respect to the three companies that Texas and Florida actually wanted to regulate. But the ham-handedly drafted laws at issue in the NetChoice cases sweep so broadly that they may have some ancillary effects that are permitted by the First Amendment.”
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vex is untrustworthy site
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doom saying?
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it’s actually 50/50 if you look deeper
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Another take:
And another:
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SCOTUSblog also has a summary.
An analogy that is also inapt. While a taxi driver may be legally obliged to accept me as a fare (as long as I have the money to pay), there’s nothing to stop the driver tossing me out of their cab if I barf all over the seat, whereas a phone company is obliged to keep me on as a customer even if I regularly make calls that are nothing but expletive-filled rants.
It’s been demonstrated repeatedly that conservatives are the ones getting kid gloves on social media.
I was not surprised by the WSJ Editorial Board take. They are not very MAGA and side far more with the pre-Trumpian conservative movement. I can’t recall when they ever came out aggressively for government regulation of digital platforms.
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Republicans are hardly their target audience. Take a look as the US top 250 and count how many democrats are on that list.
WSJ has always been direct centre of the U.S. political spectrum for their news.
WSJ is centre
A quick look at all sides places WSJ firmly in the middle. Neither left or right.
Their editorials routinely feature material from standard democrats and republicans, and all other walks of life.
Why the hate for WSJ? They’re one of the few remaining non-politically-driven sources in the country.
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“A quick look at all sides places WSJ firmly in the middle. Neither left or right.”
… in the present overton window.
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All sides a one of the most trusted reviewers of source products from the US point of view. With a diverse staff from many parties.
WSJ has always been centre. Occasional enough user votes will flag a disagree note, but the site has it either middle or one click right.
People confuse editorial content with news for discussion like this.