Justice Thomas Goes Weird Again; Suggests Twitter Can't Moderate & Section 230 Violates 1st Amendment

from the supreme-Quart-justice dept

Today was a weird one for Justice Thomas. Along with his bizarre and confusing dissent in the Oracle/Google case, he has done another one of his random walks down conspiracy theory nonsense lane on an unbriefed issue in which he gets to, once again, attack the 1st Amendment. He's done this a few times now. Two years ago he did this in writing an unprovoked attack on the 1st Amendment regarding NY Times v. Sullivan. Last year, he did it with an unprovoked and bizarre attack on Section 230. And now he's done it again.

Today, the Supreme Court declined to hear an appeal on the Knight 1st Amendment Center case, in which both the District Court and the Appeals Court made it clear that when a government official, using social media in an official capacity, allows replies on a posting (such as a tweet), they are creating a public forum in that space, and therefore cannot engage in viewpoint discrimination -- including blocking individuals for speech they disagree with.

A bunch of very confused and clueless people have (incorrectly) taken to arguing that this somehow means that Twitter itself is a "public forum" and cannot moderate content. That has always been very, very wrong. The courts were clear that they were only talking about the space beneath a public official's statements. The simplest way to think of it is this: If the government rents out an event hall to let the President give a speech, it cannot engage in viewpoint discrimination in blocking people from coming into the hall to hear the speech. That does not mean the event hall itself is now permanently a public forum, or that the event hall owners cannot block people they have banned from their property from attending the speech, or any other events.

And, basically, the argument has stayed with very confused and clueless people... until today, when Justice Thomas decided to put it front and center. It's hard to state how ridiculous this is. Not for the first time, Justice Thomas seems to have become the old cranky uncle who believes in conspiracy theory nonsense. Everything about what he writes here would fit more neatly into a Breitbart comment section or an OANN rant. That it's coming from a Supreme Court Justice is just crazy. Let's break this down bit by bit.

Respondents have a point, for example, that some aspects of Mr. Trump’s account resemble a constitutionally protected public forum. But it seems rather odd to say that something is a government forum when a private company has unrestricted authority to do away with it.

Again, it does not seem odd at all. It's how it usually works. It's how it works in my example above, when the government makes use of a private forum. Private forums have their own property rights, in the same way that, say, a private baker can choose not to print a message it disagrees with on a cake, but the government itself could not write a law preventing that baker from printing protected messages on cakes. The whole nature of our Constitution is kinda based on the fact that the government has limited authority. It's bizarre that Thomas argues it's "rather odd" to say that the government has less authority than private entities. That's how it's always been.

The disparity between Twitter’s control and Mr. Trump’s control is stark, to say the least. Mr. Trump blocked several people from interacting with his messages. Twitter barred Mr. Trump not only from interacting with a few users, but removed him from the entire platform, thus barring all Twitter users from interacting with his messages

Again, this is exactly how it has always worked. A private building owner can choose not to rent to the President to give a speech. But if they do rent, the President cannot block attendees based on their viewpoints. This isn't difficult.

Thomas then goes on a long Fox News-style rant about how the big internet companies have too much power, and that the Supreme Court will need to rule on that at some point. He suggests -- again, despite no briefing or oral arguments on this matter, but clearly influenced by nutty conspiracy theorists -- that it could be argued that sites like Twitter are common carriers or subject to public accommodation rules. Again, this is heard quite frequently among the conspiracy theory Trumpist set, but no serious legal analysis has suggested this is even remotely accurate.

The long history in this country and in England of restricting the exclusion right of common carriers and places of public accommodation may save similar regulations today from triggering heightened scrutiny—especially where a restriction would not prohibit the company from speaking or force the company to endorse the speech. See Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 684 (1994) (O’Connor, J., concurring in part and dissenting in part); PruneYard Shopping Center v. Robins, 447 U. S. 74, 88 (1980). There is a fair argument that some digital platforms are sufficiently akin to common carriers or places of accommodation to be regulated in this manner.

In many ways, digital platforms that hold themselves out to the public resemble traditional common carriers. Though digital instead of physical, they are at bottom communications networks, and they “carry” information from one user to another. A traditional telephone company laid physical wires to create a network connecting people. Digital platforms lay information infrastructure that can be controlled in much the same way. And unlike newspapers, digital platforms hold themselves out as organizations that focus on distributing the speech of the broader public. Federal law dictates that companies cannot “be treated as the publisher or speaker” of information that they merely distribute. 110 Stat. 137, 47 U. S. C. §230(c)

The analogy to common carriers is even clearer for digital platforms that have dominant market share. Similar to utilities, today’s dominant digital platforms derive much of their value from network size. The Internet, of course, is a network. But these digital platforms are networks within that network. The Facebook suite of apps is valuable largely because 3 billion people use it. Google search—at 90% of the market share—is valuable relative to other search engines because more people use it, creating data that Google’s algorithm uses to refine and improve search results. These network effects entrench these companies. Ordinarily, the astronomical profit margins of these platforms—last year, Google brought in $182.5 billion total, $40.3 billion in net income—would induce new entrants into the market. That these companies have no comparable competitors highlights that the industries may have substantial barriers to entry.

There's a hidden dig at Section 230 at the end of that second paragraph above -- though one that completely misunderstand the nature of 230 and falsely suggests that it was intended to make these platforms act like common carriers (which is the exact opposite of the stated intention of the drafters of 230).

There's also a weird (and confusing) dig at Mark Zuckerberg, Larry Page & Sergey Brin -- claiming (incorrectly) that Zuckerberg has full control over Facebook and Brin & Page control all of Google.

To be sure, much activity on the Internet derives value from network effects. But dominant digital platforms are different. Unlike decentralized digital spheres, such as the e-mail protocol, control of these networks is highly concentrated. Although both companies are public, one person controls Facebook (Mark Zuckerberg), and just two control Google (Larry Page and Sergey Brin). No small group of people controls e-mail.

That's... not quite right. There is, again, a kernel of truth in the idea that siloed services are different than protocol-based distributed services. That's a point I make all the damn time. But the conclusion elides (1) how protocols are actually managed and (2) how much control those three individuals actually have. It is true that those three have special voting power over their shares, but that does not give them the level of control that Thomas suggests. This also ignores the fact that in the last few years -- despite Thomas' claims -- we have seen competitors springing up over and over again.

Then we get to the bit that is getting a ton of attention today. Thomas argues in a footnote that Section 230 itself might violate the 1st Amendment. We first saw this insane argument -- and debunked it -- a few months ago. It has no basis in reality. Yet here's Thomas:

For similar reasons, some commentators have suggested that immunity provisions like §230 could potentially violate the First Amendment to the extent those provisions pre-empt state laws that protect speech from private censorship. See Volokh, Might Federal Preemption of SpeechProtective State Laws Violate the First Amendment? The Volokh Conspiracy, Reason, Jan. 23, 2021. According to that argument, when a State creates a private right and a federal statute pre-empts that state law, “the federal statute is the source of the power and authority by which any private rights are lost or sacrificed.” Railway Employees v. Hanson, 351 U. S. 225, 232 (1956); accord, Skinner v. Railway Labor Executives’ Assn., 489 U. S. 602, 614–615 (1989).

There are all sorts of oddities here. First, the citation of Eugene Volokh's piece entitled Might Federal Preemption of Speech-Protective State Laws Violate the First Amendment?. Not that I'm against the Supreme Court randomly citing smart blog posts from thoughtful commentators, but it's still... a little weird. And if you actually read Volokh's piece, which itself is a response to the Vivek Ramaswamy and Jed Rubenfeld Wall Street Journal op-ed that I mentioned above, it seems fairly skeptical of the idea that 230 could possibly violate the 1st Amendment. Instead, it's trying to set out the strongest possible argument for that, which Volokh seems to make reluctantly for the sake of argument, noting multiple times that he doesn't necessarily agree with it, and it relies on a Supreme Court ruling that he believes is incorrect.

But the biggest oddity of all is... what the fuck is he actually trying to say here? His argument is that 230 might be unconstitutional because it might "pre-empt state laws that protect speech from private censorship." Beyond putting a shiny gloss on Volokh's argument, private censorship is allowed. That's kind of important. I mean, Thomas wrote a whole concurrence in the Masterpiece Bakeshop case arguing this very point... in the other direction.

Either way, this is now the third time in which Justice Thomas has randomly mused about free speech in a way that seems designed to attack social media and in line with the nutty conspiracy theories seen on Fox News/OANN/Breitbart. It's almost as if he's living in a weird alternative reality bubble and disconnected from the real world. While he mentions it in passing in his weird dissent, he might want to actually reread the Halleck decision which he signed onto, and which makes it quite clear that private companies can moderate content how they see fit on their platforms.

Unfortunately, though, as with his last two random outbursts on these issues, it's likely we're going to see lots of confused and ignorant people citing Thomas' random unbriefed musings as proof that their nonsense has legitimacy.

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Filed Under: 1st amendment, clarence thomas, content moderation, free speech, section 230
Companies: twitter


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  • icon
    Thad (profile), 5 Apr 2021 @ 10:36am

    I'm old enough to remember when Clarence Thomas had a reputation for being a First Amendment absolutist.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Apr 2021 @ 10:53am

    He's in a molting phase right now. Once he sheds his old skin he'll settle down again.

    reply to this | link to this | view in chronology ]

  • icon
    Stephen T. Stone (profile), 5 Apr 2021 @ 10:53am

    I wish I could say I was surprised by this, but Republicans/conservatives have been the political party of “free speech for me but not for thee” for a good long while. I would bet on seeing a significant number of future lower court rulings from Trump appointees that reflect such an ethos.

    reply to this | link to this | view in chronology ]

    • icon
      Thad (profile), 5 Apr 2021 @ 11:29am

      Re:

      I wish I could say I was surprised by this, but Republicans/conservatives have been the political party of “free speech for me but not for thee” for a good long while.

      Usually not at the Supreme Court level, though; the Roberts Court has taken a pretty expansive interpretation of the 1A.

      Thomas used to be a pretty reliable part of those decisions, too. His more recent musings about curtailing free speech seem like something of a change from his earlier positions.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Apr 2021 @ 11:04am

    You're screwed.

    reply to this | link to this | view in chronology ]

  • icon
    crade (profile), 5 Apr 2021 @ 12:11pm

    "pre-empt state laws that protect speech from private censorship. "

    "Private censorship" is pretty clearly a form of private speech.. and yeah the government can't force your church to allow sermons by muslims in the interest of forcing neutrality or whatever if the church owners don't want to.
    and yeah, the first amendment pre-empts such state laws. That wut it for right? I would expect this stuff to be visceral level for any conservative

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    • icon
      Stephen T. Stone (profile), 5 Apr 2021 @ 12:20pm

      "Private censorship" is pretty clearly a form of private speech

      It’s also not censorship.

      reply to this | link to this | view in chronology ]

      • icon
        crade (profile), 5 Apr 2021 @ 12:50pm

        Re:

        Thus the scare quotes.. It's "I won't have that in my house".. Whatever you call it, just a decision by a private entity about their own actions and hard earned property I guess..

        Certain things I feel trigger my conservative instincts and certain things trigger liberal ones, but these attempts to paint this sort of crap as conservative just piss me off.. Even if I don't agree with how everyone uses em, people gotta have some base amount of freedom in their lives that the government doesn't fuck with right? If you don't draw the line at deciding what you support or don't support with your own efforts where can you draw it?

        reply to this | link to this | view in chronology ]

        • icon
          Stephen T. Stone (profile), 5 Apr 2021 @ 1:04pm

          these attempts to paint this sort of crap as conservative just piss me off

          Conservatives are the political faction that have more heavily pushed for the revoking/reform of Section 230, and they have done so out of a feigned concern about “censorship” that smokescreens their “we’re mad that we can’t be bigots on Twitter” grievances. Liberals/progressives might have issues with 230, but they’re not out here trying to say Twitter doesn’t have a right to moderate speech.

          If’n you don’t like which group is being castigated as “the opponents of free speech, free association, and private property rights”, that sucks for you. But the only ones who can fix that problem is the castigaed group in question. I can’t snap my fingers and make this reality any less real.

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          • icon
            crade (profile), 5 Apr 2021 @ 1:49pm

            Re:

            It's not the liberals painting the conservatives as opponents of free speech and property rights that bothers me, thats what I'm doing :) It's the so called conservatives painting what they are doing as being backed by "conservative values" that bothers me..

            reply to this | link to this | view in chronology ]

            • icon
              Stephen T. Stone (profile), 5 Apr 2021 @ 1:59pm

              Fair enough. 👍

              reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 5 Apr 2021 @ 3:22pm

              Re: Re:

              This is why i sometimes use the "not really" quotes when mentioning "conservatives". A big part of the issue is that modern conservatism in the States, writ large, is big-tent conservatism. This is very much on purpose, and certainly is as at least as old as the Southern Strategy. Then there was Reagan. Now we have ... whatever the actual hell you call this current absurd mess.

              There's this supposed core of conservatism that means "yeah more like the original Constitutional intent" but even the original conservatives were lying or self-deceptive about that. No it means every sort of social, political, economic, and religious conservatism all rolled into one. This includes mutually contradictory versions. But most want to conserve an entirely imaginary thing form imaginary pasts via methods which have never, ever worked for their stated goals. Some - i have no idea, they are just along for the weird ride since they started believing shit that other self-declared conservatives spew. They do not apparently hold any (or cannot articulate any) traditional political conservative core beliefs. (The beliefs which were crazy radical when the country was being founded.)

              Another part of the issue is the poorly-defined conservative - liberal spectrum end being assigned to two parties in a two-party system. Wasn't always that way so much. Actually, it isn't even now, as there are plenty of conservative Democrats, even if there are nearly zero Republicans who are "liberal" in some area. But all Democrats are complete "leftists" for some reason. Like the workers should control the means of production or something. I guess. Or maybe "liberal" or "progressive" or "left" is merely externally defined by not being far enough to whatever is considered "the right". Currently that looks like pro- monarch / dictator for a religious ethnostate sort of level of conservatism, where everyone is free because authoritarianism. It all makes sense!

              I miss the charming economic lies and light racism of William F. Buckley Jr. Those were the days. He was even mildly funny.

              reply to this | link to this | view in chronology ]

              • icon
                crade (profile), 5 Apr 2021 @ 4:35pm

                Re: Re: Re:

                I don't think big tent is really a bad thing, but your big tent should be about trying to find common ground and compromises to join together and act on the lowest common denominator actions that will benefit the whole tent not about pretending that everyone in the big tent has to believe everything everyone else in the tent believes and everyone in the tent has to "stand together" to get every horrible thing anyone throws out forced on everyone even if it's completely against their values.

                reply to this | link to this | view in chronology ]

              • icon
                Scary Devil Monastery (profile), 6 Apr 2021 @ 2:58am

                Re: Re: Re:

                "Now we have ... whatever the actual hell you call this current absurd mess."

                Thinly veiled bigotry and a yearning back to simpler times when men were real white men, women were helming the kitchen, and the brown dudes were in the fields of the plantation?

                The modern US "conservatives" really aren't. Those who would be recognizable as such from the Eisenhower era are, today, moderate democrats. The southern strategy gradually drove out every "normal" conservative as the party began aligning more toward keeping whitey on top rather than the old message of fiscal and legislative conservatism.

                The republicans used to be the party putting faith in science and mistrusting religion. It was once upon a time the birthplace of liberalism and egalitarianism. That all ended when Reagan and later on Bush put the last stones on the work begun by Nixon and Goldwater.

                "No it means every sort of social, political, economic, and religious conservatism all rolled into one. This includes mutually contradictory versions."

                In political philosophy what they have now is called millennialism. The belief that in the days of yore people were "purer" and grander, society was fairer, and no one knew want in the land of milk and honey. The belief that this mythical era all ended because of <insert scapegoat here> and that the chosen few now have to roll the clock back to simpler times, possibly by way of a götterdämmerung or "war to end all wars".

                Essentially the modern-day US conservatives operate by the same core principles which radicalized and empowered the original nazis. They just lack the trappings - or perhaps not so much given that they couldn't even keep nazi designs out of their latest CPAC, the speaker's stage of which garnered comments re it's odd design until it was identified as the "Odal" rune worn by the nazi SS. That rune meaning "Heritage".

                reply to this | link to this | view in chronology ]

                • icon
                  Scary Devil Monastery (profile), 6 Apr 2021 @ 3:06am

                  Re: Re: Re: Re:

                  [Addendum]

                  And no one can tell me it's just coincidence the republican CPAC used, as speaker's stage, a rune symbol worn by the particular SS division responsible for guarding racial purity.

                  It's even the version of the rune with wings. The republican speakers might as well have been addressing the crowd from on top of a swastika.

                  reply to this | link to this | view in chronology ]

                • icon
                  Scary Devil Monastery (profile), 6 Apr 2021 @ 6:00am

                  Re: Re: Re: Re:

                  [Addendum 2]

                  And good grief, wouldn't you know it...that symbol's the bona fide official symbol for the National Socialist Movement in the US.

                  The speakers might as well have been addressing the crowd from on top of a swastika.

                  reply to this | link to this | view in chronology ]

    • icon
      Thad (profile), 5 Apr 2021 @ 3:47pm

      Re:

      and yeah, the first amendment pre-empts such state laws. That wut it for right?

      No, prior to the ratification of the Fourteenth Amendment, legal precedent held that the Bill of Rights only restricted the federal government, not the states. The legal doctrine establishing that (among other things) the First Amendment restricts the states is called incorporation, and it only goes back about a hundred years.

      You may be unsurprised to learn that Thomas has a more restrictive view of incorporation than the other justices on the court.

      reply to this | link to this | view in chronology ]

    • identicon
      Tom T, 7 Apr 2021 @ 8:41am

      Re:

      Then they can give up their section 230 immunity. Section 230 is a qualified immunity. If we read 'otherwise objectionable' as catch all as some courts have done then it becomes an unqualified immunity. Right now we have courts going both ways on this but it looks more and more like the SCOTUS will not come down on the side of a broad reading of section 230. After all 'overly broad' is one of the key factors the court uses in declaring a law illegal.

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      • icon
        Toom1275 (profile), 7 Apr 2021 @ 11:13am

        Re: Re:

        [Asserts facts not in evidence]

        reply to this | link to this | view in chronology ]

      • icon
        Mike Masnick (profile), 7 Apr 2021 @ 11:17am

        Re: Re:

        Then they can give up their section 230 immunity. Section 230 is a qualified immunity. If we read 'otherwise objectionable' as catch all as some courts have done then it becomes an unqualified immunity. Right now we have courts going both ways on this but it looks more and more like the SCOTUS will not come down on the side of a broad reading of section 230. After all 'overly broad' is one of the key factors the court uses in declaring a law illegal.

        What courts have read "otherwise objectionable" as a catch all?

        You do realize that nearly all cases have been decided on (c)(1) grounds and (c)(1) does not include "otherwise objectionable." That's only in (c)(2) and has almost never come up in these cases?

        reply to this | link to this | view in chronology ]

  • icon
    Samuel Abram (profile), 5 Apr 2021 @ 12:39pm

    We should be so fortunate…

    We should be so lucky that the 8 other justices are not as batshit insane as Clarence Thomas (at least when it comes to 1st Amendment jurisprudence).

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 5 Apr 2021 @ 1:09pm

    And, basically, the argument has stayed with very confused and clueless people... until today, when Justice Thomas decided to put it front and center.

    No, from the looks of it it's still mostly confined to people falling into those categories, it's just those categories now get to count a supreme court justice in their number.

    Beyond putting a shiny gloss on Volokh's argument, private censorship is allowed. That's kind of important. I mean, Thomas wrote a whole concurrence in the Masterpiece Bakeshop case arguing this very point... in the other direction.

    And like that he played his hand, and showed himself to be yet another 'free speech only counts for speech I agree with' hypocrite. I wish that lot would get the guts and honesty to just outright admit it rather than tiptoeing around, but I suppose their actions are as much honesty on the subject as can be expected of such hypocritical people.

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  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 5 Apr 2021 @ 5:51pm

    Two years ago he did this in writing an unprovoked attack on the 1st Amendment regarding NY Times v. Sullivan.

    Not at all. He was attacking the expansionist view of the 1st Amendment conjured into existence by the Supreme Court in that case that upended centuries of precedent not only in the USA but in the British common law that inspired the Bill of Rights, that consistently held that defamation is not and never has been protected speech. It certainly wasn't considered as such by the people who wrote the First Amendment!

    And Thomas's writing was not "unprovoked" in the least; the media has been provoking this ever since the Sullivan decision was handed down, abusing it to lie about people and assassinate their character with impunity because Sullivan bars their victims from their First Amendment right to petition the government for redress!

    reply to this | link to this | view in chronology ]

    • icon
      Toom1275 (profile), 5 Apr 2021 @ 6:54pm

      Re:

      [Asserts facts not in evidence]

      reply to this | link to this | view in chronology ]

    • icon
      nasch (profile), 5 Apr 2021 @ 10:01pm

      Re:

      that case that upended centuries of precedent... that consistently held that defamation is not and never has been protected speech.

      It did no such thing. Rather, it redefined the standard necessary to prove defamation of a public figure. Defamation is still not protected speech, but there are some things that might have been defamation before the decision and not after it.

      reply to this | link to this | view in chronology ]

    • icon
      Mike Masnick (profile), 5 Apr 2021 @ 11:52pm

      Re:

      And Thomas's writing was not "unprovoked" in the least; the media has been provoking this ever since the Sullivan decision was handed down, abusing it to lie about people and assassinate their character with impunity because Sullivan bars their victims from their First Amendment right to petition the government for redress!

      It does no such thing. They still have every right to petition for redress. They just have to meet a reasonably high bar to avoid being able to abuse defamation law to silence criticism or, as in the case of Sullivan, simple mistakes.

      reply to this | link to this | view in chronology ]

      • identicon
        Tom T, 7 Apr 2021 @ 8:33am

        Re: Re:

        Reasonably high bar? Its an nearly impossibly high bar. Its such a high bar that only about have a dozen cases have ever made it past dismissal.

        reply to this | link to this | view in chronology ]

        • icon
          Mike Masnick (profile), 7 Apr 2021 @ 11:18am

          Re: Re: Re:

          Reasonably high bar? Its an nearly impossibly high bar. Its such a high bar that only about have a dozen cases have ever made it past dismissal.

          Don't you think the 1st Amendment deserves a high bar?

          reply to this | link to this | view in chronology ]

          • identicon
            Tom T, 8 Apr 2021 @ 7:08am

            Re: Re: Re: Re:

            Not a nearly impossible bar that only applies to some. If public figures have to overcome a nearly impossible bar then that isn't equal protection under the law.

            reply to this | link to this | view in chronology ]

            • icon
              Scary Devil Monastery (profile), 8 Apr 2021 @ 8:00am

              Re: Re: Re: Re: Re:

              "Not a nearly impossible bar that only applies to some."

              And it doesn't.

              What is "impossible" here seems to be justifying the argument to begin with.

              Now if you can't produce an argument without resting it on falsehood then the issue isn't that the bar is set too high.

              reply to this | link to this | view in chronology ]

        • icon
          Scary Devil Monastery (profile), 8 Apr 2021 @ 7:57am

          Re: Re: Re:

          " Its an nearly impossibly high bar."

          As it should be. You think SCOTUS should pull off rulings which essentially abolish large parts of the constitutional amendments rather than affirm them?

          reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 5 Apr 2021 @ 7:20pm

    That running gag of mine comes to mind.

    Once upon a time humans used to put elders on ice floes & set them adrift to protect the tribe from people who would listen to the elder even when it was clear the elder was insane.

    We hate to see it but can we be honest for a second?
    He is the same age group as millions of citizens who hand over billions of dollars to scammers who call them & scare them into paying.
    Our "leadership" skews heavily into the demographic who can't open a PDF without assistance, yet we listen to their views of tech they've never used themselves?

    Yeah I don't think we need 20 somethings on SCOTUS, but my FSM can we get people still attached to reality?

    Thomas screaming how gay marriage was wrong because people didn't like it... Loving v. Virginia wasn't well liked by people either but here we are with a sitting black SCOTUS Justice married to a QANON infected white woman claiming teh gays getting married caused all of these ills to society that could have just been copypastaed from people screaming about Loving.

    What would the nation look like today if we hadn't reelected people who thought decorum & the right thing would make the other side put the country first over their political ambitions?

    reply to this | link to this | view in chronology ]

    • icon
      Thad (profile), 6 Apr 2021 @ 9:33am

      Re:

      What would the nation look like today if we hadn't reelected people who thought decorum & the right thing would make the other side put the country first over their political ambitions?

      ...presumably worse, since that implies we would have elected people on the other side?

      reply to this | link to this | view in chronology ]

      • icon
        That Anonymous Coward (profile), 7 Apr 2021 @ 4:06am

        Re: Re:

        Possibly better, once you manage to dump an incumbent for failing to put the voters first you'd be shocked to see how the replacement will do their best to keep the voters happy with things beyond the same old talking points.

        I mean its not like we've spent way more time on trying to pass laws to stop abortion from happening while ignoring the water supply in many places that is poisoning children.
        Or looked closer at cancer clusters striking children.

        But then unborn are a great demographic,
        they require nothing
        you don't have to ever do anything for them
        people will blindly support you

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Apr 2021 @ 8:22pm

    What's Ginni up to lately?

    One might wonder how another of Justice Thomas' "random walks down conspiracy theory nonsense lane" might intersect with Ginni's work . . .

    reply to this | link to this | view in chronology ]

  • icon
    crazy_diamond (profile), 5 Apr 2021 @ 9:17pm

    Having read Thomas' opinions over the decades and noted his increasingly bizarre "reasoning", that in my non-medical opinion the Justice is suffering from late stage syphilis.

    reply to this | link to this | view in chronology ]

  • icon
    nasch (profile), 5 Apr 2021 @ 10:05pm

    Preemption

    For similar reasons, some commentators have suggested that immunity provisions like §230 could potentially violate the First Amendment to the extent those provisions pre-empt state laws that protect speech from private censorship.

    Um... isn't that exactly how it's supposed to work? Federal law preempts state law. If a state has a law that is contradicted by a federal law, the state law is effectively void.

    reply to this | link to this | view in chronology ]

    • icon
      Brainulator9 (profile), 6 Apr 2021 @ 9:33am

      Re: Preemption

      Not if the Tenth Amendment has anything to say about that, some may say.

      reply to this | link to this | view in chronology ]

      • icon
        nasch (profile), 6 Apr 2021 @ 10:00am

        Re: Re: Preemption

        The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

        My understanding is the supremacy clause extends to statute because of Congress' constitutional power to make law. So the 10th would not apply, because it is in fact a power delegated to the United States by the Constitution.

        reply to this | link to this | view in chronology ]

  • identicon
    bshock, 6 Apr 2021 @ 10:03am

    Vending Machine Justice Strikes Again

    It's usually fairly easy to understand a viewpoint from Justice Thomas -- just find out who's paying him this time.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Apr 2021 @ 11:02am

    So close to understanding

    This is incredible... you see that there's understanding that platforms and protocols are different sort of things

    But dominant digital platforms are different. Unlike decentralized digital spheres, such as the e-mail protocol

    ... just need to take one more mental step:
    an open platform is still owned (and operated) by some entity.
    an open protocol can be operated by any entity (sufficient nerd-power is assumed) and is not necessarily owned by one.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    icon
    restless94110 (profile), 6 Apr 2021 @ 1:10pm

    Pretzel

    It was kind of fun for about 4 paragraphs reading you twist yourself into what they call pretzel logic.

    You rent a hall and then some people come and so then that hall is not allowed to call itself a hall? Or a forum? Or whatever you decided it was? Or was not?

    I didn't read too much more but let me take a stab at your point: Anyone who is liberal and totalitarian can do anything he/she/it wants to do to anyone they don't like, and then every one in the mob (i.e., corporations, celebs, mascots, schoolmarms, etc.) can then cancel anyone unless they agree?

    And that is your grand vision of a new world? Hmm, maybe that hall you rented should be turned into a vegetarian market or something.

    I don't understand how anyone with even half a brain would support this line of thought.Don't you see where this leads? Hint: it ain't any place where the sun shines.

    reply to this | link to this | view in chronology ]

    • icon
      nasch (profile), 6 Apr 2021 @ 4:25pm

      Re: Pretzel

      If you can't comprehend what is being written maybe you should go find a different site.

      reply to this | link to this | view in chronology ]

      • identicon
        Rocky, 6 Apr 2021 @ 4:39pm

        Re: Re: Pretzel

        He usually makes it through the whole headline before coming up with some haphazard idea for an argument that's totally divorced from facts and reality just so he can rail at something.

        reply to this | link to this | view in chronology ]

    • icon
      Toom1275 (profile), 6 Apr 2021 @ 8:04pm

      Re: Pretzel

      It was kind of fun for about 4 paragraphs reading you twist yourself into what they call pretzel logic.
      [Projects facts not in evidence]

      reply to this | link to this | view in chronology ]

    • icon
      Mike Masnick (profile), 6 Apr 2021 @ 10:12pm

      Re: Pretzel

      Did you have a stroke before writing this comment? It makes no sense.

      It was kind of fun for about 4 paragraphs reading you twist yourself into what they call pretzel logic.

      That applies to your comment significantly more than my post.

      You rent a hall and then some people come and so then that hall is not allowed to call itself a hall? Or a forum? Or whatever you decided it was? Or was not?

      No one said a hall is not allowed to call itself a hall. The issue is whether or not, under the law, there is a public forum created. If the government has control over the space -- even temporarily -- for that time it is a public forum and the 1st Amendment applies. Outside of that, it does not. This is not hard for people who have more than two functioning brain cells.

      I didn't read too much more but let me take a stab at your point

      So the part you did read you totally did not understand, and now you're going to make shit up?

      Anyone who is liberal and totalitarian can do anything he/she/it wants to do to anyone they don't like, and then every one in the mob (i.e., corporations, celebs, mascots, schoolmarms, etc.) can then cancel anyone unless they agree?

      No. That is not even remotely what I said, and considering I equally mock people across the political spectrum when they do dumb things, your weak (revealing) attempt to try to inject a partisan spin on my statement is incredibly telling about your silly little demented mind.

      And that is your grand vision of a new world? Hmm, maybe that hall you rented should be turned into a vegetarian market or something.

      What are you even talking about?

      I don't understand how anyone with even half a brain would support this line of thought.Don't you see where this leads? Hint: it ain't any place where the sun shines.

      You should have stopped after the first 3 words. That's the only part that was accurate.

      reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 8 Apr 2021 @ 8:07am

      Re: Pretzel

      "Anyone who is liberal and totalitarian can do anything he/she/it wants to do to anyone they don't like, and then every one in the mob (i.e., corporations, celebs, mascots, schoolmarms, etc.) can then cancel anyone unless they agree? "

      That's a long way to go around declaring that you think it unfair that the owner of property should be able to evict whoever the owner wants to evict from said property, especially when the terms of stay are clearly posted when you come in.

      "It was kind of fun for about 4 paragraphs reading you twist yourself into what they call pretzel logic."

      It only turns into a pretzel AFTER you decided to redefine and change what was said. But hey, Restless, after your pointed assertions about The Brown People I don't think anyone here has missed which end of the political spectrum you're posting from - so I don't think anyone is very surprised that you started out by trying to move the goalposts and put up a strawman for cheap rhetoric tricks.

      "I don't understand how anyone with even half a brain would support this line of thought."

      Given that "line of thought" is entirely a strawman of your own design probably no one does support it.

      reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Tom T, 7 Apr 2021 @ 8:29am

    This entire piece is mind-numbing in its lack of self awareness. We get it. You are a tech guy and you complain endlessly that social media isn't the same as phone, radio. I have degrees in electrical engineering, computer engineering, and computer science. I get it. But what you don't get is that your technical jargon is largely immaterial and largely an argument about how many angles can fit on the head of a pin.

    But as an electrical engineer I'm under the regulation of the state regulatory commission which regulates electrical utilities, telecoms, gas, water, waste disposal etc. I'm also under the regulation of the state licensing board which regulates Architecture, Land Surveying, and Engineering (All fields of engineering!).

    He is what blows up your entire ignorant argument. As different as these things are they are enough alike that they all fall under the same regulatory framework and follow largely the same rules.

    This is where you specialized knowledge makes you completely ignorant. You have lacked the ability to generalize and regulation is all about generalization.

    reply to this | link to this | view in chronology ]

    • icon
      nasch (profile), 7 Apr 2021 @ 9:11am

      Re:

      As different as these things are they are enough alike that they all fall under the same regulatory framework and follow largely the same rules.

      You're saying that because electrical utilities and waste disposal can be regulated by the same body, therefore... what? Web sites should be regulated as common carriers? I don't even get where you're going with this.

      This is where you specialized knowledge makes you completely ignorant.

      Maybe your specialized knowledge has led you to believe that every field is like yours, and should be regulated in the same ways.

      reply to this | link to this | view in chronology ]

      • identicon
        Tom T, 7 Apr 2021 @ 10:25am

        Re: Re:

        And BTW this isn't a big government thing. There shouldn't be regulatory boards and regulatory frameworks individualized for every single industry, field, sub-filed across the board. It would be a bureaucratic nightmare that would grind things to a halt.

        Its a good thing that similar industries and professions are grouped together under large generalized frameworks. It keeps the regs simple and easy to follow and it limits the red tape.

        reply to this | link to this | view in chronology ]

    • icon
      Toom1275 (profile), 7 Apr 2021 @ 11:14am

      Re:

      [Projects facts not in evidence]

      reply to this | link to this | view in chronology ]

    • icon
      Mike Masnick (profile), 7 Apr 2021 @ 11:22am

      Re:

      You are a tech guy and you complain endlessly that social media isn't the same as phone, radio.

      What?

      He is what blows up your entire ignorant argument. As different as these things are they are enough alike that they all fall under the same regulatory framework and follow largely the same rules.

      Um, no. This is ignorant garbage. Utility regulation requires a few specific things to qualify, and social media does not mean any of the common definitions of a utility service, not the least of which is that all of the services you name are commodity services in which service is undifferentiated. That is not the case with social media.

      Separately, most of the services you name require some sort of government facilitation for infrastructure. That is not the case for social media.

      I'm not a "tech guy." I'm a guy who has spent my entire adult life exploring these particular issues around internet and speech regulation -- and that includes extensive knowledge of where and how it's different from utility regulation.

      So, maybe do some fucking research before you spew ignorant nonsense calling me ignorant.

      reply to this | link to this | view in chronology ]

      • identicon
        Tom T, 7 Apr 2021 @ 12:06pm

        Re: Re:

        Have you thought that perhaps the issue is that social media did not exist when those "common definitions of a utility service" were invented? Had social media existed then perhaps we would have a induced social media in such a definition. This is not an easy question and reliance on frameworks over a century old is what allows that are clearly acting as common carriers to weasel out of regulation.

        We are exempt from the rules because we did not exist when they rules were created and to change the rules to include us would be unamerican.

        reply to this | link to this | view in chronology ]

        • icon
          Toom1275 (profile), 7 Apr 2021 @ 12:32pm

          Re: Re: Re:

          In Tom's fantasyland, 1996 is "over a century old."

          Perhaps he never thought that perhaps his issue is he demonstrates zero knowledge of any subject he's trolling about.

          reply to this | link to this | view in chronology ]

          • identicon
            Tom T, 8 Apr 2021 @ 7:12am

            Re: Re: Re: Re:

            I'm referring to how we define common carriers, utilities etc. The first utility regulations came about in the late 19th century.

            reply to this | link to this | view in chronology ]

        • icon
          Mike Masnick (profile), 7 Apr 2021 @ 5:27pm

          Re: Re: Re:

          Have you thought that perhaps the issue is that social media did not exist when those "common definitions of a utility service" were invented?

          That's not how this works. The concept of what gets common carrier/utility service is well established. You don't just make up new things.

          This is not an easy question and reliance on frameworks over a century old is what allows that are clearly acting as common carriers to weasel out of regulation.

          We did this in the 96 Telecom Act, and while there are still remaining fights on the margins over the definitions there, they inherently do not cover anything anywhere like social media, and if they tried, they'd almost certainly run afoul of 1st Amendment strict scrutiny.

          Trust me. Stop acting like you know this topic. You do not. If you keep this up you're going to end up looking foolish (as if you don't already).

          reply to this | link to this | view in chronology ]

          • identicon
            Tom T, 8 Apr 2021 @ 7:18am

            Re: Re: Re: Re:

            When in your life have you ever worked in a regulated industry? Stop acting like you know this topic.

            You have made statements about regulation that are mind-numbly ignorant. From your arrangement instead of their being a handful or regulatory boards and frameworks there would need to be at least a few hundred barbecue every industry and sub-field would have to have its own specific regulatory frame work.

            Yes social media and telecom are not literally the same thing but they are enough alike to fall under the same regulation. I'm far more different from an architect or a land surveyor than social media is from telecom but I fall under the same regulatory framework as architects and land surveyors.

            Your entire argument is fundamentally flawed.

            reply to this | link to this | view in chronology ]

            • icon
              nasch (profile), 8 Apr 2021 @ 7:44am

              Re: Re: Re: Re: Re:

              Yes social media and telecom are not literally the same thing but they are enough alike to fall under the same regulation.

              Ah, I see the problem now. You have absolutely no idea what you're talking about. Social media and telecom have almost nothing in common. Telecom is more like a storm drain system than it is like a social media platform.

              reply to this | link to this | view in chronology ]

            • icon
              Toom1275 (profile), 8 Apr 2021 @ 10:17am

              Re: Re: Re: Re: Re:

              You have made statements about regulation that are mind-numbly ignorant.

              [Projects facts not in evidence. As always]

              reply to this | link to this | view in chronology ]

        • icon
          Scary Devil Monastery (profile), 8 Apr 2021 @ 8:14am

          Re: Re: Re:

          "Have you thought that perhaps the issue is that social media did not exist when those "common definitions of a utility service" were invented?"

          The analog equivalent of social media is the common bar, taverna, or coffee shop. Always has been.
          The sole distinction is that it is roomier and the guests can come from far away.

          So yeah, we only have about 2500 years worth of experience in how free speech should be handled in a privately owned platform which allows people to enter under rules set by the platform owner.

          "Had social media existed then perhaps we would have a induced social media in such a definition."

          Ironically this is so far a US-only problem. Every other nation in the world doesn't even need 230 protection because the rules on handling mass communication is built right into the basic telecommunications acts or national charter.

          Looking at the experience of the rest of the world then yes, the US needs 230 to accomplish what everyone else enjoys. Or you can abolish it and the first people to be silenced will be the alt-right, conservatives, and anyone else, ever, who has an opinion to which any person with access to a US lawyer will take offense.

          Honestly, by now I think I'd welcome it. Every american would have to congregate on a europe or canada-based forum because no company in the US would bother setting up a comment field.

          reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Apr 2021 @ 4:57pm

      Re:

      You have named things that are regulated because mistakes can kill or injure innocent people directly. That consideration does not apply to social media, where you may as well talk about regulating conversation in pubs, clubs and cafes which are the nearest equivalent to social media.

      reply to this | link to this | view in chronology ]

      • identicon
        Tom T, 8 Apr 2021 @ 7:20am

        Re: Re:

        Telecom, radio, TV, Cable etc cannot kill or injure people directly but they still fall under regulation from the same regulatory framework.

        A hair dresser has to be licensed and fall under a boards regulations? Why is social media exempt?

        reply to this | link to this | view in chronology ]

        • icon
          Scary Devil Monastery (profile), 8 Apr 2021 @ 8:19am

          Re: Re: Re:

          "A hair dresser has to be licensed and fall under a boards regulations? Why is social media exempt?"

          Because trying to "license" someone to be allowed to host a social gathering is something today only done in NK?
          As I recall the old DDR tried to swing it but even they couldn't manage.

          Now, advocating that the state seize control over a social media platform for the sake of governing what speech the owner may or may not allow...that's not even conservative anymore. It's something advocated exclusively by modern Maoists and variants of Marxists...and of course, national socialists eager to not get thrown out for hollering the N-word or antisemitic slurs too loudly.

          But you knew that.

          reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Tom T, 7 Apr 2021 @ 10:18am

    "You're saying that because electrical utilities and waste disposal can be regulated by the same body, therefore..."

    I'm saying that they are regulated by the same body in the same general way. There is very little in separate regulations as it pertains to specific industries. We all operate under the same regulatory framework. When experts, who haven't spend much time in their lives working in a regulated industry, this appears to be the case with Mr. Masnick, they tend to make the same arguments Mr. Masnick makes. But those really boil down to priests arguing over how many angels can fit on the head of a pin.

    If electrical utility is as much like waste disposal that they can be regulated under the same framework and if a chemical engineer is as much like a land surveyor that they can be regulated under the same professional framework then social media is as much like telecom, radio, etc. to be regulated under the same regulatory framework.

    reply to this | link to this | view in chronology ]

    • icon
      nasch (profile), 7 Apr 2021 @ 2:52pm

      Re:

      When experts, who haven't spend much time in their lives working in a regulated industry, this appears to be the case with Mr. Masnick, they tend to make the same arguments Mr. Masnick makes.

      Argumentum ad hominem here. If the argument is flawed, you should be able to point out the flaws in the argument itself (which I notice you still have not done). Attacking the credentials or experience of the person making the argument is not appropriate and should not be necessary.

      social media is as much like telecom, radio, etc. to be regulated under the same regulatory framework.

      I can see how you might think since they're both some kind of transmission of information that it would be appropriate to regulate them the same way. But there are quite significant differences as well.

      https://www.publicknowledge.org/blog/what-makes-a-common-carrier-and-what-doesnt/

      reply to this | link to this | view in chronology ]

      • identicon
        Tom T, 8 Apr 2021 @ 7:24am

        Re: Re:

        Are they as significant as the differences between me and a land surveyor?

        Do you not believe in equal protection under the law? Why should social media get this special cut out that doesn't apply anywhere else?

        reply to this | link to this | view in chronology ]

        • icon
          Scary Devil Monastery (profile), 8 Apr 2021 @ 8:22am

          Re: Re: Re:

          "Why should social media get this special cut out that doesn't apply anywhere else?"

          Because free speech does indeed get a special cut out which doesn't apply to any other form of commercial or regulatory oversight.

          Why does 2A and the 5th get special cut-outs? Answer; Because they're required to safeguard freedoms hence are not to be infringed upon by attempts to legislate away the rights of the citizenry. And the same applies to social media - the market gossip of the 21st century.

          reply to this | link to this | view in chronology ]

    • icon
      Toom1275 (profile), 7 Apr 2021 @ 8:03pm

      Re:

      Yeah, shame on Mike and all the real experts with their first- hand deep knowledge on the subject for not bowing down to Tom T and his dunning-kruger delusions of adequacy.

      reply to this | link to this | view in chronology ]

      • This comment has been flagged by the community. Click here to show it
        identicon
        Tom T, 8 Apr 2021 @ 7:31am

        Re: Re:

        Anytime I hear dunning-kruger I know I'm talking to a bottom feeder. I do think its funny that people a theory that won an Ig Nobel prize, which is the scientific equivalent of a razzy award is somehow great science. I admit its funny and often time hilarious given the people who cite it are usually classic examples of it.

        I've only been here for a day and its clear that this entire webpage is an example of nuthugging and a cult of personality. Mike is not a real expert on regulation. Not in the slightest. He has never worked in a profession that puts him under regulation. I doubt he has ever even had to work with a regulatory board. I've worked with dozens on all levels of government.

        That's why its clear to me that Mike is clueless when his fundamental argument is that because social media is not exactly like telecom it cant be regulated like telecom. If you have ever in your life worked in a regulated industry you know that is a profoundly ignorant argument.

        reply to this | link to this | view in chronology ]

        • icon
          Scary Devil Monastery (profile), 8 Apr 2021 @ 8:34am

          Re: Re: Re:

          "Anytime I hear dunning-kruger I know I'm talking to a bottom feeder."

          Well, I suppose if you wanted to prove to everyone that you're falling under that category that's as good a way to do it as any. Dunning-kruger may not be good science but it's certainly fit for the everyday use of describing someone who has a cognitive inability to realize their own inadequacy.

          "I've only been here for a day and its clear that this entire webpage is an example of nuthugging and a cult of personality."

          Says the man who spent what, a hundred posts trying to push false equivalences, bad faith arguments, moved goalposts and a bundle of other cheap rhetoric to peddle the view that a bar owner shouldn't be free to evict unruly patrons. Or the online equivalent thereof.

          "I've worked with dozens on all levels of government. "

          Ah, yes...and an expert on IT, legislation, electronics, and no doubt, if the debate hinged upon it, particle physics. So lets add Arguing From Assumed Authority to the bad rhetoric.

          "If you have ever in your life worked in a regulated industry you know that is a profoundly ignorant argument."

          I think it's safe to say that most of the people here have, in fact, worked in regulated industries, many of which have far higher restrictions and standards than telecommunications. You are literally standing in a crowd of pharmacologists peddling snake oil.

          Better perhaps to go try that spiel on reddit where everyone isn't someone who has familiarity with the subject.

          reply to this | link to this | view in chronology ]


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