Who should be directly liable for online infringement – the entity that serves it up or a user who embeds a link to it? For almost two decades, most U.S. courts have held that the former is responsible, applying a rule called the server test. Under the server test, whomever controls the server that hosts a copyrighted work—and therefore determines who has access to what and how—can be directly liable if that content turns out to be infringing. Anyone else who merely links to it can be secondarily liable in some circumstances (for example, if that third party promotes the infringement), but isn’t on the hook under most circumstances.
The test just makes sense. In the analog world, a person is free to tell others where they may view a third party’s display of a copyrighted work, without being directly liable for infringement if that display turns out to be unlawful. The server test is the straightforward application of the same principle in the online context. A user that links to a picture, video, or article isn’t in charge of transmitting that content to the world, nor are they in a good position to know whether that content violates copyright. In fact, the user doesn’t even control what’s located on the other end of the link—the person that controls the server can change what’s on it at any time, such as swapping in different images, re-editing a video or rewriting an article.
But a news publisher, Emmerich Newspapers, wants the Fifth Circuit to reject the server test, arguing that the entity that embeds links to the content is responsible for “displaying” it and, therefore, can be directly liable if the content turns out to be infringing. If they are right, the common act of embedding is a legally fraught activity and a trap for the unwary.
The Court should decline, or risk destabilizing fundamental, and useful, online activities. As we explain in an amicus brief filed with several public interest and trade organizations, linking and embedding are not unusual, nefarious, or misleading practices. Rather, the ability to embed external content and code is a crucial design feature of internet architecture, responsible for many of the internet’s most useful functions. Millions of websites—including EFF’s—embed external content or code for everything from selecting fonts and streaming music to providing services like customer support and legal compliance. The server test provides legal certainty for internet users by assigning primary responsibility to the person with the best ability to prevent infringement. Emmerich’s approach, by contrast, invites legal chaos.
Emmerich also claims that altering a URL violates the Digital Millennium Copyright Act’s prohibition on changing or deleting copyright management information. If they are correct, using a link shortener could put users at risks of statutory penalties—an outcome Congress surely did not intend.
Both of these theories would make common internet activities legally risky and undermine copyright’s Constitutional purpose: to promote the creation of and access to knowledge. The district court recognized as much and we hope the appeals court agrees.
Trump and his supporters clearly believe migrants have no constitutional rights. But that’s simply not true. They have the same rights as citizens for one truly obvious reason: a government could choose to declare certain people non-citizens in order to strip them of their rights. That would be highly problematic in a nation that’s almost entirely the result of immigration, which is why courts have routinely held that non-citizens have the same rights as citizens while on US soil.
That’s still the case, for the most part. The Fifth Circuit — fulfilling its role as the preferred US Supreme Court understudy — has chosen to ignore literally hundreds of rulings in favor of due process rights for immigrants to decide those no longer exist in the states most migrants detained by the government get sent to before being removed from the country.
Last November, the Trump administration’s efforts to eliminate due process rights had been rejected by more than 100 judges in more than 200 cases. A few months later — and with a full-press surge happening in Minneapolis, Minnesota — the number of rejections has spiked:
A POLITICO review of thousands of ICE detention cases found that at least 360 judges rejected the expanded detention strategy — in more than 3,000 cases — while just 27 backed it in about 130 cases.
While most of the mass deportation action is currently happening far north of the Fifth Circuit (which covers Louisiana, Mississippi, and Texas), arrested immigrants are often sent almost immediately to detention facilities closer to the southern US border. Texas is, by far, the most popular destination for ICE detainee flights.
The Fifth Circuit waited around until late Friday night to release this decision [PDF], presumably in hopes of seeing the backlash subside a bit before the judges were due back at the office. Steve Vladeck covers all the angles in his post on this abhorrent ruling, starting with how this is an insane conclusion to reach given that 3,000 cases around the country have upheld the same rights the Fifth Circuit has chosen to deny to any migrant with the misfortune of finding themselves in its jurisdiction.
Well, late Friday night, in a ruling handed down just two days after oral argument, a divided panel of the U.S. Court of Appeals for the Fifth Circuit adopted the extreme minority view—holding that, yes, the government can indefinitely detain without bond millions of non-citizens who have been here for generations; who have never committed a crime; and who pose neither a risk of flight nor any threat to public safety. The Fifth Circuit’s opinion was written by Judge Edith Jones and joined in full by Judge Kyle Duncan—two of the most reactionary, right-wing federal appellate judges in the country…
The obvious upshot of this decision is that ICE et al will be rushing detainees to Texas ASAFP to take advantage of this ruling.
As Aaron Reichlin-Melnick from the American Immigration Council noted last night, the Fifth Circuit’s decision will “fuel ICE’s push to transfer people to Texas immediately,” and it will put “even more pressure on plaintiffs and district courts outside the 5th Circuit. Unless the habeas is filed before a person is transferred to the 5th Circuit, a person may remain locked in appalling conditions, never even allowed to ask for bond.” All of that can be traced to another procedural technicality—the principle that a district court gains jurisdiction over a habeas petition if, but only if, it is filed while the petitioner is physically in that court’s jurisdiction. In other words, to avoid being subject to the Fifth Circuit’s decision (while it remains on the books), detainees arrested elsewhere would have to have someone file on their behalf before they’re physically transferred into the Fifth Circuit.
There’s still a chance that people arrested in, say, Minneapolis, Minnesota might be able to avoid the Fifth Circuit’s refusal to recognize their due process rights. But the denial of due process rights begins immediately in most cases, with ICE officers refusing to allow detainees to contact family members, much less seek legal representation. If ICE can get them on a plane headed south before anything is filed in local courts, the Fifth Circuit’s ruling will override whatever rights migrants might have still had access to in the states they were removed from.
An appeal of this decision is already in process. And while it’s concerning that this particular iteration of the Supreme Court will be handling it, it’s not a foregone conclusion that it will convert the Fifth’s ruling into nationwide precedent. Even at its worst, the Supreme Court has rejected a handful of Fifth Circuit rulings that cross the line into an open embrace of violent fascism. On the other hand, this version of the Supreme Court is far more prone to deliver wordless rubber stamps of appellate decisions it likes, so some caution is warranted.
This decision requires the most MAGA-coded judges in the Fifth to buy everything the Trump administration is selling. And what it’s selling is a brand new interpretation of the phrase “seeking admission.” Rather than limiting it to people crossing the border illegally, it applies this definition to any migrant who doesn’t have the proper paperwork, even if they arrived in this country decades ago.
The dissent, written by Judge Dana Douglas, makes it clear that this administration will do anything and everything that serves its racist desire to eject non-whites from the United States.
The Congress that passed IIRIRA (Illegal Immigration Reform and Immigrant Responsibility Act [1996]) would be surprised to learn it had also required the detention without bond of two million people. For almost thirty years there was no sign anyone thought it had done so, and nothing in the congressional record or the history of the statute’s enforcement suggests that it did. Nonetheless, the government today asserts the authority and mandate to detain millions of noncitizens in the interior, some of them present here for decades, on the same terms as if they were apprehended at the border.
Do you want to be this shitty, Judge Douglas asks the judges who pretended this sort of thing is OK as long as it’s Trump doing it.
The majority stakes the largest detention initiative in American history on the possibility that “seeking admission” is like being an “applicant for admission,” in a statute that has never been applied in this way, based on little more than an apparent conviction that Congress must have wanted these noncitizens detained—some of them the spouses, mothers, fathers, and grandparents of American citizens. Straining at a gnat, the majority swallows a camel. I dissent.
Hopefully this ruling will be reset by the Supreme Court or an en banc rehearing. But for now, the law of the land in three states that are willing to house ICE detainees says due process rights are only available in the 47 states the Fifth Circuit doesn’t control.
In September 2023, Judge Matthew Kacsmaryk decided it was constitutional for a Texas university (West Texas A&M) to shut down a “PG-13” drag show. This was a decision he arrived at despite this being said (on the public record!) by the university official instituting the drag show ban:
In the statement to the WTAMU community yesterday, [WATMU President Walter] Wendler said the university “will not host” the March 31 event because, in his view, drag shows “denigrate and demean women” and that, in his view, “being created in God’s image is the basis of Natural Law.” Wendler said his beliefs about Christianity, and other religions including Buddhism and Judaism, as well as his views on feminism, blackface, quinceañeras, and Newton’s Third Law of Motion all shaped his decision to cancel the event — “even if the law of the land appears to require” WTAMU to host it.
(Un)holy shit. Wow. That is… a lot of stuff.
First, there’s the university president’s insistence that “natural laws” apparently handed down by a “God” are what’s actually in play here, rather than the actual laws handed down by the government he now works for.
And we can all assume Walter Wendler is massively wrong when it comes to views on feminism, blackface, the massively profitable quinceañera industry (which is rivaled only by the bar mitzvah industry here in the United States), as well as religions he doesn’t actually adhere to. But I’m extremely curious about his citation of Newton’s Third Law in support of his bigoted (and admittedly unlawful!) banning of drag shows at his university.
The WT community should live by the Golden Rule. As a Christian, I personally learned this in the book of Matthew, “So in everything, do to others what you would have them do to you, for this sums up the Law and the Prophets.” Buddhism expresses it this way: “Hurt not others with that which pains yourself.” Judaism states, “What you yourself hate, do to no man.” The law of reciprocity is at work in every known religion and society on the planet. Colloquially speaking, it is a manifestation of Newton’s Third Law of Motion, “For every action, there is an equal and opposite reaction.”
Oh. An “eye for an eye” or whatever — the sort of thing Jesus declared to be ultimately useless but still remains the sort of vindictive umbrage wielded by people who say things like “I believe every human being is created in the image of God” before declaring which of these images of God are allowed to access their constitutional rights.
Despite the self-owns performed by Walter Wendler, the district court allowed the ban on drag shows to continue, (irrationally) reasoning that drag shows simply weren’t politically expressive enough to count as free speech:
Because men dressed in attire stereotypically associated with women is not “overtly political” in a category of performative conduct that runs the gamut of transvestism — e.g., onnagata in kabuki, Sigma Chi fraternity brothers in a distasteful “ugly woman” contest, jogappa priests worshiping Yellamma, and Matt Damon depicting a Yale University thespian in “The Good Shepherd” — it is not clearly established that all drag shows are inherently expressive as defined in Johnson, 491 U.S. at 406.
Who would arrive at such an insane conclusion? Well, it would be a judge who’s more Walter Wendler than a bulwark against unconstitutional abuses of power. It would be a judge who’s every bit as bigoted as the man they chose to support by ignoring decades of free speech precedent.
Before joining the bench, the judge worked as an anti-abortion activist and served at the hard-right First Liberty Institute, which opposes abortion, In vitro fertilization, contraception, LGBTQ+ equality, and other supposed products of the “sexual revolution.”
That explains why this judge ruled the way he did.
The good news is that even the Fifth Circuit isn’t willing to sign off on this judge’s prejudices. As FIRE (which handled the lawsuit against WTMU) points out in its press release announcing this win, it’s expression that matters when it comes to First Amendment issues, not whether or not the disputed expression is “political.”
The majorityopinion from Judge Leslie H. Southwick found a substantial likelihood that Spectrum WT’s First Amendment claims would prevail on the merits.
“Because theatrical performances plainly involve expressive conduct within the protection of the First Amendment, and because we find the plaintiffs’ drag show is protected expression,” the Fifth Circuit held Wendler’s censorship failed to pass constitutional muster.
This is something the university president even admitted was likely the case before instituting a ban even he believed was probably illegal. The Fifth Circuit doesn’t have any sympathy for the college’s case, especially as it has been represented by school president Walter Whateverthefuck (née Wendler).
The decision [PDF] runs only 39 pages, recounting the stuff that generated this appeal before (even more swiftly) rejecting the lower court’s reasoning and blocking Wendler from forcing his university to continue engaging in an unconstitutional drag show ban.
First, it shuts down the lower court’s rationale that something must be explicitly “political” or “so artistic no one would dare doubt its artistic merit” (I’m paraphrasing the last part) to be protected by the First Amendment.
We find no support in this court’s caselaw for the proposition that nonspeech conduct must be a work of fine art to receive First Amendment protection if it does not communicate a particularized message. Any such suggestion would be at odds with the guidance provided by the Supreme Court.
In addition, it was clear this particular drag show was communicating something beyond the vagaries of whatever the average drag show communicates. This one — in particular — had a deeper meaning:
This does not mean, though, that drag shows as described here fail to communicate such a message of support [for LGBTQ+ people]. Some do. The question is whether the plaintiffs’ intended drag show would have communicated a message. We consider context dispositive. The viewers of the drag show would have been ticketed audience members attending a performance sponsored by LGBT+ student organizations and designed to raise funds for an LGBT+ suicide prevention charity. Against this backdrop, the message sent by parading on a theater stage in the attire of the opposite sex would have been unmistakable.
The end result is an injunction blocking this bigoted school president’s unilateral ban of creative expression he personally doesn’t like. Without a doubt, this decision will be appealed because the Supreme Court is at least 5/4th-Trump hand puppets at this point in time. And, of course, Trump-appointee James Chien-Yue Ho is there to lay the groundwork for the inevitable appeal with his extremely stupid dissenting opinion that leads off with this:
Spectrum WT claims that it has a First Amendment right to put on a drag show in a public facility at West Texas A&M University. But university officials have determined that drag shows are sexist, for the same reason that blackface performances are racist. And Supreme Court precedent demands that we respect university officials when it comes to regulating student activities to ensure an inclusive educational environment for all. See Christian Legal Society v. Martinez, 561 U.S. 661 (2010).
I disagree with the Supreme Court’s decision in CLS. But I’m bound to follow it. And I will not apply a different legal standard in this case, just because drag shows enjoy greater favor among cultural elites than the religious activities at issue in CLS.
Insane. First, it was only a single university official who claimed drag shows were like blackface performances, and he said this in support of his blocking of the performance, even as he openly admitted his actions were most likely unconstitutional.
Drawing a line from drag shows to blackface to religious activities is intellectual dishonesty at its finest. No one in their right mind thinks drag shows are as offensive as blackface performances. And no one but this particular Judge Ho would seek to connect three disparate dots with a single sentence that also adds the phrase “cultural elites” to a document that should never contain a tacit admission of political alignment. Only the far right (which is all of the GOP at this point) uses the phrase “cultural elites” to characterize enemies it can’t better describe as anything but “woke.”
Ho’s use of this phrase in this context suggests the decline of blackface performance popularity is somehow the fault of cultural elites, who would rather see drag shows than Bible studies hosted at US universities. It also aligns with the current administration, whose main complaint with history museums and Park Service National Monuments is that they continue to highlight how awful slavery was, while the current administration would rather everyone just pay more attention to the inherent greatness of white people.
But the end result is what stands for the moment, Judge C. Ho’s subservient dissent notwithstanding. Banning artistic expression just because you personally dislike it should never be an option for public entities. This university president is now little more than a sunk cost the rest of the school should have the willingness to walk away from before he does any more damage to the school’s reputation, much less its bottom line.
Bluesky made a major statement last week when it announced that it would be geoblocking Mississippi IP addresses from accessing its site—making it the first major social media platform to completely block access from a US state.
Unlike tech giants with vast resources, we’re a small team focused on building decentralized social technology that puts users in control. Age verification systems require substantial infrastructure and developer time investments, complex privacy protections, and ongoing compliance monitoring — costs that can easily overwhelm smaller providers. This dynamic entrenches existing big tech platforms while stifling the innovation and competition that benefits users.
We believe effective child safety policies should be carefully tailored to address real harms, without creating huge obstacles for smaller providers and resulting in negative consequences for free expression. That’s why until legal challenges to this law are resolved,we’ve made the difficult decision to block access from Mississippi IP addresses. We know this is disappointing for our users in Mississippi, but we believe this is a necessary measure while the courts review the legal arguments.
Some companies have been blocked by foreign countries, or blocked access in other countries. But geoblocking specific states had generally been limited to adult content sites in the past. This unprecedented response highlights just how unworkable Mississippi’s law really is.
Here at Techdirt, we’ve been warning about the dangerous negative consequences of age verification mandates for years. But even then there are variations in the pure ridiculousness of some of these laws. Some can be dealt with. Some are effectively impossible. Enter Mississippi’s HB 1126.
The bill is ridiculous in many, many ways. It first requires “digital service providers” (defined fairly broadly) to engage in age verification of every new user (the bill is written so badly that it’s not clear if it applies to accounts from before the bill goes into effect). If the user is deemed to be under the age of 18, the site is required to get “parental consent” before making the service available.
The parental consent requirements alone show how divorced from reality this law is. Picture this: your 17-year-old wants to join a social media platform, so now you need to:
A digital service provider shall not permit an account holder who is a known minor to be an account holder unless the known minor has the express consent from a parent or guardian. Acceptable methods of obtaining express consent of a parent or guardian include any of the following:
(a) Providing a form for the minor’s parent or guardian to sign and return to the digital service provider by common carrier, facsimile, or electronic scan;
(b) Providing a toll-free telephone number for the known minor’s parent or guardian to call to consent;
(c) Coordinating a call with a known minor’s parent or guardian over video conferencing technology;
(d) Collecting information related to the government-issued identification of the known minor’s parent or guardian and deleting that information after confirming the identity of the known minor’s parent or guardian;
(e) Allowing the known minor’s parent or guardian to provide consent by responding to an email and taking additional steps to verify the identity of the known minor’s parent or guardian; or
(f) Any other commercially reasonable method of obtaining consent in light of available technology.
So if your teenager wants to use Bluesky (or any other digital service), you might need to mail in a signed form, hop on a video call with the company, or hand over your government ID to verify you’re really their parent—all so they can post about their favorite bands or follow local news. What if the kid is estranged from their parents? What if their parents disagree over whether or not their child can use the site? How do you verify that it’s actually a legal guardian? The law is effectively silent on all that.
There’s a lot more that’s problematic in the law as well. Even if the parent gives permission, a site is still required to block kids from accessing anything deemed harmful… but also shouldn’t stop the kid from searching for harmful information. It basically demands the impossible.
And if a kid does access ambiguously “harmful” information any parent can sue and sites can face penalties of up to $10k per violation and the potential of criminal penalties as well.
NetChoice, the trade group that has been kept busy the last few years suing (and mostly winning) to stop every unconstitutional internet law, sued over this law, and, after some procedural nonsense related to last year’s Supreme Court ruling in Moody, got a temporary restraining order blocking the law from going into effect (at least against NetChoice’s members). Judge Halil Suleyman Ozerden recognized how obviously unconstitutional the law was, noting that the law was incredibly broad, was not even remotely narrowly tailored to the state’s compelling interest. Basically this law is a mess and the state has no reasonable defense:
In short, NetChoice has carried its burden of demonstrating that there are a number of supervisory technologies available for parents to monitor their children that the State could publicize… Yet, the Act requires all users (both adults and minors) to verify their ages before creating an account to access a broad range of protected speech on a broad range of covered websites. This burdens the First Amendment rights of adults using the websites of Netchoice’s covered members, which makes it seriously overinclusive. But NetChoice has also presented persuasive evidence that “[u]ncertainty about how broadly the Act extends—and how Defendant will interpret the Act—may spur members to engage in over-inclusive moderation that would block valuable content from all users,” and that not all covered websites have the ability to “age-gate,” meaning that “they are unable to separate the content available on adults’ accounts from content available on minors’ accounts.” …. This likewise renders H.B. 1126 overinclusive.
The Act also requires all minors under the age of eighteen, regardless of age and level of maturity, to secure parental consent to engage in protected speech activities on a broad range of covered websites, which represents a one-size-fits-all approach to all children from birth to age 17 years and 364-days old. H.B. 1126 is thus overinclusive as to Netchoice’s covered members to the extent it is intended as an aid to parental authority beyond the resources for monitoring children’s internet activity NetChoice has already identified, because not all children forbidden by the Act to create accounts on their own have parents who will care whether they create such accounts. See Brown, 564 U.S. at 789, 804 (holding the state act purporting to aid parental authority by prohibiting the sale or rental of “violent video games” to minors “vastly overinclusive” because “[n]ot all of the children who are forbidden to purchase violent video games on their own have parents who care whether they purchase violent video games” (emphasis in original)).
This follows on what happens in basically every district court over laws like this. But, of course, Mississippi is in the Fifth Circuit, where good judicial systems go to die. What happened next perfectly encapsulates why the Fifth Circuit has become synonymous with lawless judicial activism. A month later the Fifth Circuit—with no explanation—said the law could go into effect, putting a “stay” on the TRO. No reasoning. No analysis. Just a naked power grab that ignores clear Supreme Court precedent.
NetChoice went to the Supreme Court’s shadow docket, where the Supreme Court refused to vacate the Fifth Circuit’s ruling, even as Justice Kavanaugh explained that it was pretty obvious the law was unconstitutional: We had mentioned this very odd result when it happened. Here’s Kavanaugh:
To be clear, NetChoice has, in my view, demonstrated that it is likely to succeed on the merits—namely, that enforcement of the Mississippi law would likely violate its members’ First Amendment rights under this Court’s precedents. See Moody v. NetChoice, LLC, 603 U. S. 707 (2024); Brown v. Entertainment Merchants Assn., 564 U. S. 786 (2011); cf. Free Speech Coalition, Inc. v. Paxton, 606 U. S. ___ (2025). Given those precedents, it is no surprise that the District Court in this case enjoined enforcement of the Mississippi law and that seven other Federal District Courts have likewise enjoined enforcement of similar state laws.
Okay? So why are you letting the law go into effect?
… because NetChoice has not sufficiently demonstrated that the balance of harms and equities favors it at this time, I concur in the Court’s denial of the application for interim relief.
What?!? This is judicial gaslighting at its finest. The Supreme Court has said, repeatedly, that denial of your First Amendment rights is very much a harm. But apparently, they all forgot that.
And now social media users begin to suffer. Welcome to the two-tiered internet. As Bluesky explained, there’s basically no other reasonable way to comply with this law short of blocking all users from the state:
Mississippi’s approach would fundamentally change how users access Bluesky. The Supreme Court’s recentdecisionleaves us facing a hard reality: comply with Mississippi’s age assurancelaw—and make every Mississippi Bluesky user hand over sensitive personal information and undergo age checks to access the site—or risk massive fines. The law would also require us to identify and track which users are children, unlike our approach in other regions. We think this law creates challenges that go beyond its child safety goals, and creates significant barriers that limit free speech and disproportionately harm smaller platforms and emerging technologies.
The harm is immediate and concrete. Mississippi now has a fundamentally different internet than the rest of the country—one where geography determines your access to information and communities. This is exactly the kind of balkanization that the internet was designed to prevent. The Mississippi Free Press, a fantastic independent journalism site covering news in Mississippi, has said that Bluesky has been a huge part of their distribution:
For those of us at the Mississippi Free Press, this is a significant blow. We left Twitter earlier this year for a lot of reasons, and have since made Bluesky our main social media platform (it’s also where we have the most followers).
[….]
We don’t know yet what this will mean for our ability to continue to post on Bluesky. Frankly, I’m more concerned about how this will prevent our readers who follow us on Bluesky from continuing to do so.
Think about what this means: A local news organization in Mississippi can no longer easily reach its readers through a major social media platform because of their state government’s actions. Independent journalism—already struggling—now faces additional barriers created by the very government it’s trying to hold accountable.
MFP’s news editor, Ashton Pittman has made it clear where the blame lies for this: with Mississippi’s legislators who (on a bipartisan basis) passed this terrible law:
To be clear, I'm not blaming BlueSky for this situation.I understand perfectly well WHY BlueSky is blocking access to Mississippi IPs; the state government gave them no other viable choice.We are looking into our options, of course (including VPNs).
And, yes, as with every other age-gating law that shows up anywhere in the world, all it’s really doing is promoting VPN subscriptions. The tech-savvy will route around the censorship. Everyone else—including the most vulnerable populations this law claims to protect—gets cut off.
Separately, I’ve seen some commentary regarding how this somehow goes against Bluesky’s decentralization promises, but nothing can be further from the truth. Understanding why requires grasping how the AT Protocol actually works. Bluesky is one provider on the wider Atmosphere (the rapidly growing set of services using the underlying ATprotocol). Each of those services can make their own decision of how to comply with the law here. Bluesky made this point in its explanation:
This decision applies only to the Bluesky app, which is one service built on the AT Protocol. Other apps and services may choose to respond differently. We believe this flexibility is one of the strengths of decentralized systems—different providers can make decisions that align with their values and capabilities, especially during periods of regulatory uncertainty. We remain committed to building a protocol that enables openness and choice.
This is actually decentralization working as intended. If this were Twitter or Facebook, users would have no alternatives when states make dangerous policy choices. With AT Protocol, other providers could theoretically serve Mississippi users differently (though they’d face the same impossible legal risks). More importantly, users retain their identity and social connections across different providers within the network.
The key thing to remember is that nothing in this law actually makes kids safer. Like all age verification laws, it just creates a ridiculous scenario that infringes on people’s rights, closes off portions of the open internet, and serves no purpose other than enabling legislators to pat themselves on the back and pretend they’ve done something useful.
One hopes that the legislators in Mississippi will reconsider this bad law. Or that the courts (which continue to review this law) issue a new injunction that the Fifth Circuit and the Supreme Court don’t reject.
Until then, it really sucks that the state of Mississippi has effectively decided that smaller, upstart social media sites have three awful choices: comply with the law and block all access, disobey the law and risk ruinous liability, or comply with the law by collecting a ton of extremely sensitive data and setting up an impossible and unworkable system of “parental consent” that will create a huge mess for both kids and parents. The option Bluesky took seems like the only sensible one in this scenario.
There was a colloquy at oral argument earlier this year in the Free Speech Coalition v. Paxton case between Justice Kavanaugh and FSC that raised the unsettling prospect that at least several of the Supreme Court justices did not understand what preliminary injunctions are for. In that case, the bad Texas law had already been enjoined by the district court (correctly) applying strict scrutiny, but then the Fifth Circuit had dumped the injunction by using a rational basis standard instead. As Justice Sotomayor kept reminding, the only issue before the Supreme Court then was whether the Fifth Circuit used the wrong standard to decide whether the injunction should be kept in force.
JUSTICE KAVANAUGH: — to restore a preliminary injunction by this Court, we would have to find that you have a likelihood of success on how whatever level of scrutiny is applied, correct? [p.52]
No, the lawyer for FSC reminded justices. All they had to decide was that district court had not abused its discretion when it was interpreting the nascent record only just starting to get built while using the correct strict scrutiny standard. Future stages of the litigation would provide the opportunity for a finer-tuned result on the merits. But preliminary injunctions are for the district court’s best guess at that early stage that an injury is likely to occur if not stopped because, at this stage, we care more about not letting a potentially illegal harm accrue than being 100% correct that it’s illegal when it is too soon to know. And the only question on appeal after one has been issued—even at the Supreme Court—is whether that best guess did something conspicuously wrong, like applying the wrong legal standard or seriously misunderstanding the facts as the early record showed them.
Ultimately SCOTUS (somehow) concluded that the legal standard both lower courts used was wrong, deciding that the “correct” standard was the flimsier intermediate scrutiny, even though this pronouncement ignored precedent to make a new (and constitutionally dubious) rule out of thin air. And it then applied it in a way as to greenlight the law itself, even though such an analysis effectively jumped to the merits prematurely given that the district court itself had not even finished making its own final determination under any standard. The SCOTUS decision essentially produced a “game over” litigation result, abrogating a freedom everyone thought they had up to that point even while the litigation defending that freedom was still very much game on.
Meanwhile, in addition to upending settled First Amendment law, particularly with regard to age-gating, nothing that SCOTUS has done since then has done anything to dispel the concern that it understands the importance of injunctions to protect people from unlawful if not also unconstitutional incursions on their rights. Its habit of dissolving them via administrative stays on the shadow docket has had the effect of making everyone vulnerable to whatever abuse of power the government has been able to exercise and obviated the previous power of the courts to ensure that no unconstitutional injury could be incurred unless and until it is finally shown, via a developed record of facts and law, that none will result from the challenged action.
Furthermore, it did so once again in a law involving age verification and the First Amendment. The “good” news is that, at least this time, Justice Kavanaugh included a concurrence suggesting that Mississippi’s law would ultimately be found unconstitutional on the merits.
To be clear, NetChoice has, in my view, demonstrated that it is likely to succeed on the merits—namely, that enforcement of the Mississippi law would likely violate its members’ First Amendment rights under this Court’s precedents. See Moody v. NetChoice, LLC, 603 U. S. 707 (2024); Brown v. Entertainment Merchants Assn., 564 U. S. 786 (2011); cf. Free Speech Coalition, Inc. v. Paxton, 606 U. S. ___ (2025). Given those precedents, it is no surprise that the District Court in this case enjoined enforcement of the Mississippi law and that seven other Federal District Courts have likewise enjoined enforcement of similar state laws. See No. 1:24–cv–170 (SD Miss., June 18, 2025); NetChoice, LLC v. Yost, 716 F. Supp. 3d 539 (SD Ohio 2024); Computer & Communications Industry Assn. v. Paxton, 747 F. Supp. 3d 1011 (WD Tex. 2024); NetChoice, LLC v. Reyes, 748 F. Supp. 3d 1105 (Utah 2024); NetChoice, LLC v. Bonta, 770 F. Supp. 3d 1164 (ND Cal. 2025); NetChoice, LLC v. Griffin, No. 5:23–cv–5105 (WD Ark., Mar. 31, 2025); Computer & Communications Industry Assn. v. Uthmeier, ___ F. Supp. 3d ___, No. 4:24–cv–438 (ND Fla., June 3, 2025); NetChoice v. Carr, ___ F. Supp. 3d ___, No. 1:25–cv–2422 (ND Ga., June 26, 2025). In short, under this Court’s case law as it currently stands, the Mississippi law is likely unconstitutional.
And yet, by denying this emergency shadow docket petition to lift the stay of the well-earned injunction the district court had granted of this very likely unconstitutional law, SCOTUS, including Justice Kavanaugh, has allowed it to go into its unconstitutional effect.
This indifference to constitutional injury is itself unprecedented. SCOTUS has long since recognized it to be intolerable. In Elrod v. Burns it explicitly declared it as such in the First Amendment context:
The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.
But here we are, with that irreparable injury now being welcomed by a majority of SCOTUS justices, for whom the ancient judicial tool of preliminary injunctive relief is apparently no longer a thing, and because it is the result of yet another unsigned shadow docket maneuver we’ll still never know why.
Just because a constitutional violation is easy to ignore doesn’t make it any less of a constitutional violation. And yet, that was the first defense of Louisiana’s Ten Commandments mandate offered by the governor of the state, Jeff Landry.
When asked what he would say to parents who are upset about the Ten Commandments being displayed in their child’s classroom, the governor replied: “If those posters are in school and they (parents) find them so vulgar, just tell the child not to look at it.”
That’s not an appropriate response to complaints raised about a clearly unconstitutional action by the government. It’s not a matter of “vulgarity.” It’s that no one should be forced to ignore violations of their rights just so they can attend public school.
Of course, this wasn’t the defense offered to the judge handling the inevitable lawsuit in federal court. But even the state’s better defenses were incapable of salvaging the sort of church-plus-state government action that just as inevitably ends in courtroom losses for overreaching lawmakers.
The federal court wasn’t amused by the government’s attempt to avoid judgment by getting cutesy with proposed classroom posters like this one:
Before declaring the Ten Commandments mandate “inconsistent with the history of the First Amendment and public education,” the court had this to say to Louisiana’s legal reps:
Plaintiffs do not seriously dispute that they mount a facial challenge, so, under Croft, they must prove the Act is “unconstitutional in every application” and that there is “no set of circumstances under which” the Ten Commandments could be posted in compliance with the Act that would be constitutional. Plaintiffs lament that Croft is the only Establishment Clause case in the Fifth Circuit to reach this result, but Croft remains binding precedent that this Court must follow.
AG Defendants treat this as a kill shot. They maintain that they can comply with the Establishment Clause by surrounding the Ten Commandments with nonreligious matter no matter how outlandish that material might be. That is to say, AG Defendants believe they can constantly change their iterations, leaving potential challengers like Menelaus trying to seize and hold the ever shape-shifting Proteus until Proteus eventually tires and divulges the hero’s way off the island. See HOMER, THE ODYSSEY 135.391–142.644 (Robert Fagles trans., Penguin Books, 1997). Or, phrased another way, AG Defendants would have aggrieved parents and children play an endless game of whack-a-mole, constantly having to bring new lawsuits to invalidate any conceivable poster that happens to have the Decalogue on it.
The state appealed this decision immediately. And by “immediately,” I mean pretty much before the bits on the PDF even had a chance to dry. Both the decision and the appeal hit the docket on November 12 of last year.
Nearly seven months later, we finally have a response. The Fifth Circuit Appeals Court upholds [PDF] the lower court’s decision while making some of its own very solid points about the obvious unconstitutionality of this mandate.
The state tried to argue that the plaintiffs had alleged no legal “injury” from the mandated posting of the Ten Commandments in public schools and universities. It also claimed the lower court failed to develop allegations enough to warrant its decision. The Fifth Circuit says both arguments are wrong, especially since the only supporting arguments have been cherry-picked from a handful of non-binding decisions from other courts (including the Supreme Court).
The plaintiffs have standing to sue. And the law is clearly unconstitutional. The precedent that actually matters is nearly 50 years old, something the state’s legal counsel might have pointed out before Governor Jeff Landry signed this into law.
Perhaps no better case illustrates the nature of H.B. 71’s constitutional problem than Stone v. Graham, 449 U.S. 39 (1980) (per curiam). In Stone, the Supreme Court struck down a Kentucky statute requiring that the Ten Commandments be displayed on the wall of every public classroom in the state because it had no “secular legislative purpose.”
[…]
According to Kentucky, the statute’s secular legislative purpose was reflected on the displays in a small notation below the Commandments: “The secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States.” The Court held that the state’s avowed purpose was a sham, and the statute was therefore unconstitutional. It explained, “[t]he pre-eminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature. The Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact.”
Nearly fifty years later, Louisiana is trying the same bullshit when faced with a legal challenge.
The statute does not require that the Ten Commandments be integrated into a curriculum of study. On the contrary, under the statute’s minimum requirements, the posters must be indiscriminately displayed in every public school classroom in Louisiana regardless of class subject-matter. See La. R.S. § 17:2124(B)(1). Louisiana insists, however, that unlike Kentucky, its Legislature has a valid “secular historical and educational purpose” for displaying the Ten Commandments in classrooms, which is reflected in the statute.
[…]
Louisiana’s purported legislative purpose states: It is the Legislature’s intent to apply the decision set forth by the Supreme Court of the United States in Van Orden v. Perry, 545 U.S. 677 (2005), to continue the rich tradition [of including the Ten Commandments in the education of our children] and ensure that the students in our public schools may understand and appreciate the foundational documents of our state and national government.
This is similarly a “sham,” says the Fifth Circuit:
It is also unclear how H.B. 71 ensures that students in Louisiana public schools “understand and appreciate the foundational documents of [its] state and national government” when it makes displaying those “foundational” documents optional, and does not require that they also be printed in a large, easily readable font. La. R.S. § 17:2124(A)(9). When the Ten Commandments must be posted prominently and legibly, while the other “contextual” materials need not be visible at all, the disparity lays bare the pretext.
The injunction stays in place and the lower court’s ruling is upheld. And state lawmakers will have to take their crayons back to the drawing board if they hope to shove their preferred god down children’s throats. Better yet, the next time some dumbass bill like this gets proposed, they could apply the wisdom of Governor Landry and just decide to look at something else instead.
That summation greatly oversimplifies things, but if all you’re going to read is a headline, it will have to do.
We’ll dig in deeper into the Fifth Circuit’s second attempt to handle content moderation vis-a-vis public libraries, but first, we’ll take a look back to what happened last year.
In middle of book ban bills hitting multiple state legislatures — several of which created new civil avenues for private citizens to demand book removals and/or sue public libraries/librarians directly for being offended by books they found on library shelves, the Fifth Circuit handled a challenge brought by the ACLU after a few local right wingers tried to get a bunch of books removed from a Llano County public library.
These were the books that were removed by the library, working from a list provided by allegedly aggrieved county resident Bonnie Wallace and seconded by state rep Matt Krause and his own list of “objectionable material,” which included several more titles referred to by Krause as “pornographic filth.”
Seven “butt and fart” books, with titles like I Broke My Butt! and Larry the Farting Leprechaun;
Four young adult books touching on sexuality and homosexuality, such as Gabi, a Girl in Pieces;
Being Jazz: My Life as a (Transgender) Teen and Freakboy, both centering on gender identity and dysphoria;
Caste and They Called Themselves the K.K.K., two books about the history of racism in the United States;
Well-known picture book, In the Night Kitchen by Maurice Sendak, which contains cartoon drawings of a naked child; and
It’s Perfectly Normal: Changing Bodies, Growing Up, Sex and Sexual Health.
Pretty much everyone acting to get these books removed worked for some branch of the local government, ranging from two county judges, to the state rep, to the library board the local government handpicked to replace the less-than-obsequious board it disbanded after it refused to let Bonnie Wallace run the library.
While some of the Fifth Circuit judges recognized that declaring library content curation “government speech” meant prematurely terminating legitimate First Amendment challenges, the court ultimately decided libraries should be allowed to handle their own content moderation. After all, to do otherwise would mean being forced to carry racist tomes and bigoted creative works. If that meant citizens could cleanse libraries of content they personally don’t like, it was just acceptable collateral damage for refusing to protect the First Amendment right to access content, even if others think you shouldn’t have access to it.
Roughly a month later, the Fifth Circuit said it would take another look at this case, having apparently realized it had enabled censorship while claiming to be protecting librarians’ rights to curate content of the libraries they oversee.
It shouldn’t have bothered. Its first decision was a mess, but at least it held back from actively blessing proxy censorship of protected First Amendment expression by authors and content creators. This review goes further, giving the government free rein to censor content it doesn’t like under the guise of “curation.”
The latest ruling [PDF], which sets precedent for the entire Fifth Circuit and its grouping of overwhelmingly right wing states, says there’s simply no way to solve this problem in a way that makes everyone — including fans of civil liberties — happy. So, if anyone is going to suffer, it’s going to be the citizens, rather than the government.
[P]laintiffs cannot invoke a right to receive information to challenge a library’s removal of books. Yes, Supreme Court precedent sometimes protects one’s right to receive someone else’s speech. But plaintiffs would transform that precedent into a brave new right to receive information from the government in the form of taxpayer-funded library books. The First Amendment acknowledges no such right.
That is a relief, because trying to apply it would be a nightmare. How would judges decide when removing a book is forbidden? No one in this case—not plaintiffs, nor the district court, nor the panel—can agree on a standard. May a library remove a book because it dislikes its ideas? Because it finds the book vulgar? Sexist? Inaccurate? Outdated? Poorly written? Heaven knows. The panel majority itself disagreed over whether half of the 17 books could be removed. For their part, plaintiffs took the baffling view that libraries cannot even remove books that espouse racism.
There’s no room for nuance here, apparently. Either librarians can remove anything they want to or they can’t remove anything. But this isn’t a win for librarians. Librarians tend to actually care about expanding knowledge and minds. Library boards — those run by local governments — are more interested in pushing their own viewpoints at the expense of library patrons. But library boards get the win here because… well, who could possibly want the government to be forced to pay for books that espouse racism?
Only racists really want that. But they can’t actually get that, so they do the next best thing. They disband library boards and re-stock them with sympathizers and then set about removing books that detail the United States’ long history of racism (along with some harmless books containing fart jokes).
Not a problem, says the Fifth Circuit, even if it’s obviously a problem. But what the Fifth Circuit can’t logically (or lawfully) argue away, it chooses to belittle. This is some truly shameful writing from a court that can’t even attempt to hide its disdain for the plaintiffs challenging the quasi-book ban urged on by a state rep that definitely wants to engage in censorship on behalf of a single complainant who wants to remove any content she personally doesn’t like.
Finally, we note with amusement (and some dismay) the unusually over-caffeinated arguments made in this case. Judging from the rhetoric in the briefs, one would think Llano County had planned to stage a book burning in front of the library. Plaintiffs and amici warn of “book bans,” “pyres of burned books,” “totalitarian regimes,” and the “Index librorum prohibitorum.” One amicus intones: “Where they burn books, they will ultimately burn people.”
Take a deep breath, everyone. No one is banning (or burning) books. If a disappointed patron can’t find a book in the library, he can order it online, buy it from a bookstore, or borrow it from a friend. All Llano County has done here is what libraries have been doing for two centuries: decide which books they want in their collections. That is what it means to be a library—to make judgments about which books are worth reading and which are not, which ideas belong on the shelves and which do not.
If you doubt that, next time you visit the library ask the librarian to direct you to the Holocaust Denial Section.
Well, why have a library at all then? Maybe taxpayers would be better off just buying or borrowing (from friends) anything they want to read? Why burden, say, Bonnie Wallace, with the extremely minor tax burden of paying for the occasional book of fart jokes or a treatise on racism in America? In fact, why not just shut down newspapers, radio stations, and news broadcasters? If people want to know what’s happening, surely they can just ask their neighbors or call up relatives living elsewhere in the nation? Who needs public records requests? Surely, anyone interested in the inner workings of their government can just politely ask government employees to answer their questions in person?
This is an extremely specious response to a serious concern, one that has only become more serious in recent years as hundreds of legislators and an entire political party has decided to get into the censorship business.
Only the dissent contains anything worth taking to heart. Written by Judge Stephen Higginson, it calls out the majority’s bullshit take on the First Amendment and the right to information it contains:
Public libraries have long kept the people well informed by giving them access to works expressing a broad range of information and ideas. But this case concerns the politically motivated removal of books from the Llano County public library system by government officials in order to deny public access to disfavored ideas. In an effort to ratify this official abridgment of free speech, the majority overturns decades of settled First Amendment law, disparaging its free speech protections as a “nightmare” to apply.
There it is: not only does the majority decide to give the government an on-ramp for censorship via libraries, it wraps up its refusal to honestly wrestle with this difficult issue by belittling the people who raised it. Everyone in the Fifth Circuit is worse off for it. And this abysmal take on free speech is only going to encourage more of what happened in this case. It gives would-be censors all the permission they need to start ridding public libraries of content they don’t like and the quasi-legal cover for their definitively anti-American actions.
This potential class-action lawsuit, brought by parolees represented by the Institute of Justice, alleged a Louisiana judge was making a mockery of due process by forcing defendants to use his preferred ankle monitoring contractor, which coincidentally had been formed by the judge’s former law partner and run by donors to his judicial election campaigns.
There’s an appearance of judicial impropriety here and you don’t even have to squint to see it. Christian Helmke and Leonard Levenson formed ETOH Monitoring in 2006. Here’s a little more on the judge and his connections to the founders of ETOH Monitoring, taken from the Fifth Circuit opinion [PDF]:
In 2016, Paul Bonin was elected as a judge on the OPCDC. During his campaign, Bonin accepted donations totaling $3,550 and a loan of $1,000 from Helmke and Levenson through their law firms. Levenson is Judge Bonin’s former law partner. Before serving on the district court, Judge Bonin had been a state appellate judge for eight years. Levenson and Helmke had donated $5,100 to his election campaigns for that position.
Maybe none of that would have mattered. But Judge Paul Bonin made sure it mattered. ETOH is one of three ankle monitoring options provided to defendants in Orleans Parish District Court. However, in Judge Bonin’s court, there was always only one option.
When ordering ankle monitoring, Judge Bonin regularly directed defendants to make arrangements with ETOH. He did not disclose the availability of other providers. After defendants obtained monitors, ETOH sent monthly reports to Judge Bonin about their payment status. Judge Bonin warned some defendants that nonpayment could result in their jailing. He conditioned some defendants’ release from their ankle monitors on their completing payments to ETOH. In one case, Judge Bonin conditioned a defendant’s release on completing payment to ETOH even though Judge Bonin considered waiving other costs the defendant was obligated to pay.
That certainly looks a bit corruption-y. Ankle monitoring isn’t cheap. ETOH charges defendants $10/day for the privilege of being monitored. And Bonin not only funneled defendants to a business run by his former law partner, but actually deprived them of their freedom until they threw some money in the direction of two of his campaign donors.
The lower court dismissed the lawsuit, saying nothing here added up to a due process violation. The Fifth Circuit — in this unpublished decision — says the same thing. Sure, it may look a little crooked, but it’s not enough to get the Constitution involved.
Our decision does not address the general legality or propriety of Judge Bonin’s conduct. We rule only on the question this case presents: whether ETOH had ties with Judge Bonin that created an unconstitutional risk of bias. Unexceptional campaign contributions and past business relations do not present an “extraordinary situation” in which due process is implicated. Individually and in their totality, the ties between ETOH and Judge Bonin do not rise to the level of a constitutional violation.
Further complicating the matter is the fact that Bonin did not seek re-election in 2020, so he’s no longer in the position to force defendants to patronize his preferred ankle monitoring service. Add that to judicial immunity, and the sad fact is that even if the Fifth Circuit had recognized this seemingly obvious constitutional violation, the lawsuit would have been dismissed for those reasons. And while that loss would still have been a loss, it might have been more meaningful than the shrug the plaintiffs received here that basically says it’s ok to generate a constant appearance of impropriety so long as those you’re favoring haven’t spent too much money keeping you in office.
So we’ve established by now that the second Trump administration is attempting to completely destroy regulatory authority, consumer protection, labor rights, and corporate oversight. Whether by precedent-ignoring court ruling, executive order, illegally firing commissioners, cronyism, or regulatory capture, the effort isn’t subtle, and is poised to usher forth a new golden age of corruption.
As I wrote in a recent Verge profile of Carr’s first 100 days, Carr will routinely proclaim that his agency has no power at all when it comes to protecting consumers or standing up to giants like AT&T, but all the power in the world when it comes time for petty authoritarian bullshit.
After the AT&T privacy ruling, both Verizon and T-Mobile unsurprisingly sued the FCC (Verizon in the 2nd Circuit and T-Mobile in the DC Circuit) to have their own privacy fines overturned. Trump FCC pick Nathan Simington has vowed to vote against any fine imposed by the FCC “until its legal powers are clear” (spoiler: Trumplings don’t want regulatory authority to ever be clear, ever again).
“Carr repeatedly opposed Biden-era efforts to regulate telecom providers and is aiming to eliminate many of the FCC’s rules now that he is in charge. But Carr has also been aggressive in regulation of media, and he doesn’t want the FCC’s ability to issue penalties completely wiped out.”
The FCC already has no remaining authority to hold your shitty broadband provider to account. And if this trajectory holds, they’ll no longer have the ability to police things like scams and robocalls, or to protect public cybersecurity safety, throwing our telecom networks into (further) disarray.
Some of these folks are stripping away regulatory authority simply because, like Musk, they don’t want oversight of their often dubious — if not outright illegal — behaviors. Others have drunk decades of right wing and “free market” Libertarian Kool-Aid about how if you dismantle corporate oversight and regulatory autonomy, magic and innovation spills forth from the sidewalk.
Of course here in reality, when you strip away oversight of large, politically-powerful corporations (like say, AT&T or Comcast), most objective folks know those companies just double down on all their worst, anti-competitive, anti-consumer impulses. It’s been a generational effort by companies like AT&T to turn the FCC into a pile of pudding, and it’s not, I regret to inform you, in service of the public interest.
So on one hand, you have corporate power achieving its generational goal of destroying labor rights, consumer protection, and adult oversight. On the other hand, you have Brendan Carr and his legally-dubious efforts to behave like a full-diapered bully in pursuit of bigotry and religious extremism. If I had to bet between the two, I certainly know who I’d pick as the most likely winner (spoiler: it’s the one with more money).
Either way this country loses. I don’t think the fact we’ve lobotomized all our federal regulators has received anywhere close to enough attention from our feckless, corporate press for what should be obvious reasons. We’re ushering in the golden age of corruption, and I’m not sure the impact of what’s coming is truly fathomable to your average American.
Even in a best case scenario where Trump authoritarianism is destroyed, I’m highly doubtful that, in a country this corrupt, the incentive will ever exist to fully restore regulatory autonomy. This die is cast, the deadly impact is going to reverberate for generations, and I hope all the folks responsible — from Trumplings to “free market” think tankers — fully enjoy the brave new world they helped create.
For decades, major wireless carriers AT&T, Verizon, and T-Mobile collected vast troves of sensitive user location and movement data, then sold access to any random nitwit with two nickels to rub together. The result was a parade of scandals wherein everybody from stalkers , law enforcement (or people pretending to be law enforcement), car companies, governments, and right wing extremists all happily abused the data in myriad, dangerous ways never made clear to the end user.
Though this behavior had been going on for years generating untold millions, it only gained mainstream attention thanks to a 2018 New York Times story showcasing how police and the prison system routinely bought access to this data and then failed completely to secure it. In 2020 the FCC finally proposed fining wireless carriers $196 million ($91 million for T-Mobile, $57 million for AT&T, $48 million for Verizon).
“When placed in the wrong hands or used for nefarious purposes, it puts all of us at risk. Foreign adversaries and cybercriminals have prioritized getting their hands on this information, and that is why ensuring service providers have reasonable protections in place to safeguard customer location data and valid consent for its use is of the highest priority for the Enforcement Bureau.”
AT&T and the wireless carriers have spent much of the time since urging the Trumplican-heavy Fifth circuit to vacate the fine entirely. Quite obediently, the Fifth Circuit has obliged, this week vacating the FCC’s fines. In its order, the court agreed with AT&T, T-Mobile, and Verizon’s interpretation that the FCC violated wireless carriers’ Seventh Amendment right to a jury trial:
“We reject the Commission’s argument that a section 504 enforcement proceeding satisfies Article III and the Seventh Amendment. The Commission cites no authority supporting the proposition that the constitutional guarantee of a jury trial is honored by a trial occurring after an agency has already found the facts, interpreted the law, adjudged guilt, and levied punishment.”
You’re to ignore that AT&T has been at the American vanguard of making jury trials impossible for customers through its use of fine print forcing users pursue binding arbitration, a lopsided system that finds in favor of corporations a vast majority of the time. Or that AT&T actively spends millions of dollars annually successfully lobotomizing the entirely of telecom oversight, be it congressional, legal or regulatory.
This is all dressed up as very heady, serious, adult reasoning by the Fifth Circuit, but it’s another example of how the U.S. far right genuinely doesn’t believe in corporate oversight or consumer protection. AT&T very clearly violated section 222 of the Telecommunications Act by not getting consumer consent before collecting and monetizing sensitive user location data. Its punishment will be: bupkis.
The authoritarian right is genuinely destroying all regulatory oversight of corporations through either executive order, regulatory capture, or a very lopsided court system. AT&T gets extra attentive, special treatment because it’s effectively bone-grafted to our domestic surveillance systems, routinely making it beyond accountability despite a long history of very obvious fraud.
In the minds of AT&T-friendly judges, lawyers, and think tanks, FCC’s authority to do anything varies depending on the day, week, and direction of the breeze as AT&T exploits a generally corrupt U.S. court system to routinely dodge accountability for… everything. A series of court rulings (like the Securities and Exchange Commission v. Jarkesy ruling the Fifth circuit is leaning on, and more recently Loper Bright) have made it almost impossible to rein in U.S. corporate power, quite by design.
Want regulators to protect you? They can no longer do so without the explicit approval Congress. Want Congress to protect you? Congress is too corrupt to function. Want the courts to protect you? They’re stocked with far-right Trumpies keen on ushering forth the golden age of corruption. Want your state to protect you? It’s increasingly under-resourced as federal governance falls apart and it’s overloaded by legal fights. Want to protect yourself? Your rights are increasingly being boxed in at every turn.
Again you’re to ignore that dysfunction leaves the public at the whims of predatory amoral corporate giants, the often-deadly symptoms of which are everywhere you look. You’re to politely nod at the sage wisdom of the very objective, reasonable, and entirely good faith court rulings and move along with your day as accountability, consumer rights, public safety, and the environment crumble around you.
