Cathy Gellis 's Techdirt Comments

Latest Comments (147)

• On the post: On Friday SCOTUS Will Decide Whether TikTok Can Be Banned; We Told It The First Amendment Says No

  

  Cathy Gellis ( profile ), 07 Jan, 2025 @ 12:07pm

  Um...

  Stay tuned for tomorrow's post. A Certain Someone told them NOT to ban it, at least not now, and that may hold some water, because even though his reasons were stupid he actually sort of kind of was accidentally right... (But you'll just have to wait to see this explained more tomorrow.)

• On the post: Jawboning In Plain Sight: The Unconstitutional Censorship Tolerated By The DMCA

  

  Cathy Gellis ( profile ), 21 Nov, 2024 @ 06:35am

  Yikes...

  That Wikipedia quote has some major issues. It is correct in its implication that Section 230 does not reach user speech that offends federal criminal law. But federal criminal law does NOT include copyright! The reason Section 230 doesn't apply here is because it separately doesn't afford platforms any protection for copyright claims, but that's because they are construed as "intellectual property," which is a second area where Section 230 was limited in its application.

• On the post: Just Because You Can, Doesn’t Mean You Should, Or What Disney’s Litigation Disaster Teaches Us About Tech Policy

  

  Cathy Gellis ( profile ), 21 Aug, 2024 @ 02:07pm

  I don't think it has to be all or nothing. In some ways adhesion contracts make sense, because they can include things like a price term. "By using our product you agree to pay us $X..." And from that point of view, they are useful and good for everyone. Being able to strike quick deals tends to make the deals cheaper. But the more onerous the provision, the less beneficial the deal is, and the less likely that one can argue that a customer would have willingly agreed to it. On the other hand, if that term is the only thing that makes it possible for the company to offer the product or service, then maybe the customers would willingly agree, so that they can benefit from those products and services.

• On the post: The Eleventh Circuit Ignores The Supreme Court And Its Own Precedent To Stick It To Black Women

  

  Cathy Gellis ( profile ), 07 Jun, 2024 @ 01:11pm

  Oh, so they'd already built enough transit? They did THAT first? Because it's pretty invisible. I'd say you might want to dial back your condescension in favor of decent reading comprehension, but that would suggest you're interested in good faith discussion, when all evidence suggests otherwise.

• On the post: The Eleventh Circuit Ignores The Supreme Court And Its Own Precedent To Stick It To Black Women

  

  Cathy Gellis ( profile ), 07 Jun, 2024 @ 06:44am

  "You said it was a 'first step', but as Dan pointed out, they were prepping for it for years." Uh, you're not very good at logic, are you...

• On the post: The Eleventh Circuit Ignores The Supreme Court And Its Own Precedent To Stick It To Black Women

  

  Cathy Gellis ( profile ), 06 Jun, 2024 @ 01:06pm

  What people with more experience than me? No lawyers were engaging, and people kept insisting I knew nothing about the transit layout of the area when I use it all the time. No, I'm absolutely not willing to be cowed by arguments that are all about feels and ignore the basic reality of how things work.

• On the post: The Eleventh Circuit Ignores The Supreme Court And Its Own Precedent To Stick It To Black Women

  

  Cathy Gellis ( profile ), 06 Jun, 2024 @ 06:30am

  Corporations have the same First Amendment rights as people. They'd have to, or else individual rights would automatically get extinguished as soon as they got together with others. What's the point of a right of association if as soon as you associate you no longer have the right to? The issue is that businesses serve other functions sometimes, and the nature of that function ends up being the justification for curtailing that right. But as I noted in another comment to you just now upthread, the court here does nothing to engage with whether THIS type of business of the Fund was the kind where the its nature could justify the curtailment of a right it was supposed to have. It just assumes so.

• On the post: The Eleventh Circuit Ignores The Supreme Court And Its Own Precedent To Stick It To Black Women

  

  Cathy Gellis ( profile ), 06 Jun, 2024 @ 06:24am

  If we have to allow that to allow this, then yes. But also: this decision does not even try to engage with whether the scholarship is coming from a public or private source. Or involves any sort of business involving questions of public accommodation, where it might be more defensible, or at least a trickier decision (like, if it were an exclusive club choosing whom to allow as members, although even the Dale case suggests such discrimination would still be ok). But this decision, by its own analytical terms, simply stands for the proposition that the government can tell a private entity with whom they can share their resources, and it hinges this acceptable compulsion entirely on the fact that the relationship involved a "contract," with no discussion about how that hyperfocus on this contract caused it to ignore any of the expressive interests implicated. So even if the decision might have been right, it was still wrong, because it was so sloppy and unsupported in how it reached that decision. Like the headline says, it ignored a lot of precedent, and misunderstood what little it engaged with. That's not how to do jurisprudence...

• On the post: The Eleventh Circuit Ignores The Supreme Court And Its Own Precedent To Stick It To Black Women

  

  Cathy Gellis ( profile ), 05 Jun, 2024 @ 08:07pm

  What this post actually says...

  I'd highly recommend that all the people still complaining how this case shows the 303 Creative decision was wrong actually go back and read what I wrote in the post. But here, I'll post a summarized version: The 303 Creative decision, read correctly, should have killed the plaintiffs' claim. Their claim survived ONLY because the Eleventh Circuit decided to ignore what the 303 Creative decision ACTUALLY said and pretend it said the opposite of what it did. So why are so many people wishing the 303 Creative decision actually said the opposite of what it did? Because if that were the case then the plaintiffs definitely SHOULD have won, per Supreme Court precedent. Whereas here they won ONLY because the Eleventh Circuit read the decision as badly as you've read my post and gotten it all completely backwards. At least now there's a chance that the Eleventh Circuit could fix it en banc, or the Supreme Court, or even if none of them do, at least EVERY OTHER COURT can still follow the precedent correctly and dismiss any other similar plaintiffs' claims. Which they could not do if the 303 Creative decision had been decided the other way. I have no idea why you would wish that to be the reality, because it would just officially greenlight crushing even more of these programs. Whereas here it just crushed this one because these particular judges were bad at their jobs.

• On the post: The Eleventh Circuit Ignores The Supreme Court And Its Own Precedent To Stick It To Black Women

  

  Cathy Gellis ( profile ), 05 Jun, 2024 @ 07:45pm

  Exactly

  "you wanted a legal win for your principles" Yep. And this case illustrated why they are important. We got a bad result here because they were betrayed. We would have gotten the right result, however, if they'd been followed. I don't know why you think anyone would be better off if the 303 Creative decision had tossed out those principles. Then there would be nothing to protect anyone.

• On the post: The Eleventh Circuit Ignores The Supreme Court And Its Own Precedent To Stick It To Black Women

  

  Cathy Gellis ( profile ), 05 Jun, 2024 @ 07:42pm

  Why would I do that?

  The 303 Creative decision was right. The Eleventh Circuit was who was wrong to ignore it.

• On the post: Unanimous SCOTUS To States: No Strong-Arming Third Parties To Silence Those You Dislike

  

  Cathy Gellis ( profile ), 31 May, 2024 @ 03:31pm

  And Backpage v Dart was about Sheriff Dart pressuring companies who were part of the payment process.

• On the post: Unanimous SCOTUS To States: No Strong-Arming Third Parties To Silence Those You Dislike

  

  Cathy Gellis ( profile ), 31 May, 2024 @ 03:30pm

  I think that was mostly out of fear from FOSTA enforcement, but that's not a completely unrelated issue.

• On the post: Because The Fifth Circuit Again Did Something Ridiculous, The Copia Institute Filed Yet Another Amicus Brief At SCOTUS

  

  Cathy Gellis ( profile ), 10 Jan, 2024 @ 08:22am

  Er, the Constitution says that this injunction is itself unlawful, yet here we are... You cannot easily advise agency officials to just ignore its prohibition and chat away freely. Unconstitutional or not, they have to let it shape their behavior.

• On the post: Because The Fifth Circuit Again Did Something Ridiculous, The Copia Institute Filed Yet Another Amicus Brief At SCOTUS

  

  Cathy Gellis ( profile ), 09 Jan, 2024 @ 05:04pm

  The platforms don't have to abide by it, but the feds they want to talk to are afraid to take their call, so the conversation doesn't happen.

• On the post: Because The Fifth Circuit Again Did Something Ridiculous, The Copia Institute Filed Yet Another Amicus Brief At SCOTUS

  

  Cathy Gellis ( profile ), 09 Jan, 2024 @ 05:03pm

  We made that point...

  In the brief we have a section addressing that all a government official needs to do to get platforms to do something is ask for the opposite.

• On the post: An Appeals Court Broke Media Advertising, So The Copia Institute Asked The California Supreme Court To Fix It

  

  Cathy Gellis ( profile ), 01 Dec, 2023 @ 08:45am

  As the letter points out, the efforts to take out Facebook will take out every media business, online and off.

• On the post: An Appeals Court Broke Media Advertising, So The Copia Institute Asked The California Supreme Court To Fix It

  

  Cathy Gellis ( profile ), 01 Dec, 2023 @ 08:44am

  I'm what? There is always tension between the First Amendment right of association and anti-discrimination law. That it has at times been decided in favor of the latter does not mean that it has been decided that the latter trumps the right of free expression. And, as noted, 303 Creative reminds us that it doesn't.

• On the post: An Appeals Court Broke Media Advertising, So The Copia Institute Asked The California Supreme Court To Fix It

  

  Cathy Gellis ( profile ), 01 Dec, 2023 @ 06:46am

  No harm

  The case is basically a troll, to find grounds to take out Facebook. Even if the appeals court decision holds she's still not likely to win, because she wasn't actually harmed. She's upset that she didn't know about the promotion to be able to go learn more about what else the company offered, but she obviously did know that the company was around offering insurance, and she was in no way kept from their website or any other means of contacting them to see what policies they were offering. In other words, if the decision is upheld she'll still lose, but now so will everyone else.

• On the post: An Appeals Court Broke Media Advertising, So The Copia Institute Asked The California Supreme Court To Fix It

  

  Cathy Gellis ( profile ), 01 Dec, 2023 @ 06:43am

  Unruh Act IS fixed...

  It's called the First Amendment, and the Unruh Act doesn't get to trump it.

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