I say the primary method for a President who refuses to uphold his oath should be impeachment. I think the intent of the 25th is more like coma or some other obvious debilitating malady.
That said, 47 is sundowning which should meet the bar under either impeachment or the 25th, but our problem is we require a mass of empowered Republicans (or whatever tf RFK and his ilk are) to do the right thing for either approach and they simply will not. They probably will once the missiles are airborne.
I find it especially jarring that Alito, et al (including CJR and Barrett when it suits them) will absolutely butcher the facts of a case to reach their desired result. They do this even though trial courts are finders of fact. They feel free to ignore the record and insert their own facts.
In Kennedy v. Bremerton School District, the praying coach case, the majority pretended that Kennedy was praying privately rather than at the 50 yard line of the football field. They ignored that lower courts found some students felt pressured to join in the public prayers. Sotomayer called the majority out in her dissent including pictures of the actual public spectacle.
There are also other glaring examples:
Ohio v EPA: The court confuses nitrogen oxide (depletes the ozone) with nitrous oxide (laughing gas) while condescendingly chiding the experts at EPA as mere bureaucrats.
Scientific American did a whole write-up on SCOTUS's aversion to facts.
Now we have a fact-free administration. Eliminating government decimates GDP? Just defy Econ 101 to redefine GDP. Elon Musk isn't a duly appointed, Senate approved member of government and therefore has no authority over federal employees? Just pretend he isn't firing anyone in court filings. Congress hasn't passed a DOGE-aligned budget into law? Just pretend the President can spend federal money any way he wants regardless of current law. (protip: King George III could not do that and we still kicked him out.) Congress owns tariff policy with narrow exceptions for national security? Just pretend that fentanyl is the gateway drug to DJT owning tariff policy.
We've seen this especially in the Fifth Circuit. Regardless of prior rulings, let's YOLO and see if we can find 5 outlaws on the new SCOTUS. Sometimes they win, sometimes they lose. Actually they never lose because for them everything is now in play.
I gave up trying to inspect the hearts or morals of corporations a long time ago. I can only judge their actions, and in this case I think Google's actions are an unalloyed good.
If I were to guess motivations, I think data hoovers like Google have been dreading the day a Texas or Florida prosecutor issues a geofence subpoena for women's healthcare clinics to support prosecuting some poor woman for taking care of herself.
Google is giving users the ability to store the timeline data on Google's servers in an encrypted format that means they cannot respond to a subpoena, so I don't think it's storage.
Section 230, titled Protecting Good Samaritan Blocking and Filtering of Offensive Content, was explicitly passed in response to Stratton Oakmont v. Prodigy Services Co., No. 31063/94, 1995 WL 323710 (N.Y. Sup. Ct. May 24, 1995), which held Prodigy liable for a bulletin board post on its platform. The reasoning? Prodigy attempted to moderate for foul language, which the court decided made them a publisher. 230 explicitly overturns that by granting immunity when platforms moderate in good faith.
And note I did advocate the removal of section 230. Prodigy was a simple host. They did simply provide a platform with minimal moderation to aid the health and growth of the community (see Masnick: hey Elon) Our modern platforms do not simply host. It's increasingly impossible to limit your interaction with a community of your choosing. Content is promoted into your timeline based on opaque algorithms that seem to be for the platform's benefit rather than the users (see Doctorow: enshittification)
230 certainly should be tweaked to make clear that the strict definitions (user v publisher) and immunities in section 230 are not necessarily applicable when platforms do more than simply host content others post. I already think our modern platforms do more than "good faith moderation" but the courts, non technical as they are, have been confused about this nuance. Congress should clear it up for them.
I can't take credit for my clarity on this. I always knew something was wrong with how we've treated this, but there are people who have done the work. As I said originally, I highly recommend Danielle Keats Citron. Here she is on the Amicus podcast. And here a paper she published on the subject.
I will argue that Congress and the President are well within their rights to threaten internet companies with changes to section 230. After all, section 230 granted internet companies, then in their infancies, common-carrier-like immunities without imposing common-carrier like regulation. This was done in the hopes they would continue to implement some good faith content moderation. After all, the only immunity 230 itself confers is upon good faith moderators, reversing a NY state case that held Prodigy strictly liable because they moderated for language.
I am not a lawyer, but I suspect the authors of 230 never meant to exclude (then non-existent) algorithmically-ranked content from this liability, but, hooboy, the courts are surely confused, probably because they aren't technologists.
Congress would be well within their rights to tell today's internet companies they might instruct the courts that promoting, amplifying, and profiting off of, incitement, hate, defamation, etc, are clearly not under the 230 umbrella.
Look at some of Danielle Citron's work here as I think she nails it.
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I say the primary method for a President who refuses to uphold his oath should be impeachment. I think the intent of the 25th is more like coma or some other obvious debilitating malady. That said, 47 is sundowning which should meet the bar under either impeachment or the 25th, but our problem is we require a mass of empowered Republicans (or whatever tf RFK and his ilk are) to do the right thing for either approach and they simply will not. They probably will once the missiles are airborne.
I find it especially jarring that Alito, et al (including CJR and Barrett when it suits them) will absolutely butcher the facts of a case to reach their desired result. They do this even though trial courts are finders of fact. They feel free to ignore the record and insert their own facts. In Kennedy v. Bremerton School District, the praying coach case, the majority pretended that Kennedy was praying privately rather than at the 50 yard line of the football field. They ignored that lower courts found some students felt pressured to join in the public prayers. Sotomayer called the majority out in her dissent including pictures of the actual public spectacle. There are also other glaring examples:
- The fake wedding website designer who had never done a website for a wedding.
- Ohio v EPA: The court confuses nitrogen oxide (depletes the ozone) with nitrous oxide (laughing gas) while condescendingly chiding the experts at EPA as mere bureaucrats.
Scientific American did a whole write-up on SCOTUS's aversion to facts. Now we have a fact-free administration. Eliminating government decimates GDP? Just defy Econ 101 to redefine GDP. Elon Musk isn't a duly appointed, Senate approved member of government and therefore has no authority over federal employees? Just pretend he isn't firing anyone in court filings. Congress hasn't passed a DOGE-aligned budget into law? Just pretend the President can spend federal money any way he wants regardless of current law. (protip: King George III could not do that and we still kicked him out.) Congress owns tariff policy with narrow exceptions for national security? Just pretend that fentanyl is the gateway drug to DJT owning tariff policy.SCOTUS doesn't respect precedent so nobody else does either
We've seen this especially in the Fifth Circuit. Regardless of prior rulings, let's YOLO and see if we can find 5 outlaws on the new SCOTUS. Sometimes they win, sometimes they lose. Actually they never lose because for them everything is now in play.
I'm just going to leave this 🧵 here: https://bsky.app/profile/adamserwer.bsky.social/post/3ks2vay6kya2w
I gave up trying to inspect the hearts or morals of corporations a long time ago. I can only judge their actions, and in this case I think Google's actions are an unalloyed good. If I were to guess motivations, I think data hoovers like Google have been dreading the day a Texas or Florida prosecutor issues a geofence subpoena for women's healthcare clinics to support prosecuting some poor woman for taking care of herself. Google is giving users the ability to store the timeline data on Google's servers in an encrypted format that means they cannot respond to a subpoena, so I don't think it's storage.
Section 230, titled Protecting Good Samaritan Blocking and Filtering of Offensive Content, was explicitly passed in response to Stratton Oakmont v. Prodigy Services Co., No. 31063/94, 1995 WL 323710 (N.Y. Sup. Ct. May 24, 1995), which held Prodigy liable for a bulletin board post on its platform. The reasoning? Prodigy attempted to moderate for foul language, which the court decided made them a publisher. 230 explicitly overturns that by granting immunity when platforms moderate in good faith. And note I did advocate the removal of section 230. Prodigy was a simple host. They did simply provide a platform with minimal moderation to aid the health and growth of the community (see Masnick: hey Elon) Our modern platforms do not simply host. It's increasingly impossible to limit your interaction with a community of your choosing. Content is promoted into your timeline based on opaque algorithms that seem to be for the platform's benefit rather than the users (see Doctorow: enshittification) 230 certainly should be tweaked to make clear that the strict definitions (user v publisher) and immunities in section 230 are not necessarily applicable when platforms do more than simply host content others post. I already think our modern platforms do more than "good faith moderation" but the courts, non technical as they are, have been confused about this nuance. Congress should clear it up for them. I can't take credit for my clarity on this. I always knew something was wrong with how we've treated this, but there are people who have done the work. As I said originally, I highly recommend Danielle Keats Citron. Here she is on the Amicus podcast. And here a paper she published on the subject.
I think the "good" part is also actually bad
I will argue that Congress and the President are well within their rights to threaten internet companies with changes to section 230. After all, section 230 granted internet companies, then in their infancies, common-carrier-like immunities without imposing common-carrier like regulation. This was done in the hopes they would continue to implement some good faith content moderation. After all, the only immunity 230 itself confers is upon good faith moderators, reversing a NY state case that held Prodigy strictly liable because they moderated for language. I am not a lawyer, but I suspect the authors of 230 never meant to exclude (then non-existent) algorithmically-ranked content from this liability, but, hooboy, the courts are surely confused, probably because they aren't technologists. Congress would be well within their rights to tell today's internet companies they might instruct the courts that promoting, amplifying, and profiting off of, incitement, hate, defamation, etc, are clearly not under the 230 umbrella. Look at some of Danielle Citron's work here as I think she nails it.