The problem of course being that this ruling violates hundreds of years of cases and frameworks (and probably the constitution!), saying "we can rely on precedent" when this law flips precedent on its head is unhelpful.
How does this law violate previous cases and frameworks when similar laws did not in the past (e.g. the Fairness Doctrine for TV and common carrier regulations for phones)?
The fairness doctrine relies very specifically on licensure of radio and broadcast TV frequency use (the government is the provider of all radio frequency licenses, and if you wish to use one, you must agree to certain additional terms. This is not the case for cable TV or the internet).
As for common carriers, one of the usual differences between a common carrier and a not-common-carrier is that a common carrier can't tell what they're transporting. If I throw a box onto a fedex truck, they don't know what's in it. Same for a train (and they're allowed to refuse if they believe it's something they can't transport successfully or safely). The same general concept applies to telephone operators, in that they can't wiretap you, and often ISPs, since they're just transporting opaque encrypted bytes. But tweets and posts on public facebook pages or on reddit are public, the company can see them.
> a common carrier can't tell what they're transporting
They can tell what they're transporting, they're just not allowed to. Telephone operators could wiretap you (and use speech recognition to censor), ISPs could monitor unencrypted data, and even for encrypted data, monitor metadata like which server you connect to. Even FedEx could x-ray packages, or use drug sniffers.
Anyway, you claimed this law violated previous precedents, but you've only responded about how it's different from previous precedents.
Sure there are some differences, but how are those differences material to the question of whether governments are allowed to regulate "fair" or universal access to communications tech?
> monitor metadata like which server you connect to
Common carriers have to do this (they have to know who you're connecting to or shipping to etc.).
> Anyway, you claimed this law violated previous precedents, but you've only responded about how it's different from previous precedents.
No, I said the ruling violated previous precedents, which is obvious, up until today (and in other circuits), the very clear and obvious precedent was that the 1st amendment covered corporations. The first line of this ruling contradicts that.[0]
"Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say" is a fundamental misreading of the constitution, and flies in the face of first amendment precedent. This ruling isn't about the government's particular ability to regulate particular industries, it's "corporations aren't protected by the constitution".
[0]: Aside, yes the law is also bad and likely is unconstitutional for much the same reason, but that's not the argument I was putting forward.
The court isn't arguing that the first amendment doesn't apply to corporations, it's arguing that censorship isn't speech. The core is: "[there is no] freewheeling First Amendment right to censor what people say".
And that is completely consistent with precedent that the First Amendment actually protects people from censorship. The companies are using the twisted logic that there is a first amendment right to restrict free speech.
> And that is completely consistent with precedent that the First Amendment actually protects people from censorship.
This is not the precedent! The first amendment absolutely allows citizens to engage in editorialization and "censorship".
The first amendment protects you from the government! And it gives me the right to assembly, including assembly with others in the form of a joint business venture! And if I assemble with others, very importantly: I don't lose my constitutional rights. Because even when I am assembled, I am protected from government overreach.
The Bill of Rights doesn't protect you from me, and it never has. The Bill of Rights does not protect you from censorship, and it never has. The Bill of Rights does precisely one thing: it protects you, and me, from the government and government overreach. And the government preventing me from speaking against you is government censorship of me.
Like, the ACLU, EFF, and Cato Institute all filed amicus briefs supporting NetChoice (previously when the even dumber part of this ruling was before the Supreme Court).
Edit in response to the below:
no, social media sites aren't common carriers, and you've already admitted that your whole fairness doctrine schtick is a stretch, since the internet's infrastructure isn't licensed by the government (and of course, it cannot be: I don't need a license to upload things!) Treating point-to-point social media, such as instant messaging, like a common carrier might make sense, but a reddit comment or a tweet don't resemble what common carriers carry or how common carriers work. They don't have a destination.
It's also, of course, important to note that there is no constitutional right to ship goods, so while it may be reasonable to regulate such industries, regulating a company whose product is speech is much more tenuous, so while the government can absolutely do common carrier things to a shipping company, it is enjoined, by the constitution, from making a speech company a common carrier.
Edit again:
Phone companies don't produce speech. I cannot hear what you say on the phone. I can see what you tweet. You might rephrase it as publishing vs. messaging. The regulations on a company whose product is publishing cannot be treated the same way as anything else (cue irrelevant arguing about a misunderstanding of section 230). Reddit and twitter and such allow me to publish what I say. T-mobile ships what I say. Common carrier regulations apply only to shipping companies, not publishing companies.
The only reason the First Amendment is in this discussion at all is because the companies are claiming that the First Amendment forbids laws like this, which is clearly false, since such laws have existed for a long time (as mentioned above).
I didn't mean to imply that the First Amendment forbids private censorship (other laws do that). What I meant was, the First Amendment protects people from censorship, when it applies. It's perverse logic to claim that an amendment that prevents government censorship really means that there's a right to censor.
And everything about corporations is an irrelevant distraction; the law would also apply to an individual who owned and operated a social media network entirely by themselves as a sole proprietor.
Edit in response to edit:
> you've already admitted that your whole fairness doctrine schtick is a stretch
No, I admitted that there are some differences. The essential argument, that the First Amendment does not forbid such laws, remains relevant.
> social media sites aren't common carriers
They are if the government says they are, as recently happened to ISPs. This law doesn't exactly do that, but it has similar effect, and that's relevant because it shows that laws with this effect are constitutional.
> [the government] is enjoined, by the constitution, from making a speech company a common carrier.
Phone companies transmit speech, and are considered common carriers.
Edit again:
Whether the communications tech is one to one or one to many, the speech is still the speech of the person communicating, not the tech company. Any free speech rights belong to the writer, not the company that owns the wires or software involved in transmission.
Publishers are something different entirely. Their core business is content creation, not operating the printing press or website. They pay their writers and tell them what to write about. They own the content they publish. And yes, they are responsible for what they publish.
Publishers were historically (and still are!) literally the people who owned the presses, lol. Like you went to a publisher to get your manuscript printed. All the other things, like editing and marketing were secondary to these were the people who could actually mass produce your book. The NYT and WaPo own their presses.
The core business of a publisher, historically, has been the facilitation of scalable access to content created by other people. Even newspapers don't really "tell them what to write about", they hire (or use freelancers!) people who work on their own stories and submit them to the paper. And while newspapers do usually own the content they publish, they don't always, and book publishing houses rarely do.
So the WaPo's and HarperCollins's of the world are a lot more like the YouTube's and Reddit's than you seem to think.
And yes, the individuals who write the articles have first amendment (not "free speech", nobody in the US has a "free speech" right, that isn't a thing) rights. But so too do the Washington Post, and Penguin RandomHouse.
And even though lots of people have had OpEd's in the NYT, and even though Hachette has published books by tons of authors, they're under no requirement to publish my works, because they fully and totally have the right to not enter into a relationship with me, and have the right to not assist me in broadcasting my content. And the first amendment protects their right to associate with and how they want to, and that includes not associating with me.
I want to emphasize this by the way, because earlier you said
> it's arguing that censorship isn't speech
And this fundamentally doesn't matter, because the first amendment protects a number of things that aren't speech, including assembly. I can assemble with whom I want to (and also refuse to assemble with those I don't want to). I cannot be forced into service of any particular individual, and this is true for common carriers, they're not in service of an individual, but of an item. As soon as the thing you're doing is promoting an individual's words or brand, you're not doing what a common carrier is doing.
Shipping a box is exactly the same whether it is your box or Donald Trump's box. But broadcasting a speech on my loudspeaker isn't the same if its your speech or Donald Trump's. As much as you wish it to be, you cannot make those two situations the same.
> I can...refuse to assemble with [meaning doing business with] those I don't want to
> I cannot be forced into service of [again meaning doing business with] any particular [party]
In many cases you are free to refuse to do business with someone, simply because no law exists against it. But you don't have a right to refuse; the government can pass a law punishing you for refusing; and they have passed many such laws.
For example, in many states, you are forbidden to refuse to do business with Israel.
And you're forbidden to refuse to do business with people for a variety of reasons called protected characteristics. The list of such characteristics has grown quite long and includes (in some states) political affiliation, belief, or activity.
From that standpoint, this law is not unusual at all.
> And you're forbidden to refuse to do business with people for a variety of reasons called protected characteristics. (One of which is, in California, political affiliation.)
Due to a constitutional amendment! And even in California, companies are free not to do business without you based on your political beliefs they just can't retaliate against you in the workplace. And of course, the whole discrimination thing only applies if there's not a legitimate non-protected class reason, as we know from masterpiece cake shop.
> For example, in many states, you are forbidden to refuse to do business with Israel, and have been for many decades
Those laws would be unconstitutional and unenforceable. Actual on the books anti-bds laws are much more limited, usually only banning government contractors from boycotting Israel, and even that much more limited stance may be unconstitutional (see a recent Texas anti-bds law that's currently enjoined by the district court due to it's infringement on a corporations first amendment rights!...https://www.salon.com/2022/02/02/anti-bds-law-in-texas-free-...)
There are lots of unconstitutional laws on the books (miscegenation is illegal in a few states, technically), they just can't be enforced, but you aren't doing yourself favors by citing exaggerated, clearly unconstitutional versions of dubiously legal laws as a defense of this one.
That's quite a weak example in which a single low-level judge issued an injunction but "stopped short of fully blocking a state law" and an advocacy group claimed the law was unconstitutional.
Anti-BDS laws have existed in many states for quite some time, under many different courts, and not been overturned. So until a SC decision finally finds such laws unconstitutional, I will continue to accept that they are, even though I am strongly against them.
> the whole discrimination thing only applies if there's not a legitimate non-protected class reason
Protected classes vary by state. In Texas, because of this law, political belief is now effectively a protected class, at least w.r.t social media.
As you said, Twitter can still claim "a legitimate non-protected class reason" (like, the account is a bot) for terminating accounts, but can't "discriminate" against political views.
The California version forbids retaliation in the workplace, the Texas version forbids retaliation on social media. They aren't so different.
> Anti-BDS laws have existed in many states for quite some time, under many different courts, and not been overturned. So until a SC decision finally finds such laws unconstitutional, I will continue to accept that they are, even though I am strongly against them.
That's fine, but they still don't do what you claimed. Your said the laws prevent me from choosing but to do business with Israel. That's not true. That law has the government put a particular line in it's contracts. The government, when acting more or less as a private actor, can do what it wants with it's contracts, even things that would be unconstitutional if passed as a blanket law.
> As you said, Twitter can still claim "a legitimate non-protected class reason" (like, the account is a bot) for terminating accounts, but can't "discriminate" against political views.
It already does: threats of violence are like the primary reason accounts are removed. Being republican isn't carte blanche to threaten or harass people, and neither is being a tankie, and that's why Twitter removed accounts from all sides of the political spectrum without discrimination!
> In Texas, because of this law, political belief is now effectively a protected class, at least w.r.t social media.
No, that's not at all what that means. For one just no. But second, this law goes beyond that and bans speaker neutral, content based policies that aren't indented to discriminate, like for example saying "you're not allowed to threaten to kill people on our platform".
By "publisher" I would assume there is some editorializing going on that makes the publisher legally liable for what they publish. GAF(AM)s are trying to have freedom of a common carrier with the power of a publisher (see my comment in parallel).
Yep, when Facebook first started moderating messages and/or selecting what users view with an algorithm more complicated than "what has been posted last", it was predicted that they were opening themselves to the "publishers are responsible for what they publish" legal attack.
And here we are. These corporations want to have their cake and eat it too...
At the time a lot of people have considered the very concept of platform as evil for this reason ("protocols not platforms"), but this was also related to issues coming from their use of closed source software, and more importantly : antitrust - the mere size of these corporation makes them at the very least "friendly elephant in a china shop" kind of evil, but the USA didn't want to shut down the GAFAMs considering the immense not so soft power their monopolies give them in the world.
A less radical proposal was to have some allowed middle ground between common carrier and publisher : "displayer", but this would still need to come with severe restrictions to what these companies are currently enjoying in the current "lawless" void : again, restrictions on size, kind (think Wikipedia or archival), running as a for-profit, forced usage of interoperable protocols, use of open source software, have been suggested and even somewhat put into practice in recent EUropean laws (though it is suspected that due to the heavy lobbying that the GAFAMs have done, the end result is more that the current laws are helping them by making it harder for new competitors to emerge, while they are so big they can bear the regulatory brunt).
(P.S.: It's kind of amusing to see Texas Republicans to be a shining beacon of liberalism...)
This is a non sequitur. It is legal to repeal section 230. It would be bad, but it is legal. But in either case, the law under discussion is unconstitutional. And it'd be doubly unconstitutional if you're claiming that the point of this law is to get around a federal law. States can't do that, that's the point of the supremacy clause.
There is nothing stopping the federal government from arresting me, in California, for marijuana related crimes. And it regularly does (trafficking), because federal law supersedes state law.
The federal government choosing not to for most cases, and choosing to functionally defer to the states does not affect what it is allowed to do.
And there is a difference between making something illegal and making something legal. Once the federal govt says something is legal, supremacy prevents states from making it illegal (remember the Republican talking point about how the Dems could pass a national abortion legalization law? That works because of the supremacy clause).
Like it's really clear at this point you know basically nothing about how the us legal system works. Because you keep bringing up these things that just are not relevant. And I don't really want to teach you.
