NetChoice v. Paxton: Briefs are in.

NetChoice, LLC v. Ken Paxton, Attorney General of Texas, 21A720 (Supreme Court 2022)

I previously wrote about the Texas Social Media Censorship Law known as HB20.  A portion of the case is pending before the Supreme Court on an emergency motion to vacate the 5th Circuit’s recent decision allowing the law to come into force even as it is being challenged.  After NetChoice filed its petition, Justice Alito requested responsive briefing from the state of Texas.

Those briefs have now been filed and provided below with a small excerpt or comment for each amicus brief.

= = =

  • Appendix containing lower court opinions.
  • Party Briefs:
  • Amicus Briefs Supporting NetChoice.
    • Rep Chris Cox: Amicus Brief Supporting NetChoice.  Cox is an author of Section 230 and provides its explanation of its importance and relevance to the case.
    • Prof. Eric Goldman: Amicus Brief Supporting NetChoice.  Goldman adds that the “editorial transparency requirements [of HB20] violate the First Amendment.”
    • EFF, Wikimedia, et al.: Amicus Brief Supporting NetChoice. “Allowing HB20 to go into effect will cause social media platforms to alter their content moderation practices in ways that will harm the public interest.”
    • Cato Institute, Amicus Brief Supporting NetChoice. “The public interest is harmed by allowing the law to go into effect because most users do not want to see animal abuse, terrorist recruitment material, or racial slurs when they go on Facebook, nor do Facebook and other social media platforms want to host such material.”
    • ACLU, Reporters Committee for Freedom of the Press, et al.: Amicus Brief Supporting NetChoice. The brief argues that editorial autonomy is critically important. Although HB20 applies to social media and not newspapers the brief suggests it will have a chilling effect.
    • FLOOR64: Amicus Brief Supporting NetChoice.  The owner of Techdirt.com.  HB20 “takes aim at the entire Internet ecosystem and its ability to facilitate any online expression at all.”
    • TechFreedom: Amicus Brief Supporting NetChoice. “The Fifth Circuit panel order is poised to unleash a torrent of awful content.”
    • Chamber of Progress, Anti-Defamation League, IP Justice, LGBT Tech, et al.: Amicus Brief Supporting NetChoice. The law would force publication of wasteful speech and would “render content moderation functionally impossible.”
  • Amicus Briefs in Support of Texas.
    • State of Florida, Amicus Brief in Support of Texas. Social media platforms “have supplanted the telephone for interpersonal communication, traditional television for news consumption, and the 24-hour cable news cycle in the potential to swing an election.” They should be regulated as such.
    • Professor Philip Hamburger, et al.  Amicus Brief in Support of Texas. Hamburger explains that he has studied and written “on how governments, in the seventeenth century and again today, tend to privatize their censorship, leaving their dirty work to less accountable, private actors.”  He argues that common carrier style regulation is  an appropriate mechanism to promote speech.

84 thoughts on “NetChoice v. Paxton: Briefs are in.

  1. 6

    >>“on how governments, in the seventeenth century and again today, tend to privatize their censorship, leaving their dirty work to less accountable, private actors.”

    Not sure of what should be done but I am sure this is true. And I am sure that this is exactly what the Ds did by threatening FB and Twitter with ends section 230 protections and by threatening anti-trust actions. We know that the federal government has been in tight communication with FB and Twitter telling them what is disinformation according to the Biden Administration.

    Basically, in my view, Musk has it right. Make what you are doing transparent. Maybe the federal regulations should only be that whatever a social media site does in censoring must be transparent?

    1. 6.1

      Maybe even make it a deal that protection from being sued for defamation only applies if you create a neutral public censoring system for your social media site. Otherwise, the presumption should be that you are a publisher and responsible for the content on your site.

      1. 6.1.1

        I would go for too even ratings of social media sites like for movies.

      2. 6.1.2

        What if…. pondering…

        If “social media” Provider X is deemed to NOT be a publisher, and I were to post a new work of the performing arts onto Provider X’s social media, and it registers 2MM page views, how would the Copyright Office view the posting ? Would such posting constitute publication of the composition / performance ? Or does the song remain unpublished, because Provider X is not a publisher ?

        1. 6.1.2.1

          OK wise guy.

          I mean that link to en.wikipedia.org would only apply if you create a neutral public censoring system for your social media site. Or some other restriction such as you have to make public your censors.

          Let be real here. The Section 230 is allows this sites to exist along with the DOJ not filing anti-trust suits against them.

          1. 6.1.2.1.1

            I see it being clear-cut, social media are publishers, but just as with Milton-Bradley, Houghton-Mifflin etc., they can choose what to publish and what not to publish. Cosmopolitan magazaine chooses to not publish things which Larry Flynt would publish, and so on. Freedom of the press has always been limited to those who own one !!

          2. 6.1.2.1.2

            Word salad at the end there.

            Let’s be real here. Section 230 and the DOJ’s hands off policy are the only things that enable the social media sites to exist such as they are.

            The government can easily control the social media sites with changes to Section 230 and with threats of anti-trust action.

            1. 6.1.2.1.2.1

              Yeah, potential for application anti-trust laws appears to be high on this one; anti-trust might totally trump other issues.

              I don’t know what I’d ascribe as the reason for why such sites exist today, probably consider the US has a long tradition of free speech coupled with the notion that social media is relatively new. It seems a great topic for a professor to explore, “the evolution of free-speech law in the US” It’s being written as we write.

              1. 6.1.2.1.2.1.1

                CW – how do you feel about Section 230?

                How do you feel about the public square doctrine?

                1. Thanks, I don’t have any real deep thoughts on it.

                  It seems that a privately-owned media outlet should be permitted the ability to regulate the contents of what non-shareholders can post, i.e., a privately-owned publisher is free to exclude “others” and they have the power to define what “others” means.

                  But what if the media outlet is publicly-held ? Do publicly held outlets, who receive benefits afforded by their public ownership, have to pony up and be subjected to regulation by the Public ? I lean towards the answer being yes, and a self-regulating government can do whatever the H it chooses !

                  You’ve got the argument also, that ppl who were banned from one site have the freedom to go make their own media platform, and if its a private outfit, they can exclude whomever they want.

                  Complicating factors include the relatively high-cost of setting up one’s own media outlet, it is greatly less accessible for inclusion of all, than obtaining a printing press was, say 50 yrs ago. On top of that, there seems to only be so much “room” in the galaxy for media outlets. Btw FB and GOOG, those two cover the vast majority of the internet-o-sphere. Should pieces of each or either of those be parsed out as was done with Std. Oil ? I haven’t seen anti-trust mentioned, perhaps there is nothing here.

                  My only suggestion as of now is that Uncle Sam create a social media platform, and let anyone write anything their lil ole heart desires.

                  just my (inflated) two-cents….

                2. The deep thoughts (which are necessary, given the complicating factors) change the calculus — this is just not a cut and dried FA item.

                  Also – for similar reasons, the Public Square doctrine is implicated.

                  There is nothing wrong with having a general view of the First Amendment.

                  There is everything wrong with trying to force feed a general view into a non-general, specific, and admittedly complicated legal situation.

                3. Section 230 is actually… irrelevant. I didn’t want to write that yesterday, b/c I didn’t want to frighten the kiddies. 🙂 Banning ppl from “free speech” is a good thing. Reason ? Back in the day when one disagreed with another, they’d possibly have a duel or other mess, b/c less-advanced minds have little tolerance for opinions which conflict, with their own conflicted opinions. Pushing the “ban” button is easy, and involves no bloodshed, gives the censor person a sense of accomplishment. How so many seemingly gifted minds will in ad finitum manner, knit-pick legal technicalities as the citadel burns. I’d be more concerned about perhaps food availability, and tackling the usual attendant unpleasantries associated with the unraveling of a “democracy”. Very few if any, care about 230, and at this point, it really is irrelevant. 🙂

                4. CW,

                  I see that our discussion is at an end if you are going to dismiss Section 230 as irrelevant.

                  Most attorneys would not be so cavalier with impacting legal concepts, but you are free to clench tight your eyes as you may wish to do so.

                  That does — though — greatly devalue any views that you may wish to pronounce.

                  Hopefully the next topic will see better from you.

                5. Thanks again Anon. Its irrelevant b’c the time window of opportunity for any changes to have meaningful effect in the real world, is closed. Regardless of interpretation of 230 or any new legislation, the effects of recent past history have caused dramatic, irreversible changes. I tend to come to patent matters from the more practical side as well. I mean, what good are laws which are not enforced as written anyway ? The US Sup. Ct. circa 1906 declared bleached flour as being adulturated within the meaning of the law, but the executive never enforced, and many are vastly familiar with many other laws, not enforced. The current situation involves groups of politically powerful and well-monied interests, and I’d wager specie that they’re going to get what they want, and it seems fairly clear what they want. It boils down to practical reality of enforcement. Censorship is as ancient as the second cave man who didn’t like the first cave man’s wall art. In economics theres a concept called Gresham’s Law, relating to how “bad” money drives out good money. Can we make a similar analogy in the legal trades ? I’d have to author any expounding on that topic anonymously, so call it “Anon’s Law” which states that “Bad Law Drives Out Good” Thanks for your postings, I always enjoy reading alternate perspectives of others. Have a great day !!

                6. Thankfully, CW — any “time window” is simply not up to you or how you may think of things.

                  I am going to have to take such a path as the one you are on as nothing more than being lazy.

                  Deep thoughts are always pertinent and timely — even if you just don’t want to expend the effort.

                  It’s a good thing that you have no authority to dismiss anything, eh?

      3. 6.1.3

        Maybe even make it a deal that protection from being sued for defamation only applies if you…

        Wt advised to give the Amicus Brief by Cox a read.

        I did.

        Cox actually makes his argument TOO strongly, and in effect these platforms should lose their section 230 protection – by the logic that Cox himself espouses.

  2. 5

    I’d previously heard talk about some banks having been “too big to fail.” Could it be that there are social media companies that are “too big to regulate ?”

  3. 4

    Off topic, but I tip my hat to Michael Kaufman, whose $7 million verdict against Microsoft was today upheld at the CAFC (Dyk, Reyna, & TARANTO). This may be the first small entity inventor ever actually to win a judgment against Microsoft (if anyone here knows of another, I would be obliged to hear it).

    This is a vanishingly rare occasion. To win the appeal with Judge Dyk on the panel is a doubly remarkable occasion.

  4. 3

    I am old enough to remember when it was conservatives who used to warn us that no good comes from the government trying to thwart market forces. How did we reach the point where it is the republican party trying to nationalize industries and seize the means of production? I feel like I have fallen through the looking glass.

    1. 3.1

      If you are seriously asking that question, then you must have been a child in 2000.

      Remember: it’s always projection with the R’s. They don’t have any goals other than maintaining power and wealth for themselves and their shrinking constituency of white dominionists by any means necessary. Once you understand that much, everything they do can be understood and predicted.

      1. 3.1.1

        Pardon Potential rePeat due to Count Filter….

        Your comment is awaiting moderation.

        May 20, 2022 at 1:30 pm

        Remember: it’s always projection with the R’

        From the Queen of the Iron Rule of Woke Projection….

        The irony is stultifying.

  5. 2

    For sure we need to know what “17th century governments” did. Really important and deeply serious.

    1. 2.1

      Is there a reason for your aversion from learning from history Malcolm?

      1. 2.1.1

        I’m not averse to history. I’m averse to bad laws and professors with poorly functioning brains.

        The fact is that there is a ton more well-documented and relatively recent history (including history on the use of propaganda by, e.g., ultra-nationalist Germans) that is also far more relevant to the situation in Texas.

        1. 2.1.1.1

          Sure – there is such – but I would wager a healthy sum that any such lessons to be learned will NOT go in your favor.

          I would also add that Dr. Lindsay’s expertise would illuminate your own position across the spectrum here – and that light that you would be put in would be most unfavorable.

          1. 2.1.1.1.1

            “Dr. Lindsay’s expertise”

            This Dr. Limply you worship is quickly turning into a joke at both of your expense. Take it out of your mouth, Billy.

            1. 2.1.1.1.1.1

              Your se x ual innuendo does you no favors — along any spectrum.

              There is no joke here Malcolm — other than your diving immediately into ad hominem as opposed to addressing any substantive point in any way remotely resembling a cognitive manner.

              But you be you – that only makes my points even more effective.

            2. 2.1.1.1.1.2

              “This Dr. Limply you worship is quickly turning into a joke at both of your expense.”

              The leftist fears Dr. Lindsay.

              I actually listened to the 3 hr or whatever talk he did on Hegel and the underpinnings of “theloldialectic” which drives leftist thinkers to this day. The modern day incarnation is so tar ded that it should literally be banned from universities. It’s basically building a whole paradigm for society on pure refined sophistry.

              1. 2.1.1.1.1.2.1

                3 hour??

                You mean the one on 5/28/2021 (a year ago)?

                You do realize that he had 47 hours of explications UP TO that point (and I have not counted how much since then)?

                He literally has every current Liberal Left philosophy NAILED down to the brass tacks. And for ALL of this, not one person has ever advanced a cogent counterpoint or shown a mistake in his work.

                Anyone make light of him only exhibits their own lack of awareness.

  6. 1

    Before this reaches facebook level discourse of calling democrats marxists (which happened quickly in the last texas HB20 post), interesting to think about SEC v Jarkesy non-delegation doctrine decision in 5th circuit– namely that giving discretion to SEC on whether to initiate administrative hearings with no guiding principle is unconstitutional– and how it applies to fintiv rules and director discretion of IPR institution. PTO’s view that it has virtually unlimitedand (more
    impotantly) unguided discretion in setting rules around IPR institution would seem to be in trouble under this theory.

    1. 1.1

      Odd into, but diving down to your point as to how Congress wrote the AIA giving institution decision power to the Administrative Agency of the Patent Office, I am not seeing the “issue” you allude to with the discretionary authority provided.

      Can you elucidate why this discretionary nature is a legal problem?

      Congress wrote a law intending the executive branch to have a discretionary authority (as to part one of a two part system) and choose to set up a lack of standing for that first part in line with accepted administrative procedures.

      What is the issue that you think that you see ?

      1. 1.1.1

        >Congress wrote a law intending the executive branch to have a discretionary authority

        I don’t want to put words into DJK’s mouth, but the issue is that the Constitution specifically vests the legislative power in Congress. New Deal courts worked around that language by holding that Congress could delegate its power if (and only if) the statute contained a guiding principle i.e., even under the New Deal precedents, unlimited delegated discretion is not Constitutional (even if passed by Congress)

        FWIW, the issue isn’t about the scope of federal power i.e., the administrative state could continue on its merry way. It’s just that Congress would have to be involved a little more than it is now.

        1. 1.1.1.1

          OC,

          These are indeed fair points.

          More than fair.

          The tone though in regards to Congress providing a power to the administrative agency and the explicit discretionary power WAS constrained with several guiding principles, and is not in fact entirely unlimited.

          I do NOT see why you would think that Congress need be more involved than it is now for this particular sharing of its authority.

          1. 1.1.1.1.1

            If the USPTO is really arguing they have “unlimited discretion” about anything (I don’t follow that stuff closely), they are going to get slapped. That’s never the right answer, particularly so nowadays.

            side note: if true, such a position would also be sloppy lawyering, as the courts are notoriously deferential as to any proposed limiting factor.

            1. 1.1.1.1.1.1

              “If the USPTO is really arguing they have “unlimited discretion” about anything (I don’t follow that stuff closely), they are going to get slapped. That’s never the right answer, particularly so nowadays.

              side note: if true, such a position would also be sloppy lawyering,”

              That is what some among has have expressly argued. link to patentlyo.com

              anon: “””How is “arbitrary or capricious” reached when Congress blankly put it: ‘at the discretion of the Director?’ Congress did not limit that discretion in any manner.”””

              1. 1.1.1.1.1.1.1

                slightly different context – see below.

          2. 1.1.1.1.2

            The PTO’s stance is that the language of 314(a) provides it discretion on when to institute IPR’s. (Precisely, because 314 only says director ‘may not’ institute unless challenger is likely to prevail, then the director ‘may’ deny even if challenger is likely to prevail. it never requires institution if challenger is likely to prevail). I invite you to find a guiding principle in 314(a), which is the source of director’s discretion.

            1. 1.1.1.1.2.1

              Straight out of a rabbit hole, isn’t it ? What left me a bad taste is the authority to deny even when a challenger is likely to prevail.

              1. 1.1.1.1.2.1.1

                It’s even more than “authority to deny,” — it’s that AND you have no recourse just because you FEEL “likely to prevail.”

                There is of course a reason for this, as MOST ALL people will feel that their (virtuous) side is OF COURSE “likely to prevail,” and Congress intent was to say, “Admin Agency — you don’t have to put up with any such bickering.”

                (Plus, there are several other guiding factors that may – from time to time – be more important to you as decision maker).

                1. I hear ya. But, what if one really IS likely to prevail, based on the facts, all emotion aside? eek, it leaves the door wide open for malfeasance.

                2. I hear you as well — but such was indeed the desire of Congress – they did not want the Administrative Agency to be subject to (well-monied) pressure as to “NO REALLY, THIS IS LIKELY TO PREVAIL.”

                  They provided a few guide rails, and — knowing that Phase 1 was not in front of an Article III court (no standing required), wanted to provide a bit of ‘cushion’ against any potential onslaught from those without standing (but may well have been VERY well funded).

                  In other words, if you take a step back, that “bad taste” may not be as bad as you first considered.

                3. As to malfeasance – that concern does not escape my contemplation, as indeed — the Executive Branch IS the branch most infected with partisanship and “deals.”

                  There IS very real concerns with putting so much “Fourth Branch” power in the Executive Agency.

                  (no matter which party happens to control the White House)

              2. 1.1.1.1.2.1.2

                What left me a bad taste is the authority to deny even when a challenger… really IS likely to prevail, based on the facts, all emotion aside?… [I]t leaves the door wide open for malfeasance.

                There are only two possibilities here vis-a-vis a challenger who really is likely to prevail: (1) the challenger faces a threat of enforcement sufficient to sustain a DJ against a motion to dismiss for want of standing; or (2) the challenger does not.

                If (1), then the challenger can always present that meritorious argument to a district court. If (2), then it is no great loss to the system overall that the meritorious argument is not made (it is fine if the occasional invalid patent sits unnoted and unenforced).

                Meanwhile, it is important to remember that APJ time is a finite good. At some margin, time spent on one IPR is time that cannot be spent on another IPR. If you worry only about the meritorious challenges that are not instituted, you will forget about the meritorious challenges that are instituted, and that can only be instituted because some other challenge was not.

                1. There’s other reasons to do IPR’s, but ok. Odd isn’t it, all instituted cases were merirorius and non-instituted, the day prior to their having been declared instituted. All meritorious Petitions are equal. For various reasons some aren’t instituted. My bend was that if a party wants to prevail, and if the case is likely to prevail, then why not let the party have at it and do their prevailing ?

                2. Yeah – no – I cannot agree that the “weight” of meritous versus non-meritous is a binary thing.

                  I have no ideas why you would even begin to think of such a thing.

        2. 1.1.1.2

          It’s childlike to not assume- and adjust- for the fact that there are nine branches of government. No entity can function without internal law making, law enforcing, and law interpreting: only the degree and subject matter is in question. The legislative branch has to do some amount of enforcing and interpreting, the executive some amount of rulemaking and interpreting, and the judicial some amount of rulemaking and enforcement. To seek a Platonic separation of powers in all accounts and factual situations is sophistry that simply devolves to the nihilism of denying reality.

          1. 1.1.1.2.1

            marty, YOU lecturing anyone on “childlike” when it comes to the law is quite frankly preposterous.

            You cannot even be bothered with the terrain of patent law upon which you would choose to do battle.

    2. 1.2

      And by the way, it is not a “FaceBook level discourse of calling democrats marxists,” as it is a much more learned recognition that many of the “D” party have indeed sprinted Left, and espouse the Neo-Liberal, Post-Marxist views of identity politics and culture battles.

      This is an area of science and research well documented by the likes of Dr. James Lindsay. Your statement then – to the effect of attempting to diminish or dismiss what is actually going on should be labeled as disinformation.

      1. 1.2.1

        But Billy is not just reciting a rightwing script, folks, or carrying water for a party of white supremacists. Nope. It would be so rude to suggest otherwise.

        1. 1.2.1.1

          Sorry Malcolm but no – the references I point to are NOT “right wing scripts.”

          Quite in fact, the expert is a Left of center person.

          You are only confirming the Musk meme of “sprinting Left,” – as well as confirming my very own even longer outstanding (and entirely accurate) characterization of you and your tactics of
          A
          O
          O
          T
          W
          M
          D

      2. 1.2.2

        This entire reply is total buzzword nonsense. Neo-liberal? and post-Marxist too? These people contain multitudes.

        Note 1: Lindsay traveled the well worn contrarian to right-wing grifter pipeline.

        Note 2: All politics are identity politics, and if you don’t see that, its because you benefit from keeping the status quo.

        1. 1.2.2.1

          OSitA,

          These are terms of art – and with historical contexts – as such they are the very opposite of “buzzword nonsense.”

          That YOU may not understand them (or have taken the time to recognize their historical pedigree) does NOT mean that you can label them as you do in order to dismiss them.

          Your views on Lindsay remain in error. He is not right wing at all, let alone a right wing grifter.

          And no – NOT all politics are identity politics. That you think so AND add that this “must be” “because you benefit from keeping the status quo” is a KNOWN fallacy of the Left.

          You really do need to listen through Dr. Lindsay’s works — every position that you have attempted has already been debunked. You are WAY behind the curve here.

          1. 1.2.2.1.1

            Why would I want to read the words of a right wing grifter?

            These are terms of art – and with historical contexts – as such they are the very opposite of “buzzword nonsense.” That YOU may not understand them (or have taken the time to recognize their historical pedigree) does NOT mean that you can label them as you do in order to dismiss them.

            Shear nonsense. Just because your right-wing grifter uses these buzzwords in advancement of his grift doesn’t actually give them any meaning.

            And no – NOT all politics are identity politics.

            Summoning my best Anon. You are simply blind to the reality that surrounds you. Maybe if you opened your eyes and open your mind you would know what your thoughts have been debunked.

            Seriously though, anyone that uses the term such as “race marxism” or “social marxism” is trash. It is just cultural bolshevism with lipstick on.

            1. 1.2.2.1.1.1

              The count filter strikes again…

              Your comment is awaiting moderation.

              May 20, 2022 at 5:56 pm

              One reads to understand — and as noted, Dr. Lindsay is neither Right Wing, nor grifter.

              That you seem incapable of accepting this says far more about you than you likely realize (and it’s not good).

        2. 1.2.2.2

          “Lindsay traveled the well worn contrarian to ri ght-wing gr ifter pipeline.”

          He’s literally a liberal.

      3. 1.2.3

        James Lindsay? Really? Lol.

        1. 1.2.3.1

          Yes, Really.

          Do you care to challenge any one single point of his?

          The man has done his homework.

          1. 1.2.3.1.1

            His Twitter name right now ends with “weaponizing your mom”. He is no one to take seriously, beyond “Lol”.

            1. 1.2.3.1.1.1

              I think he means it in a literal sense, as in, he’s literally weaponizing soccer moms against leftism. Literally, this is a thing, it is happening. He’s not just having a jape.

            2. 1.2.3.1.1.2

              If you don’t want to take his “Twitter name” seriously, then don’t.

              But you DAMM better take his diligent expose of the fundamentals of the Left seriously.

              If for no other reason than for you to check yourself.

              As I have noted for others — this is not me of several excellent sources that provide to me a better understanding of the Left philosophy than anyone that I have ever engaged with in Politico-philosophy.

              If you are the type that are “going to be offended” by a Twitter handle (or a tweet), then you are the type that should not be telling anyone else anything about this world.

              1. 1.2.3.1.1.2.1

                Once again, lol.

                1. Always your choice, IamI – But that choice is to remain in 1g n0r ance here.

                  His series of podcasts are simply well established in the very teachings of the Left. You might even come to understand WHY you feel as you do.

                  And by the way – Dr. Lindsay IS left of center.

                2. Sure – Ok – but hey – you be you.

                  (you must be one of those HARD sprint to the Left folk)

                3. No wonder you like James Lindsay so much. You never pass up an opportunity to a) get a pet buzzword in, and b) demonstrate how wrong you are.

                  In other words, lol.

                4. Your reply is most odd – as you are the one using a singular “buzzword” of “lol” – while also merely claiming that I am “demonstrating how wrong I am.”

                  Feel free to actually show ANYTHING as to me being wrong.

                  Have you even bothered trying to inform yourself so that you could form an informed view of what is right or what is wrong?

    3. 1.3

      In response to Djk, it has not gone unnoticed that the 5th Circuit’s reasoning is effectively a broadside attack on the Constitutionalit of the entire “administrative state” as we know it.

      And of course it’s intentional because the 5th Circuit judges were put there exactly for that reason: to destroy the ability of the Feds to regulate the red states in that district when the red states disagree. Of course, if a red state passes a plainly unconstitutional law diminishing the rights of a minority or selectively advancing the rights of a preferenced religious group, then that law will be upheld by the 5th Circuit because of course it will be.

      1. 1.3.1

        That tinfoil hat you have on is cinched a little tight there Malcolm.

    4. 1.4

      [D]iscretion to SEC on whether to initiate administrative hearings with no guiding principle is unconstitutional…

      Congress gave the PTO guiding principles to inform its exercise of discretion. 35 U.S.C. §316(b)

      1. 1.4.1

        Yes but would the Framers have considered it to be sufficient? That is the key question. In order to answer, we should consider the 17th century writings of slavery promoter Lord Heathen Shanworthy on the sufficiency of principles.

        1. 1.4.1.1

          If the framers wanted to have a say in modern jurisprudence, they should have put their thoughts in the Constitution or refrained from dying.

          1. 1.4.1.1.1

            Ha!

        2. 1.4.1.2

          The “Framers”
          were concerned about accurately calculating the value of an enslaved human being.

          Oh, and freedom! They were really into freedom.

          1. 1.4.1.2.1

            You are always – and I do men always – invited to leave this country that you so despise, Malcolm.

          2. 1.4.1.2.2

            Same thing today. Between the economists, actuaries, and labor statisticians, I bet they have a number for the value of a life. Avg. earnings potential, number of workforce participants vs. non-participants, lifespan, etc. – there is a number. Isn’t it odd that approx 49.9% are worth less than average, by definition !

            1. 1.4.1.2.2.1

              Isn’t it odd that approx 49.9% are worth less than average, by definition !

              I did chuckle – thanks for that!

            2. 1.4.1.2.2.2

              “Same thing today.”

              I’m sure it looks that way if you are mentally ill, challenged or just a disgusting human being.

              1. 1.4.1.2.2.2.1

                Thanks for caring about me ! I love the USA, everybody cares so much for everybody else, and, there’s soooo many heros, everywhere ! Everybody is a Hero !! Even you, one might reckon !!

                I shared an opinion, and you shared a medical opinion that seemed to suggest I’m somehow “disgusting”. If you care to elaborate with any articulated reasoning, I’d entertain it. I’ve practiced patents about 25 years, its been cool working with so many cool ppl !!

            3. 1.4.1.2.2.3

              ” Isn’t it odd that approx 49.9% are worth less than average, by definition !”

              Not here in Lake Wobegon.

      2. 1.4.2

        316(b) provides guiding principle to prescribe regulations; it does not give guiding principles on when to institute IPR hearings. if the pto were to issue the Fintiv rules as regulations as provided under 316(b), they would be subject to APA challenge. they have not done so.

        The PTO has rather contended that 314(a) (not 316) provides the PTO with discretion on when to institute an IPR since it is written permissively. Good luck finding a guiding principle in 314. Of course, institution decisions are not reviewable, which is why they search for discretion under 314 instead of 316.

        1. 1.4.2.1

          I see the points that you are making Djkjkjkjkjkjk (including my own prior statement).

          Perhaps though – the guidance from Congress (in addressing the larger context of Branch to Branch authority sharing – which is a slightly different context from which you grabbed my quote) has to do with MORE than merely one section of the AIA.

          1. 1.4.2.1.1

            Indeed, the express Congressional guidance restricting all IPRs to only normal 102 and 103 examination issues with only patents and publications and for only a limited time after service of a complaint, etc.

            1. 1.4.2.1.1.1

              Yes Paul – but Djkjkjkjkjkjk grabbed an earlier quote of mine that was made in a different context as to the open-ended discretion of the PTAB whether or not to institute at all.

              Parameters as you note provide guidance, but the open-endedness of “to institute” or “not to institute” was an unfettered power given by Congress to the administrative agency.

              Djkjkjkjkjkjk has conflated this without regard to the context.

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