Supreme Court Continues Preliminary Injunction of HB20 – with dissent

by Dennis Crouch

NetChoice, LLC v. Paxton, 21A720, 596 U.S. ___, 2022 WL 1743668 (U.S. May 31, 2022)

The most recent news in this case is that a 5-4 Supreme Court has sided against Texas–issuing an emergency order to reinstitute the preliminary injunction against enforcement of the Social Media Censorship law known as HB20.  The case is now back before the 5th Circuit who review the preliminary injunction order in a non-emergency fashion.

= = =

The State of Texas enacted HB20 to regulate large social media platforms (>50 million users).  The law has a number of reporting requirements and also prohibits large social media platforms from censoring users based upon  that user’s viewpoint viewpoint. Here, “censor” is broadly defined “to mean to block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression.”

NetChoice is a lobbying organization controlled by large media companies, including Google, Facebook, TikTok, Amazon & Twitter.  Those companies argue that HB20 impinges upon their Constitutionally protected free speech rights.  In particular, the large social media platforms argue that the First Amendment protects their rights to operate as editors making publication decisions.

= = = =

The Supreme Court’s decision against Texas was issued without an opinion by a 5-judge majority of Chief Justice Roberts along with Justices Breyer, Sotomayor, Kavanaugh and Barrett.  Four justices dissented, including Justice Kagan who did so without any opinion. The only opinion then came from Justice Alito’s dissent that was joined by Justices Thomas and Gorsuch.  This sort of decision here is quite wonky — it is an emergency order to vacate the 5th Circuit’s order to temporarily stay the district court’s preliminary injunction.  Here, I want to just focus a bit on Justice Alito’s First Amendment suggestions, which he notes have not been finalized at this preliminary and emergency stage.

Justice Alito’s opinion identifies the first amendment issues at stake here to be important and novel. “It is not at all obvious how our existing precedents, which predate the age of the internet, should apply to large social media companies.”  Although editorial control is certainly within the First Amendment, the court has previously allowed requirements to be placed on broadcast and cable television and even a shopping center. See PruneYard Shopping Center v. Robins, 447 U. S. 74 (1980) and Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622 (1994).

Next step in the case is for the 5th Circuit to decide whether to cancel the preliminary injunction.  I expect that the court will at least narrow the injunction if not entirely eliminate it.  At that point the case will move back down to the district court.  If Texas does begin enforcement then there will likely be a number of cases moving up through both State and Federal courts.

 

219 thoughts on “Supreme Court Continues Preliminary Injunction of HB20 – with dissent

  1. 17

    There is a backstory to my litigation. An attorney was going to file the case for Olivia and me, but he died in June 2021. I rewrote the case so that it could be filed in the United States District Court for the District of Massachusetts and so that I would be the only plaintiff.

    One can find the litigation on Pacer:

    District Court: Martillo v. Twitter, 1:21-cv-11119-RGS,

    1st Circuit Appeals Court: Martillo v. Twitter, 21-1921, and

    Supreme Court: Martillo v. Twitter, 21–6916.

    The Ohio, 1st Circuit, 5th Circuit, and 11th Circuit cases all seem to complement one another in highlighting serious problems, inequities, and injustices in the actions of social medium platforms.

    I am winging it in the Court of Appeals for the First Circuit and should be outmatched because Medium hired a top-notch legal gunslinger.

    My experience with the FCC and with the Court of Appeals for the DC Circuit as well as my understanding of the technology along with my knowledge of history of message common carriage seems to be a sort of equalizer.

    It took a while for the Counsels for Twitter and for Medium to acknowledge how old the technical and legal history of the common carriage of digital personal literary property is.

    Message common carriage of digital personal literary property starts in the 1840s well before the 1869 enactment of the two Massachusetts common carriage statutes, which are at the heart of 1/3 of my litigation.

    1. 17.1

      In order to make a point, I petitioned SCOTUS for certiorari to the Court of Appeals for the First Circuit before judgment even though there was not much to review at that point because the Court of Appeals for the Fourth Circuit should not be allowed to create law by using a logical fallacy (denial of the antecedent) to reach a decision as the Court of Appeals for the Fourth Circuit did in Zeran v. America Online, 129 F.3d 327 (4th Cir. 1997).

      It breaks the US legal system if logical fallacy is allowed to creep into a legal ruling.

      1. 17.1.1

        Very nice pictorial demonstration.

  2. 16

    link to youtu.be

    Here is an example of why 230 needs to change or the courts need to address the active curation with a bias issue.

    See you can defame a person by selecting which content remains on the site–take down the truth and leave up the defamatory statements, which currently FB thinks is protected by 230.

    1. 16.1

      It is pretty to anyone that puts in a few minutes of work. One can be defamed by active curation where the curator picks a side or allows defamatory content to remain while removing all other content that would defend your position.

      What this is about is restoring a person’s common law right to sue for defamation. Section 230 as used with active biased curation effectively enables a publisher to commit defamation with impunity.

      1. 16.1.1

        I think the Scotus would definitely take cert on one of these defamation cases.

        I also think the way back to sanity in this country would be greatly helped if people could more easily sue for defamation.

    2. 16.2

      Here is an example of why 230 needs to change or the courts need to address the active curation with a bias issue.
      Getting your news from Tucker Carlson’s show? Not much hope for you then.

      I suggest your read the Opinion and Order Granting Motion to Dismiss in a slander suit against Tucker Carlson. It is dated September 24, 2020. Fox argued “Mr. Carlson’s statements ‘cannot reasonably be interpreted as facts.'” Here is another one:
      “Fox persuasively argues, that given Mr. Carlson’s reputation, any reasonable viewer ‘arrive[s] with an appropriate amount of skepticism’ about the statement he makes.”
      Regardless. Getting your news from Tucker Carlson is akin to getting an understanding of 101 law from MM. It is one note — ALL THE TIME.

      See you can defame a person by selecting which content remains on the site–take down the truth and leave up the defamatory statements, which currently FB thinks is protected by 230.
      Again, let me recommend you actually get on Twitter and see for yourself what is ACTUALLY going on there. Let me recommend going to MTG’s account and starting working off of that. Perhaps you can peruse some of the people that she is following or is following her. You may need to take a shower afterwards, but I very much doubt you’ll come away thinking that Twitter is some leftwing sanctuary.

      One can be defamed by active curation where the curator picks a side or allows defamatory content to remain while removing all other content that would defend your position.
      Again, go on Twitter and see what is actually going on. Stop getting your news from Tucker Carlson.

      I also think the way back to sanity in this country would be greatly helped if people could more easily sue for defamation.
      OK, we’ll put you on the side for chilling free speech.

      I think the Scotus would definitely take cert on one of these defamation cases.
      You really haven’t read much 1st Amendment cases recently, have you?

      1. 16.2.1

        Come on. You didn’t address the legal issues at all.

        1. 16.2.1.1

          His view is that ANYTHING from Tucker (or Fox, or [pick your source]) can be dismissed entirely out of hand.

          Dr. Lindsay covers this in one of his podcasts.

          Certainly Tucker – just like ALL media programs – must be taken with a grain of salt and applying independent and cognitive reasoning is in order — just as it is always in order.

          It might be interesting (then again it might not), to understand if Wt accepts at face value ANY mainstream media source.

          Or if he still thinks that there was no “there” there with the Hunter Biden laptop, the Hillary Russia collusion hoax, Dr. Fauci’s emails or any number of “inconvenient-to-the-Liberal-Left-narrative” stories.

          It’s actually funny – as a Centrist, I am typically surprised at how much fodder the Left keeps on giving the Right (as if they WANTED ‘conspiracy theories’ to run amuck).

          1. 16.2.1.1.1

            I’ve said this before but if you just learn a lot about a few issues and then observe how different news outlets report the issues, then you opinion of the legacy media will change. Everything has changed since 2016.

            I’ve voted D for decades but now I will vote R. I think over the last 18 months that I will never vote D again unless there is major reform in the D party.

            1. 16.2.1.1.1.1

              You are an example of the Elon Musk stick figure “Sprint Left” meme.

              Of course, to folks like Malcolm, anyone not already “sprinted Left” was already in the “Far Right” ‘one bucket.’

              1. 16.2.1.1.1.1.1

                anon, the other thing that most of these people don’t realize is that the legacy media has completely changed since 2016.

                If you just learn a lot about an issue and look at the facts reported by the legacy media, you quickly learn that the legacy media is not reliable. The legacy media is like the Star at the grocery store at this point.

                Plus the misrepresentations about the Rs and Fox are ridiculous. Some of the content on Fox is excellent like Maria on business. And notice when people criticize Tucker that there are never any specifics. Tucker even has recently said maybe a minimum basic income is a good idea. Doesn’t sound far right to me. And if you actually understand issues you realize many of Tucker’s positions agree with real academic positions or think tank positions on issues. Like the Ukraine where real scholars look at the Ukraine and say that this whole thing was instigated by the USA military industrial complex by arming the Ukrainians and provoking Russia, which is what Tucker says.

                Fox has some ridiculous biases like still supporting Trump and the big lie. But if one does a simple test. Write down the 10 most important facts about an issue and see if the legacy media reports those facts for an issue, you will find they do not.

                In fact one interesting thing to do is read/listen to 10 different news sources about an issue and write down what the important facts are and the subset each of the 10 news sources reported on.

                (I also note that Fox seems to have far more diversity in thought than the legacy media where Fox tolerates people on the left. And Fox now seems to have a lot of diversity in the type the legacy media cares about–gender, sexual identity, and skin color.)

                Plus, if you listen to Fox, which is completely different than it was in 2016, you will find that they fairly assess the arguments of the other side. They actually try to understand and present what the other side is saying something the legacy media does not do.

                Anyway….when you get to reality of facts, there is simply nothing to support the accusations against Fox. Funny too about the lawsuit against Tucker as the first person to use that defense successfully was Rachel Maddow who is the most popular or was commentator on the left. A kind of Tucker for the far left.

                1. Like you notice that all we hear about on the legacy media is the great danger of w h ite su prema cy and even all this targeting by the DOJ on this issue. But where are these people? What have they done out of proportion to other skin colors?

                  The FBI statistics say that an Asian, Hispanic, or black American is more likely to commit a hate crime than a white person. But somehow there are all these people somewhere doing all these bad things that we don’t hear about and this is the biggest problem. Shear nonsense. And the facts at the FBI website back up what I just said.

                2. ALL of this is nothing more than the identity politics of the Neo-Liberal, Post Marxist machine.

                  The podcast series by Dr. James Lindsay explicates this – to a T.

              2. 16.2.1.1.1.1.2

                All of this affects patent law because we have moved into a post reality stage in the USA where the propaganda is more important than reality and actually the scary part is that the government and social media now try to shape the statistics to try and fit their narratives rather than being objective.

                Lemley is a good example of this where he just pushes propaganda about patents that has no basis in fact.

                1. You notice like w hi te su pre ma cists are like the troll problem in patents. It has become the boogey man to justify any action by the left.

                  And, yet, when real studies are done and real statistics are looked the reality is there are a few w hite s u pre ma cists but not many and they cause fewer problems than other races in the USA. This is just like the troll problem where when real studies have been done the answer was there was never a troll problem. There were a few problem companies cause some minor troubles. And this was used to dismantle the patent system.

                  The far left is doing the same thing with the boogey man of whi te su pre mcists. Where are these people? What have they done? There are a few that have caused some minor problems but not out of proportion to other problems caused by other sick people with different sk in color.

                  So neither is a real problem. It illustrates how propaganda rules our thinking. And notice that each time that Fox is criticized that real facts aren’t used. Often they mischaracterize a position a single person on Fox holds as if that represents all of Fox. That is the thing with Fox compared to the legacy media. Fox actually tolerates diversity of thought. Tucker can say stuff that is out there and does not represent what anyone else on Fox believes. And others at Fox will actually criticize Tucker or at least debate the issues fairly.

                  The legacy media is like a cult where they all say the same thing and claim that the pod casters and Fox are far right disinformation. But the facts don’t support this.

                  You see this is all related to patent law because we have become ruled by propaganda machines and 230 helps enable that.

                  Just look at Lemley’s nonsense. Or Garland’s nonsense. Actually too it is a lot more scary than this as if you learn more about issues you realize how corrupt the D O J is. They are like a third-world country at this point. But you have to actually put the work in to understand issues. Like I would challenge anyone that doesn’t understand what I am saying to do a deep, deep dive on Cohen. Just learn all the facts on this case and you will learn that the legacy media, the D party, and the D O J are corrupt beyond measure. Seriously I challenge you to learn everything about Cohen. I will respond to your posts about Cohen.

                2. Garland is as corrupt as can be — and he was the “Justice-to-be” that was denied because of the “R” political moves.

                3. “So neither is a real problem. ”

                  That depends on your perspective. In MM et al’s minds, the existence of a single bona fide ra cist, and a bulk of the population that are supportive of a rac ially unequal in outcome “system” (government, school system etc.) is basically grounds to fe ar that your own gen ocide is imminent unless you, and everyone you ever meet, take immediate action against the ra cist. And even then you’re still wary. And to be fair, they’re probably right (or will be eventually). Western nations are arguably almost 80+ years into becoming overdue for the very human, very routine on a humanity scale, gen ocide. So they are not entirely without merit in their concerns. Obviously however, this is not an excuse to turn society and politics into a sht bu rger for everyone, in perpetu ity.

                  “Where are these people?”

                  Didn’t you hear? They’re down in “the most ra cist town in ame rica” (insert video of Hassan the le ftist getting m ad when a black youtuber went to “the most ra cist town in america” and was welcomed, overly so, and docume nted the whole thing, the whole dra ma is up on youtube).

                4. Eurabia and white re placement scares are incited by Zionist propaganda that is intended to distract from the ongoing ge nocide Zi onist colonial settlers perpetrate in Pa lestine.

  3. 15

    I haven’t read enough about this yet to really be able to express my thoughts.

    But there is something wrong with 230 when it is coupled with active curation of content that is biased. (It is weird that the tribal thinkers who now believe that FB and Twitter are on their side defend this. Just a complete loss of rational thought on their part).

    I think this does implicate the Constitution. I’d have to read some more cases but the problem here is that FB (and it has done so) can provide a forum for your opponents to defame you and then when others try to defame your opponent they are removed or their content is removed.

    So what it does is it provides a means where a person does not have a recourse to ensure they are not being defamed and unfairly in that active curation can make it so that an opponent does have such protection. Plus, you get the government action where the federal government has been twisting the arm of FB and Twitter with threats of anti-trust action or resending 230, and you have real Constitutional issues.

    My guess–cert is going to be granted for a case involving 230. I admit I can’t quite put my finger on the best arguments but my intuition tells me that 230 is unconstitutional. It needs an added clause that it applies only in cases where the content provider is not performing active curation with a bias.

    Imagine if Congress passed a statute that allowed the NY Times to print whatever defamatory content it wanted about anybody they didn’t like because they could merely select which op-ed pieces to publish and which not to publish. That would not be Constitutional to remove a person’s ability to sue for defamation.

    JR point about preemption is strong. Joachim’s argument seems to be that FB and Twitter may be subject to other statutes for denial of service.

    1. 15.1

      (And please no tribal arguments. This is not an R vs. D thing. )

      1. 15.1.1

        Certainly with biased curation coupled with 230, a person is denied their right to protect their good name under common law.

        Yup. I am certain now. 230 will get cert at some point and will fall.

      2. 15.1.2

        Yes and no.

        At its core, the issue is indeed “R v D” neutral.

        However, as I have noted, not only is the current power structure conducive to “D” propaganda, you have active attempts at gaslighting in pretending that there is no issue at all.

        In this sense, Joachim’s case is an example of a non-“R” instance of content control.

        You are also correct in noting the hypocritical “Rules for Thee” Leftism of “it’s ok for my side” (note how Malcolm cannot handle my middle position of access for all sides).

        This reminds me of my prediction of Malcolm’s flip-flop when it comes to the Supreme Court. He was all fine when the Court was acting in line with his Beliebs (be it anti-patent [which drew my prediction] or social/philosophical), but — as I predicted — when that Same Court turns and decides against his viewpoints, he rails against the same legislating from the Bench.

        He literally is an “Ends justify MY Means” kind of guy.

    2. 15.2

      Just thinking about it, I think this implicates the Equal Protection Clause.

      230 gives large content providers the ability to deny you equal protection under the law.

      1. 15.2.1

        My last comment about this. Sorry for the string.

        I remember when 230 was passed and some of the arguments around it.

        I don’t remember anyone thinking about the implications of active curation to favor a side or enable defamatory comments against one side being allowed to stay posted while defamatory comment against another side were deleted.

        At the time the sites were not engaged in political discourse and it was mainly an argument they were neural and took all the bad stuff they could but they couldn’t operate if they were responsible for all the content.

        So, this is actually another argument that this is unconstitutional or needs to be revisited as I don’t think it was conceived of at the time that a social media site would become political advocates and use 230 to defame one side while protecting their side.

        1. 15.2.1.1

          Two aspects come to mind.

          The first is in reference to an amici brief (iirc, Wt recommended it) written by one of the authors of 230.

          No sure if he understood that his argument proved too much, but it certainly does.

          The second point has to do with volume and the notion that (perhaps a real person) editor, or even a team of such could NOT curate a fast moving wide open web, and thus would need a fa 1l-safe indemnity.

          However, this does not take into mind [sic] the capabilities that hyper-augment editorial control/slant (which include far more than mere banning or even expungement), such as for example shadow banning, de-rating, de-monitizing, and even auto-labeling and tagging content from identified sources that MAY not fit a desired narrative.

          Note as well that the safeguards IN the Texas law reflect the known limitations of speech (in a “Can’t shout FIRE in a crowded theater” mode).

        2. 15.2.1.2

          Indeed. Back to basics. When 230 was passed it was to provide immunity to the platform for my post: “Night Writer has a loathsome disease” (he does not). Ergo Night Writer would not have a cause of action against the platform for my per se defamatory statement because of the immunity granted the platform in section 230. He would of course have an action against me. Flash forward to today, wherein, the social media giants are actively engaging in viewpoint discrimination (basically being publishers albeit of user (or bot?) generated content). As others has said, this is a I want my cake and I want to eat it too scenario, ergo, you have section 230 immunity as given in the first ‘loathsome’ example, but you become a publisher and do not get immunity when you engage in viewpoint discrimination.

      2. 15.2.2

        This is… not how equal protection works.

        If a preacher delivers a firey sermon from the pulpit at Good Shepherd Baptist Church about Muslims, equal protection does not mean that the Muslims get to climb into the same pulpit afterwards and deliver a reply.

        1. 15.2.2.1

          But if that same Preacher does so from the public square (time/place/manner being equal), then most definitely the Muslims DO get to “climb into the same pulpit.”

          The 230 section DOES implicate this scenario.

          The point of the Texas legislation IS to make certain that the public square concept applies.

    3. 15.3

      The Internet is a vast state-supported facility, establishment, or (possibly functional) place of public accommodation for resource sharing. A social medium is within the Internet and thus is state-supported. A social medium comes under Title II of the 1964 CRA.

      Olivia and I together represent 5-6 protected groups under Title II: non-white, Palestinian, Arab, Muslim, Jewish religious, and Jewish ethnic.

      Federally 42 U.S. Code §§ 1981, 1982, & 1983 shield Americans not protected by Title II from discrimination by a social medium platform.

      According to the 10th Amendment common law state common carriage law forbids common carriage discrimination if statutory federal common carriage law is not regulating a social medium platform.

      47 U.S. Code § 223 prohibits obscene or harassing telephone calls in the District of Columbia or in interstate or foreign communications. According to this statute, an Interactive Computer Service is a dial-up

      1. that provides a connection to a private remote server within a private network that belongs to a dial-up non-Internet online service as AOL, Prodigy, or Compuserve were in 1996 or

      2. that provides a portal to the Internet, Bitnet, Usenet, etc. by means of the the non-Internet online service/technology, which no longer exists in 2022.

      The Interactive Computer Service of 1996 is an obsolete technology and does not exist any more.

      47 U.S. Code § 230 is an obsolete statute that the federal courts must ignore. Congress may need to enact a replacement statute.

      1. 15.3.1

        hit a filter…

        Your comment is awaiting moderation.

        June 6, 2022 at 10:55 am

        is an 0bs0lete statute that the federal courts must 1g n0re

        Good luck with that – it is typically NOT up to a court to determine whether or not a law on the books is 0bs0lete (that’s our separation of powers thing for you).

        1. 15.3.1.1

          If there were a law on the books specific to placement of a telephone booth, what would the courts do with it? Harvard used to have an old 1930s phone booth in the Harvard Union. I don’t know if it’s still there. It was the last phone booth that I saw. I suppose a Court could just apply a law, which applies to an obsolete technology, only when the obsolete technology is used.

          Check out 47 U.S. Code § 223 – Obscene or harassing telephone calls in the District of Columbia or in interstate or foreign communications. It refers to an Interactive Computer Service, but the references only make sense for a dial-up service as AOL, Compuserve, and Prodigy were in 1996.

          While it’s certainly possible to harass someone on the Internet or to send someone an obscene Internet communication, it’s not clear that such harassment or obscenity transmission comes under § 223. The Interactive Computer Service, to which one connects by dialing a phone call, does not exist anymore.

          1. 15.3.1.1.1

            That does not move the ball.

            You are not going to make any headway with an assertion that a court MUST 1g n0re something that you want the court to Declare “obs0lete.”

            Your better path is simply urge the court that they MUST apply the law (even if it IS 0bs0lete) if the law is still on the books, and then distinguish your situation from the 0bs0lete law.

            This is where (I think) you run into LR’s disagreement with your construing of the terms in the law to be locked into a state of technology, as opposed to reading the law in a more “technology-equivalent” manner (which may be undertaken given the Context of the law at its writing [and in a sense, NOT getting hung up on ultra fine technical details]).

            1. 15.3.1.1.1.1

              To be honest, in the 12 documents, which I filed, we did not argue obsolescence because we were not sure how to make the argument.

              I focused on:
              1. Title II of the 1964 CRA,
              2. the Reconstruction Civil Rights Statutes;
              3. caselaw based on logical fallacy along with Article I Section I; and
              4. statutory federal telecommunications common carriage law versus common law Massachusetts common carriage law in the context of Article VI, Paragraph 2, and the 10th Amendment.

              If the Court of Appeals for the Federal Circuit revives the case, we will add the issue of the differences between a 1996 Interactive Computer System external to the Internet and a 2022 social medium platform within the Internet into an Amended Complaint. (The case was dismissed without prejudice. I can also file the case anew.)

              At present, we hope the Court will provide guidance with respect to Section 230 caselaw for the First Circuit. (If the guidance is helpful, the case will become attractive to an attorney that would be willing to work on contingency.)

              The First Circuit has not been much involved with Section 230 caselaw, but Martin (the deceased attorney), Olivia, and I wanted to provide the Court of Appeal for the First Circuit with an irresistible opportunity to weigh in on one of the most contentious legal issues of the last 10 years. Martin was good at this sort of strategy.

              1. 15.3.1.1.1.1.1

                We agree with Florida that state actor doctrine is also an issue because social medium platforms are developing exclusionary state actor technology. We will try to work the state actor issue into the Amended Complaint.

                1. Can you explicate…?

                  developing exclusionary state actor technology.

                  My understanding is that the implicating factor is NOT technology, but instead is related to actions taken in agreement with the government, in essence, implicating agency action of censorship that the government MAY NOT carry out directly.

                2. By the by — the now rescinded (and absolutely atrocious idea to begin with) Department of Homeland Security Ministry of Truth (Disinformation Board) was to be a weapon1zed arm of such “working together.”

                  That NONE of the usual Liberal Lefts here did NOT expresss any concern (at all) — you want to talk about over the top Authoritarianism???? — is very telling.

                3. I have not seen a government website add a Twitter DM (Direct Message) chat to its website, but Twitter is encouraging everyone and every entity to use a Twitter DM chat on his website.

                  It seems a quick and dirty way for Twitter to become a State Actor — A Shake and Back State Actor so to speak. You might wish to skim this webpage.

                  Twitter seems to encourage a state or a federal agency to use Twitter DM for website chat instead of developing its own chat system — in other words Twitter holds itself out simultaneously as state actor and as a common carrier — DM is obvious message common carriage. Where does not this situation leave Olivia & Me? We are excluded from practically every social medium because Zionists don’t like our engagement and mobilize to report us for violating community standards.

                  A conservative, who is excluded from social mediums because some organized group does not like him, is in the same boat because of community standards exclusion. Twitter is not the only social medium that encourages adding this sort of functionality to a website.

                  I did not look at this sort of functionality in my Original Complaint because Olivia mostly uses social medium platform common carriage, but maybe I should have looked more at the state actor functionality that a social medium platform holds out.

                  It’s the problem of social medium intertwining of a service or a functionality class with another service or functionality class. It’s probably time to start addressing a quasi-state actor along with a quasi-common carrier. It’s probably also time to start addressing a quasi-hybrid common carrier/state actor. I think this concept could be explained to a judge or to a jury. I have explained a much more complex telecommunications common carriage issue to the FCC than SB 7072 addresses.

                  After an hour or so of thought, SB 7072 begins to seem like a much more reasonable law and possibly like a necessity for the sake of the US political system. Social mediums are in the process of creating a serious political crisis. Kudos to Governor De Santis and to his followers for identifying the problem!

                4. Skimmed the page – doesn’t help your case.

                  Also, if you are going to leverage Florida — make sure you learn the (active) lessons available there.

                5. I did not argue state actor doctrine in my case because the issue did not occur either to Olivia or to me. It might eventually have occurred to Martin, our civil rights attorney, but he died.

                  I suspect that by encouraging the federal government or a state government to use DM, tweet, or text service, a social medium platform becomes a state actor through control of a public state forum. Even more to the point, the social medium platform is using its role in a government chat session/government public state forum to collect valuable personal data from the users.

                  Olivia and I excluded from a social medium platform because of our miscegenation (by Zionist standards). If we are excluded from a government chat/public state forum, the social medium platform, which acts on behalf of the government, violates our 5th and 14th Amendment rights.

                  See Burton v. Wilmington Pkg. Auth, 365 U.S. 715, 81 S. Ct. 856 (1961) [pre-1964 CRA].

                  The case, Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 121 S. Ct. 924, 148 L. Ed. 2d 807 (2001), seems less on-point.

                  Constitutional scholar, Gillian Metzger, states the following.

                  The underlying presumption is that cases where private actors wield public power are rare and occur mainly when the government tries to hide behind private surrogates whom it controls. Current doctrine pays little attention to whether the government is, in fact, delegating power to private entities to act on its behalf. To the extent private delegations are considered, it is under the rubric of private delegation doctrine, which assesses whether the Constitution’s separation of powers and due process requirements prohibit the government from delegating certain types of powers to private hands. But constitutional law makes no attempt to link the constitutionality of a private delegation to the risk that it will place government power outside of constitutional controls.

                6. When you contemplate, “suspect that by encouraging the federal government or a state government to use DM, tweet, or text service, a social medium platform becomes a state actor through control of a public state forum.

                  You don’t quite make it there.

                  Now IF that were the only way to reach that state entity, you might have a case — but merely being one of many avenues won’t get you to that place that you want to be.

                  On the other hand, if even by a “volunteer” agreement, if a social media sight does not apply its own rules evenly and shades to the controlling party’s narrative (yes, some say this is propaganda), then you DO have a private entity in concert with the government doing FOR the government what the government is forbidden to do on its own, and THAT would make the social media entity into a State Actor.

    4. 15.4

      I think this does implicate the Constitution. I’d have to read some more cases but the problem here is that FB (and it has done so) can provide a forum for your opponents to defame you and then when others try to defame your opponent they are removed or their content is removed.
      There are legal remedies for defamation — against the person making the defamation. Section 230 provides protection to internet platforms — only with respect to third-party content that they (i.e., the internet platform) did not aid in developing. Section 230 does not just apply to Twitter and Google but any entity that operates an online space where third parties may post content. This website would be an example of someplace that enjoys Section 230 protection.

      I think you are not accurately characterizing the issue of allowing one party to defame a second party and not allowing the second party to defame a first party. One can go on FB, Twitter and plenty of other websites and find plenty of defamatory statements — on both sides of the aisle.

      However, what will get someone in trouble is that if the violate the terms of service. For example, Twitter has a “Hateful conduct policy” and a “Glorification of violence policy” as well as a “Child sexual exploitation policy.” There is an extensive number of policies. As of April 2022, there is a “Private information and media policy” in which “You may not publish or post other people’s private information without their express authorization and permission. We also prohibit threatening to expose private information or incentivizing others to do so.”

      Plus, you get the government action where the federal government has been twisting the arm of FB and Twitter with threats of anti-trust action or resending 230, and you have real Constitutional issues.
      Both sides of the aisle have “been twisting the arm of FB and Twitter.” Governments twist the arms of corporations all the time — even before there was an internet. For example, Florida has been twisting Disney’s arm. That doesn’t make the government actors. And as I pointed out elsewhere, the most famous banning of an individual by the “internet platforms” occurred while that particular individual was head of the executive branch. How can the government be controlling these internet platforms when the head of the government was banned?

      FB and Twitter may be subject to other statutes for denial of service
      I don’t believe one’s political party is a protected class. Companies get to choose who they want to deal with all of the time. That being said, the governor of Florida still has his twitter account as well as the House Minority leader and the Senate Majority Leader. MTG, of all people, still has her Twitter account.

      That would not be Constitutional to remove a person’s ability to sue for defamation.
      The ability to sue for defamation is NOT contained in the US Constitution. In actuality, the 1st Amendment has been used to limit the applicability of defamation law since defamation law can have a chilling effect on free speech. Who knows, maybe the Supreme Court is in a mood to get rid of a bunch of old precedent these days. While there are some on the current Court that would like to get rid of New York Times Co. v. Sullivan, I think it is unlikely that they will find 5 votes to get rid of the precedent.

      1. 15.4.1

        WT, nah. You don’t get it.

        I understood everything you objected to. The issue is why can’t one sue FB for defamation when they curate content to allow defamation against you but remove content that defames your opponent. Plus these could be bots. Get it? FB becomes a publisher by excluding some content and not others.

        The issue is simple to understand. And, yes your right to defamation arises under English Common law, which was incorporated into the Constitution. In effect, the way 230 is being used by FB, it is a law permitting FB to defame a person. You have to think about that, though, WT. FB becomes a publisher by the act of selecting which content remains on the site when the selection is not purely based on an objective standard of breaking rules of FB.

        We know from the numerous news stories that FB has been performing curation based on political biased and, thus, FB is a publisher and should be liable for defamation.

        There is definitely something to this.

        1. 15.4.1.1

          In effect, the way 230 is being used by FB, it is a law permitting FB to defame a person. You have to think about that, though, WT. FB becomes a publisher by the act of selecting which content remains on the site when the selection is not purely based on an objective standard of breaking rules of FB.
          Actually, the Supreme Court’s application of 1st Amendment law is what will prevent FB/Twitter from being successfully sued for defamation in many instances. Under New York Times v. Sullivan, which I referenced above, the Supreme Court requires “actual malice” for defamation suits against a public figure. That is going to be hard to prove if FB/Twitter does not actually generate the content. If you want to see how this plays out, look at Sarah Palin’s case against the NYT.

          There is a long-recognized tension between the 1st Amendment and defamation law that has been addressed in a multitude of court decisions. And in a great many instances, the Court has leaned in favor of the 1st Amendment. To be clear, in application, Section 230 is more consistent with 1st Amendment law than it is with defamation law.

          The expansive application of the 1st Amendment makes the US very different from many countries. In China, if you post a picture of Winnie the Pooh (as a veiled reference to President Xi), it gets censored. In Russia, if you say something negative against the armed forces, you can get imprisoned. In Thailand, if you say something bad about the king, you go to prison. However, in the US, you can go on Twitter and write ‘#46 drinks the blood of children’ and not be banned. I made this up, but if you go on Twitter right now (i.e., June 6, 2022) you can find posts and even (doctored) videos on this very point. I did the search about 2 minutes ago.

          What you think goes on at Twitter and FB is likely very different than what actually goes on.

          1. 15.4.1.1.1

            WT, you are changing the goalposts. The issue is whether 230 is negated because of FB curating content based on a bias? And is 230 unconstitutional in that it permits a social media platform to commit defamation?

            Whether a defamation case would be tough or not without 230 is not at issue. But I will note that actual malice is only needed when the person is famous.

            Anyway, we’ll see what happens with this. My bet is that 230 is going down in view of FB and Twitter using political biases to curate content. Both FB and Twitter are publishers and should be liable for all the content on their sites.

            1. 15.4.1.1.1.1

              Both FB and Twitter are publishers and should be liable for all the content on their sites.

              For the third time, why? What social goal is advanced by holding Twitter liable if I defame you in a Tweet? I can understand what social good is achieved by holding me liable, but what good does it do to hold Twitter liable?

              Is the goal here just to put social media companies out of business? I can cheerfully get behind that policy (they are mostly pernicious), but creating convoluted liability structures vis-a-vis defamation law seems an oddly complicated way of achieving that end. Surely it would be simpler just to tax them into submission.

              1. 15.4.1.1.1.1.1

                Greg, the goal is the rule of law.

                230 has set up a situation where a publisher can defame you with impunity. The point is to restore people’s rights to sue for defamation.

                1. Greg is still gaslighting you with a “what’s the issue?” viewpoint.

                  For the third time, why?

                  He’s been answered repeatedly. He happens to NOT LIKE that answer though because it does not fit with the Liberal Left desired narrative.

                2. Imagine §230 does not exist. Why—in such a world—would it make sense to assign liability to Twitter for something that I Tweet? What social good is advanced by making Twitter liable for my bad behavior?

                3. Why—in such a world—would it make sense to assign liability to Twitter for something that I Tweet? What social good is advanced by making Twitter liable for my bad behavior?
                  It doesn’t make sense, and there is no social good being advanced. But (thankfully) you already knew that. The goal is to either force Twitter/FB to censor everything, which would go a long ways to driving them out of business, or to have them censor next to nothing, which would go a long ways to driving them out of business.

                4. @Greg DeLassus, because of Stratton Oakmont, Inc. v. Prodigy Servs., undefined (N.Y. Sup. Ct. May. 24, 1995), Congress felt the need to clarify the nature of publisher liability in the context of the World Wide Web, which is explicitly referenced in this case.

                  When I make a post or a comment on a Web site, I transmit a text message from my computing device to a backend server via an HTTP POST or via an HTTP PUT request. This text message is stored in secondary storage on a server.

                  Later when another user does an HTTP GET request to tell the backend server to transmit to his computing device the web page, with which the text message has been associated, the software on the server creates a formatted document, which is transmitted to the user. The user’s browser receives the formatted document and places the document on the user’s screen according to the directives contained in the document.

                  The operations above are automatic and not under human control at the backend where the server resides. Yet the operations have a strong similarity to the actions of a newspaper publisher or of a book publisher.

                  Congress was trying by means of Section 230 to tell the Courts
                  1. that the 1996 Interactive Computer Service was to considered in the class of a newspaper stand or in the class of a bookstore and
                  2. that the 1996 ICS does not bear publisher liability for automatic operations that have similarity to traditional publisher operations.

            2. 15.4.1.1.1.2

              And is 230 unconstitutional in that it permits a social media platform to commit defamation?
              Seriously, bone up on Constitutional law.

              But I will note that actual malice is only needed when the person is famous.
              Famous is not the standard. Again, read up on the law.

              Both FB and Twitter are publishers and should be liable for all the content on their sites.
              Seriously, you don’t see how that ends? If what you are asking for comes to pass, then any site that allows comments (including the one we are typing on right now) would be liable for anything written in the comments. Is your intent to shut down everything? Can you not see the ramifications of what you are asking for?

              The alternative, as proposed by HB20, is no curation whatsoever (or very, very limited curation). Do you want to come across porn or videos of animals being butchered or jihadist diatribes in your FB feed? No curation means no curation.

              1. 15.4.1.1.1.2.1

                Do you want to come across porn or videos of animals being butchered or jihadist diatribes in your FB feed? No curation means no curation.

                The real wierdness is that this already exists, for those who want such things. You can already find fora on (e.g.) Reddit, where there is no moderation and no curation. If conservative influencers really want such an internet space, it is not hard to find it.

                They are fighting so hard to be allowed to post on Twitter and FB precisely because those fora attract so many more eyeballs. But their attractiveness derives precisely from the curation and active moderation. If you take those away, then you are simply back in the world of Reddit—which is fine, if that is what you want, but that already exists even with §230 in place.

                1. I am perfectly capable of setting up filters for myself and for my kids.

                  The social medium platforms are trying to suppress pro-Pales tinian voices on social medium platforms so that US Zio nists escape the consequences of violating US federal criminal anti-genocide and anti-terrorism law.

                  The Internet is a vast federally supported facility, establishment, or (possibly) functional place of public accommodation for resource sharing. The social medium platforms must obey anti-discrimination law with respect to public accommodation, with respect to civil rights, and with respect to common carriage.

                  The social medium platforms must be slapped down hard for violating federal and state anti-discrimination law.

        2. 15.4.1.2

          This should probably be stressed:

          when the selection is not purely based on an objective standard of breaking rules of FB.

          There is a difference when shaping content (or a narrative) involves “extra-rules” or even sham rules, that are simply not applied in an objective measure — especially when the various editorial features (again, these are more than mere expungement or banning) SHAPE the narrative.

          1. 15.4.1.2.1

            Section 230 tells us that an ICS is not a publisher or speaker in one specific situation. Section 230 nowhere says than an ICS is any situation a publisher, which has unfettered editorial discretion. That construction is Fourth Circuit Judge-made law and unconstitutional by Article 1, Section 1.

            It is much more reasonable to interpret Section 230 (if it even applies) to give a social medium platform the status of a bookstore or of a newspaper stand.

      2. 15.4.2

        If a social medium platform applies the terms of service in a discriminatory fashion as Olivia and I assert, the social medium violates the Reconstruction Era civil rights statutes, which still exist and are important:

        1. 42 U.S. Code § 1981
        2. 42 U.S. Code § 1982
        3. 42 U.S. Code § 1983

        1. 15.4.2.1

          If a social medium platform applies the terms of service in a discriminatory fashion as Olivia and I assert, the social medium violates the Reconstruction Era civil rights statutes, which still exist
          Those particular statutes involve race-based discrimination. Granted, other federal statutes address protected classes, which include race, color, national origin, religion, sex, age, or disability. However, one’s politics are not a protected class. The 1st Amendment also has been long held to include a “freedom of association.” This also includes a right NOT to associate with others. Thus, one does not have to associate with others that they, for example, politically disagree with.

          1. 15.4.2.1.1

            The Supreme Court distinguishes regulating conduct in interstate commerce
            1. from abridging freedom of expression,
            2. from abridging freedom of the press, and
            3. from abridging the right of the people peaceably to assemble.

            There is no explicit right in the Constitution for a person to decide with whom he will associate.

            Because of Title II of the Civil Rights Act of 1964, a white restaurateur may not refuse to serve a non-white like my fiancée even though serving a customer is associating with the customer.

            You misread 42 U.S. Code § 1981, which Section 1 of the 14th Amendment enables. Section 1 does not refer to a specific race.

            If a social medium platform gives license under its terms of service to white citizens to express political opinions, with which the social medium platform disagrees, it must give the same license to all white citizens to express political opinions, which which the social medium platform disagrees.

            The 14th Amendment and the Civil Rights Laws, which it enables, protect all US citizens — not only non-whites.

    5. 15.5

      “But there is something wrong with 230 when it is coupled with active curation of content that is biased. (It is weird that the tribal thinkers who now believe that FB and Twitter are on their side defend this. Just a complete loss of rational thought on their part).”

      Heard that, all these corps openly stating that they are curating need to lose 230 protections. I’m surprised nobody has used this against twitter yet in the ongoing brewhaha.

  4. 14

    Millions of taxpayer dollars wasted by Texas.
    When is Paxton going to trial on those felonies

    1. 14.1

      I am not aware of which felonies you speak of – can you elucidate?

      1. 14.2.1

        Thanks Greg. From the article:

        His attorneys point out that Paxton invoked his right to a speedy trial and blame the holdup on special prosecutors, who have spent years in a protracted battle over how much they’re getting paid and where the case should be tried.

        Both sides of the aisle appear to be slimy here, as the “D” squabble is (apparently) manipulated by the “R.”

  5. 13

    For completely different reasons I see that Joachim has invested deeply into the notions of Big Tech and the editorial controls it may use (properly or improperly).

    With a bit of hesitancy, I would ask for more.

    If possible, Joachim, separate out the personal (and clearly important to you) religious crusade [apologies for the pun], note how Greg has reminded you that our Supreme Court has ended your personal legal battle, and instead engage directly LR’s contribution.

    By the way, Joachim, I do appreciate your improvements in presenting logical statements, pairing the logic with plain words, and then asserting your conclusions.

    Here too I note Greg’s contribution by reminding you how our law is via common or civil law.

  6. 12

    This is perhaps an embarrassing question, but how practical would it be for Twitter or FB simply to move its infrastructure and operations to Canada? In other words, could a social media company that did not want to involve itself in this fight successfully avoiding it by leaving the jurisdictional reach of U.S. law (and the laws of the various states)? Would Texas have any continuing reach if Twitter’s people and physical plant were beyond the reach of the “full faith and credit” that one state must give to another state’s judgments?

    1. 12.1

      It is embarrassing – but for a different reason.

      EVEN IF they moved their infrastructure and operations to Canada, they cannot move their operations out of the US (unless, they abandon the US market).

      Do you even try anymore, Greg?

    2. 12.2

      I am not sure what is meant by “out of the jurisdictional reach of the USA”.

      I filed a complaint against six social medium platforms for denial of common carriage in Massachusetts. Massachusetts imposes a fine of $50-500 for each instance of denial of common carriage. I used to have several thousand followers. I used to make 40 tweets a day.

      Arguendo, I had 1000 followers.

      Many of my tweets also identified 20-40 non-follower users for alerts.

      Arguendo, let’s ignore them.

      Each tweet was intended to go to 1000 followers.

      There are 1000 denials of (point-to-point) common carriage per tweet.

      Just by counting my followers, Twitter owes me $2,000,000 per day at the lowest possible fine Because of Twitter maliciousness (see below), I should be paid the maximum penalty. At that fine, Twitter must pay me $200,000,000/day.

      I am suing 6 social medium platforms for comparable fines to be paid to me.

      When I obtain a judgment against Twitter and other social medium platforms, I can and will go after Twitter assets in other countries.

      I intend to transform my lawsuit against the social medium platforms into a class action lawsuit both for a plaintiff class and also for a defendant class.

      Many people are really angry at social medium platforms for good reason — not just the MAGA crowd.

      Twitter is massively supported by the US federal government because Twitter is within the Internet, which is a massively state supported facility, establishment, or place of public accommodation for resource sharing. It comes under Title II of the CRA. See 42 U.S. Code § 2000a – Prohibition against discrimination or segregation in places of public accommodation.

      What did I do for which I was suspended? I told my followers that I love my fiancée utterly. She is Palestinian, and I am Jewish. This sort of relationship drives racial supremacist genocide-supporting Zionists wild. We were mass-reported, and the guy in charge of suspensions at Twitter is a rabidly Zionist Israeli. (Twitter is responsible for his racist bigotry by doctrine of respondeat superior.)

      I have collected reports of similar cases of social medium platform abuse from non-whites, from “TERFs”, from religious people, etc.

      The social medium platforms need to be slapped down hard and really deserve it.

      Florida and Texas are on the defense in a lawsuit for declaratory judgment.

      I am on the offense in a lawsuit:
      1. for massive fines for denial of common carriage in Massachusetts (diversity jurisdiction),
      2. for public accommodation violation, and
      3. for civil rights violation.

      Is there enough commonality for consolidation of the cases? State common carriage violations are at issue in all three cases.

      I am genuinely curious. I am a patent agent and not a lawyer.

      1. 12.2.1

        I hear your view that the reason is:

        What did I do for which I was suspended? I told my followers that I love my fiancée utterly. She is Palestinian, and I am Jewish.

        But that is certainly not what you were told.

        What were you explicitly told?

      2. 12.2.2

        “Just by counting my followers, Twitter owes me $2,000,000 per day at the lowest possible fine Because of Twitter maliciousness (see below), I should be paid the maximum penalty. At that fine, Twitter must pay me $200,000,000/day.”

        “Twitter Hates Him! He received two hundred million dollars from just 40 tweets a day with this one weird trick. Click before you tweet again!”

        1. 12.2.2.1

          Olivia and I decided long ago that money from penalties will go to help Palestinians refugees.

          The Zionist movement intended genocide of the native Palestinian population from the inception of the Zionist movement in 1881. The Zionist movement laid the groundwork for genocide during the LoN Palestine Mandate, which was a hostile occupation.

          In Dec 1996 anti-genocide became jus cogens.

          In Dec 1997 the Zionist movement put the long-planned genocide into operation. This genocide has never ceased.

          Most Americans understand that genocide is something bad. The Zionist movement is desperate to prevent any honest discussion of the genocide, which the Zionist movement planned and has perpetrated against the native Palestinian population.

          I know this assertion is true (a) because my family is practically Zionist royalty, (b) because members of my family planned the initial phase of the genocide from Dec 1946 through Nov 1947, (c) because other members of my family lead Zionist militias during the initial genocide phase from Dec 1947 through 1949, and (d) because I used to work with Zionist hasbarah organizations until I was outside the Mosque of Ibrahim/Abraham when Baruch Goldstein celebrated Purim in 1994 with a spree-murder of 29 worshipers.

          My Zionist militia leader relatives later confessed to me that the Zionist militias of Dec 1947 through 1949 were nothing but rape and murder gangs. Zionist purity of arms (טוהר הנשק) is a complete lie.

          1. 12.2.2.1.1

            I meant that in Dec 1946 anti-genocide became jus cogens.

            In 1926 anti-slavery became jus cogens.

            1. 12.2.2.1.1.1

              It is interesting that the ban on cannibalism is never included among international legal rules that are considered jus cogens.

              1. 12.2.2.1.1.1.1

                “It is interesting that the ban on cannibalism is never included among international legal rules that are considered jus cogens.”

                Well I mean, sometimes you just have to eat another person bruh.

          2. 12.2.2.1.2

            In what sense is there still a pending case that could yield “penalties”? The Supreme Court has already denied cert. on your case. What is left?

            link to scholar.google.com

            1. 12.2.2.1.2.1

              I petitioned Supreme Court for certiorari before judgment of the Court of Appeals for the First Circuit before Judgement. I give some of my reasons in the petition itself, which may be read here.

              You can find part of the appendix on the Supreme Court docket.

              A complete copy of the petition is viewable on Pacer because I filed the petition into the Appellate case with a Notice of Parallel Filing — something one does not see often.

              One could perhaps consider every party in this case to be improvising or off-script.

              Will the Court of Appeals for the First Circuit Add Its Voice to the Legal Controversy over Social Medium Platforms?

              I have provided this Appellate Court with a stage to express its opinion.

              According to the docket, SCOTUS and Court of Appeals have communicated.

              1. 12.2.2.1.2.1.1

                Ah, got it. Thanks for the clarification.

      3. 12.2.3

        That is interesting Joachim. Maybe I will take a closer look if I have time.

        What strikes me right out, though, is there are a lot of lawyers that will take a case like this on contingency if there is a good or even fair chance of winning. But I am not sure of the merits. Sounds like it will all hinge on whether you can get the court to classify social media companies as common carriers.

        1. 12.2.3.1

          Common law Massachusetts common carriage law has coexisted with statutory federal telecommunications common carriage law since the Mann Elkins act of 1910.

          Massachusetts regulates common carriage including the end loop of voice telephone service by Massachusetts common carriage law. It seems impossible under the Constitution for the federal government to legislate Massachusetts common carriage law out of existence.

          Under the Tenth Amendment, if the US federal government declines to regulate the message common carriage,

          1. which is separate from telecommunications common carriage and

          2.which a social medium platform provides,

          the power to regulate remains with a state.

          Some may remember Telex message common carriage, which Western Union used to provide.

          Telex service used the dial-up public phone network.

          Dial-up phone service and telex message service constituted distinct forms of common carriage subject to different regulatory regimes.

        2. 12.2.3.2

          The panel for the Court of Appeals for the First Circuit was selected June 3.

          We will find out whether our case has legs in a month or so.

          The Court of Appeals for the First Circuit never bought into the “unfettered editorial discretion” of Section 230 caselaw.

      4. 12.2.4

        omg joamchim. lol, who’d have thought we have our very own anti-zionist crusader among us bros? lololol. This better not be a larp bro.

        1. 12.2.4.1

          Joachim’s anti-Zionist position (I daresay) precedes his patent law views.

          I recall coming across these things in a very early exchange with Joachim over at IPWatchdog (maybe even ten years ago now).

          That said — and knowing the emotion for him related to that aspect, I am hoping to avoid that rabbit hole and instead stick to the legal aspects at point here.

    3. 12.3

      You cannot address jurisdiction without considering the specific remedy being sought. HB20 authorizes an injunction to support enforcement, which would mean that Twitter and FB would have to move the equipment and decision-making authority out of the country. Unlike what simple commenters have suggested, this would not necessarily require exiting the US market, but it probably wouldn’t be worth it. In contrast, if HB20 permitted damages for being wrongfully blocked, Twitter and FB would probably need to exit the Texas market to avoid causing “damages” there.

      1. 12.3.1

        Twitter and FB would have to move the equipment and decision-making authority out of the country.

        Right. That is precisely the hypo that my question imagines. All the servers are in (e.g.) Canada, all the employees and management in Canada, all the intangible assets transferred to Canadian banks and Canadian holding companies, etc. The companies would continue doing business in the U.S. in the sense that their websites would remain accessible to U.S. viewers and their apps would continue running on U.S. phones, but there would not remain any physical infrastructure or personnel within the territorial jurisdiction of the U.S. or any of the 50 states.

        Is there something about that scenario that would be too impractical to work? Would it be impossible, for example, to run such a business without assets in the U.S. banking system, or some such? Is it necessary to own servers in closer physical proximity to your users than would be possible if they are all located outside the U.S. borders?

      2. 12.3.2

        [I]f HB20 permitted damages for being wrongfully blocked, Twitter and FB would probably need to exit the Texas market to avoid causing “damages” there.

        Why? Under the terms of my hypo, the TX courts would have no ability to grant an enforceable judgment against (e.g.) FB. Why should they care about a TX court awarding damages, in such an instance?

        1. 12.3.2.1

          Assuming that someone could show that they were damaged by being “wrongfully” blocked, the damage would be felt where the person was located regardless of where the decision to block was actually made. That could form the basis for personal jurisdiction for that cause of action. As for enforceability of a money judgement, that is a separate issue of international law, but I am pretty sure that Twitter and FB’s money would be in reach.

          1. 12.3.2.1.1

            That could form the basis for personal jurisdiction for that cause of action.

            Sure. Your response suggests that you are confused about what I am asking, so I will try to be more clear. I agree that—by virtue of making its services available in TX, there would be personal jurisdiction to sue FB in TX. My point is, can FB (or Twitter) set up their operations such that any TX judgment against them would be essentially unenforceable?

            As for enforceability of a money judgement, that is a separate issue of international law, but I am pretty sure that Twitter and FB’s money would be in reach.

            That is the question. Obviously, it is possible to move assets around such that they are legally unreachable by the U.S. courts (e.g., Swiss bank accounts are rather famously untouchable).

            However, maybe there is some business reason why that is not practical for an operation like FB or Twitter. That is the question that I am asking. Is it really not practical for FB or Twitter to move their assets around in a manner that they are unreachable by U.S. courts? Is it really possible (in the sense of practical and enforceable) for TX to block FB within its own borders? Etc. I do not have occasion to deal with these sorts of practicalities, and I am wondering if others around here know what is and is not practically achievable for either TX or FB/Twitter in the event that FB/Twitter were to try to put themselves outside the legal reach of TX enforcement.

  7. 11

    I think it’s worth pointing out that the Texas case doesn’t directly implicate Section 230, at least not yet. The district court did not rely on Section 230 to enjoin enforcement of HB20. It instead relied on First Amendment principles.

    But the Section 230 argument is still out there and was presented in the Texas case (and a Florida court relied on it to enjoin a similar Florida law), so even if Texas overcomes the First Amendment arguments currently on appeal, the Section 230 preemption arguments are still waiting in the wings–and they are substantial. I’ve followed this issue for years, and there’s a lot of comments below reflecting some fundamental misunderstandings and confusions of what the legal Section 230 issues in the Texas case are actually about, so hopefully this can clarify some of that.

    Don’t want to get into a debate on the wisdom of Section 230, or whether it should be abolished/amended/narrowed/broadened, just looking at the law as it stands now. It’s easy to see why there are preemption problems with the Texas law.

    Under 47 U.S.C. 230(c)(2), an interactive computer service (which includes social media companies–sorry there’s no real argument against that) cannot be liable for “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” This is the provision that everyone talks about relating to shielding ISPs, on-line services, social media companies, etc., from liability for taking down content.

    This section of Section 230 seems to conflict with the Texas law which imposes civil liability for taking down content based on “viewpoint.” Under Section 230, a social media company is shielded from liability for removing content, even based on viewpoint, if the company in “good faith” (a subjective standard) thinks the content is “otherwise objectionable.”

    The only real way out of federal preemption for Texas was to argue that the term “otherwise objectionable” in Section 230 should be narrowly interpreted to not cover differences in political viewpoint, etc. The seemingly best argument for this was the statutory construction principle of ejusdem generis (“of the same kind”), which basically says that when you have a list of specific items, a general item in that list should be interpreted more narrowly as something in the same kind or category. Under this argument, because the statute specifically mentions content that is “obscene,” “lewd,” “lascivious,” “filthy,” “excessively violent,” and “harassing,” the term “otherwise objectionable” coming at the end of that list should be interpreted as something in the same the same type or category — and removing content based on disagreement with someone’s political viewpoint, for example, falls far outside any of those categories.

    That’s basically the only substantial argument against federal preemption, and the only real argument Texas actually made against Section 230 preemption in the district court (which the court again didn’t reach). There have been failed/stalled efforts in Congress to narrow “otherwise objectionable” to things like terrorism, and to date, federal courts have generally interpreted this language broadly and haven’t accepted the ejusdem generis argument (and the Ninth Circuit in 2019 expressly rejected it, reasoning that the categories listed in the statute differed from each such that ejusdem generis shouldn’t apply). There have been a ton of articles on both sides of this argument, but ultimately, this issue will determine whether the Texas law (and others like it) are preempted by Section 230.

    So bottom line, even if Texas wins on every one of the First Amendment arguments currently on appeal that everyone loves to debate and talk about, that won’t really impact the Section 230 statutory preemption arguments that exist separately and independently. The Texas law seems, to me at least, doomed to die on federal preemption based on Section 230 without a narrow interpretation of the “otherwise objectionable” language of Section 230.

    1. 11.1

      LR,

      Your “(which includes social media companies–sorry there’s no real argument against that)“ appears to be in direct conflict with the rather technical details provided by Joachim.

      Can you flesh out your assertion a bit more? It just does not read well especially as it appears over Joachim’s technical posts.

      1. 11.1.1

        No disrespect to any other commenters, but the plain language of Section 230 is clear on this.

        47 U.S.C. 230(f)(2) provides an express definition of an “interactive computer service,” to which the content ban removal immunity that I discussed above, applies.

        That section defines “interactive computer service” as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.”

        A lot of words there, but the definition clearly includes at least an “information service” or “system” that “provides or enables computer access by multiple users to a computer server.” No court has held that the definition is limited by the specific examples at the end.

        That definition describes pretty much any interactive service or website, because they are all based on “multiple users” accessing at least one “server.” That certainly describes social media sites, since user information, posts, messages, etc., are invariably stored on the social media company’s server somewhere. (The statute, by the way, doesn’t even require that an interactive services company actually own the server; if the company even “enables” access to the server, it’s covered, so it doesn’t lose immunity under Section 230 if it hosts its data using Amazon Web Services or some other third party/cloud hosting service.)

        The argument that the statute was somehow intended to cover “obsolete” technology just doesn’t fly. The express Congressional “findings” laid out in Section 230(a) refer to the “rapidly developing array of Internet and other interactive computer services available to individual Americans,” and when Congress passed Section 230 in 1996, it was well-aware of the Web and interactive sites like Yahoo! and America Online (AOL) that were already established and collectively had millions of users.

        In fact, some of the earliest cases involving Section 230 from shortly after the enactment in 1996 involved interactive services like America Online (AOL) that aren’t materially different, in terms of the application of the interactive computer services definition, from modern social networks.

        You can scour every case out there about Section 230 going back to 1996, and you’ll be hard pressed to find anyone who raised a substantial dispute about the “interactive computer service” definition. The state in the Texas case didn’t dispute that social media companies were covered.

        1. 11.1.1.1

          Count filtered….

          Your comment is awaiting moderation.

          June 3, 2022 at 4:46 pm

          I grant that the technical issues — so far — have NOT been covered – but this does not mean that those disappear or may not be raised – very much in line with what Joachim provides.

          The point that I was making was that you came out with a statement that just falls apart GIVEN what Joachim had just provided prior to your statement.

          In juxtaposition, your position then is far less compelling, eh?

          1. 11.1.1.1.1

            After further rumination, I would be interested in Joachim’s response to your “this was meant to be open-ended”** view.

            ** especially given that Joachim appeals to patent types for a “metes and bounds” evaluation, and upon that consideration, a patent-view IS amenable to the “open-ended” view as clearly we expect technology to continue to change.

            Joachim — your rebuttal…?

            1. 11.1.1.1.1.1

              I’d like to hear an explanation from him, or you, or anyone else, how a social media company is not an “interactive computer service” within the meaning of Section 230(f)(2). How is such a company not at least an “information service” that “provides or enables computer access by multiple users to a computer server?” The suggestion that Section 230(f)(2) is limited to just libraries, educational institutions, and ISPs is frivolous.

              I appreciate that Joachim and others truly wish there were solid arguments for getting around Section 230, but his technological arguments (which are historically wrong anyway) don’t really matter because they cannot change the plain and unambiguous language of the statute.

              1. 11.1.1.1.1.1.1

                It is a fantasy to believe that it is easy to understand the definition of an Interactive Computer Service in Section 230. Nothing about the definition is plain. Yet after parsing the grammar and syntax, one can determine what Congress meant by the phrase Interactive Computer Service.

                I go through parsing the syntax and grammar in a Quora post entitled What is an Interactive Computer Service?? Unfortunately, I could not get the right indentation in the PatentlyO comment text box. I will respond to a comment either here or on Quora.

                Because SCOTUS pays attention to the grammar and syntax of a statute, Congress made a statutory change in 1991 to remove a lacuna in 42 U.S. Code § 1981 – Equal rights under the law.

                See Patterson v. McLean Credit Union, 491 U.S. 164, 109 S. Ct. 2363 (1989).

              2. 11.1.1.1.1.1.2

                LR, I need to read up on this. But isn’t Joachim’s argument different. Isn’t he saying that –or it could be said–that not only is FB an interactive service but that the common carrier statutes still apply to FB.

                230 only means that they can’t be sued for the content of others’ content, but this doesn’t address whether they can be sued under another statute for denial of service.

                Also, LR is right that by 1996 there were sites like FB and Twitter. Network news was probably most like FB and Twitter in that defamation was already a huge problem in 1996 where anonymous users were defaming people with a large number of posts over a period of time.

    2. 11.2

      Thanks for that clarifying explanation. So am I correct in understanding you to say that—in order to prevail—Paxton has to establish that 47 U.S.C. §230(c) is unconstitutional?

      1. 11.2.1

        Texas could also win the preemption argument if it convinces a federal court to interpret Section 230(c) narrowly to avoid the conflict with the state law, as mentioned. But if that fails, yeah, Texas would have to argue that Section 230(c) is unconstitutional (an exceedingly unlikely outcome).

        1. 11.2.1.1

          LR, I need to read more about this.

          But, I can see how 230 would be held to be unconstitutional. It goes right to one of the most important freedoms of speech.

          And it is strange. It is essentially saying that other people can say whatever they want about you and the people facilitating that aren’t libel despite the fact that they may monitor all posts and delete other posts that are defamatory against a competitor of yours.

          My guess is that the Scotus would hear arguments that 230 is unconstitutional when it is coupled with active biased content curation.

      2. 11.2.2

        In my litigation I directly attack the caselaw, which is based on <a href="link to casetext.com;Zeran v. America Online, 129 F.3d 327 (4th Cir. 1997) because the Zeran Appellate Court unlike the District Court wrote the inverse fallacy (denial of the antecedent) into its decision.

        The inverse fallacy is a weed in the legal lawn and must be pulled out whenever it appears. It always comes back.

        Logical Fallacy

        The simple statement of the inverse fallacy is the following.

        (p → q)
        ∴ (q → p)

        The above form is sometimes called affirmation of the consequent.
        Zeran applied the inverse fallacy in contrapositive form.

        (p → q)
        ∴ (¬p → ¬q)

        In this form the inverse fallacy is sometimes called denial of the antecedent.

        In the Zeran appellate decision,

        1. p represents “a social medium ICS is accused of defamation or of a similar act”,
        2. ¬p represents “a social medium ICS is not accused of defamation or of a similar act”,
        3. q represents “a social medium ICS is not a publisher”, and
        4. ¬q represents “a social medium ICS is a publisher”.

        The decision assumes the following principles with respect to publisher liability and editorial discretion.

        1. A non-publisher has no liability and no unfettered editorial discretion.
        2. A publisher has liability and unfettered editorial discretion.

        The Zeran decision court combines the inverse fallacy with 47 U.S. Code § 230 (c)(1) to yield the following.

        1. If a social medium ICS is accused of defamation or of a similar act, the social medium ICS has no publisher’s liability [for libel or slander, which is present in third party content].
        2. If a social medium ICS is not accused of defamation or of a similar act, the social medium ICS has a publisher’s unfettered editorial discretion [to remove a user or his content].

        The above fallacious interpretation of a clause within a statute is not judicial but is ideological and seems to be a covert possibly unconscious attempt unjustifiably to inject net neutrality into the federal statute even though Congress never legislated net neutrality into this statute. If the federal judiciary interprets the law on the basis of the inverse fallacy, the federal judiciary violates the U.S. Constitution Article I Section I by legislating and teaches the public that the inverse fallacy is a reasonable basis of law.

        1. 11.2.2.1

          If the federal judiciary interprets the law on the basis of the inverse fallacy, the federal judiciary violates the U.S. Constitution Article I Section I by legislating…

          That is… not how this works. Ours is a common law justice system, not a civil law system. That makes a difference.

    3. 11.3

      Great post. Thanks for taking the time.

  8. 10

    Sorry again, I put this comment in the wrong place.

    I apologize.

    I am unable to express something concisely in 10 words when I can use 200 words.

    I should be more precise.

    47 U.S. Code § 230 is a statute, which is tied to 1996 technology. Patent prosecutors and patent litigators may be best at understanding its meaning.

    1. 10.1

      BTW, Samuel Clemens obtained a patent to an invention.

      Probably, everyone that reads this blog is aware of the Clemens patent.

      I am unable to resist stating well-known facts.

      My kids complain all the time.

  9. 9

    What is an Interactive Computer Service?

    The phrase Interactive Computer Service (ICS) of 47 U.S. Code § 230 refers to a technology that is obsolete and is no longer used. Back in the middle 90s, we also called an ICS an “Internet On-Ramp” or an “Internet Portal”. An ICS is a system that exists at the edge of the Internet/WWW and is mostly outside the Internet/WWW.

    An ICS could also be a Net On-Ramp or Net Portal to a distributed system like USENET, BITNET, or one of a number of public distributed systems that have been forgotten or have been completely integrated into the Internet.

    Unlike the Internet, which is massively state-supported mostly by the US federal government, On-Ramp and Portal systems were private systems, which received no state support.

    Common Carrier Holding of the Opinion of the Court of Appeals of the Eleventh Circuit in Netchoice v. Florida

    Quite the contrary, if social-media platforms currently possess the First Amendment right to exercise editorial judgment, as we hold it is substantially likely they do, then any law infringing that right—even one bearing the terminology of “common carri[age]”—should be assessed under the same standards that apply to other laws burdening First-Amendment-protected activity.

    Here is the passage from the Netchoice v. Florida, p. 43, which is in the image above.

    Finally, Congress has distinguished internet companies from common carriers. The Telecommunications Act of 1996 explicitly differentiates “interactive computer services”—like social-media platforms—from “common carriers or telecommunications services.” See, e.g., 47 U.S.C. § 223(e)(6) (“Nothing in this section shall be construed to treat interactive computer services as common carriers or telecommunications carriers.”). And the Act goes on to provide protections for internet companies that are inconsistent with the traditional common-carrier obligation of indiscriminate service. In particular, it explicitly protects internet companies’ ability to restrict access to a plethora of material that they might consider “objectionable.” Id. § 230(c)(2)(A). Federal law’s recognition and protection of social-media platforms’ ability to discriminate among messages—disseminating some but not others—is strong evidence that they are not common carriers with diminished First Amendment rights.

    It’s worthwhile to read Stratton Oakmont, Inc. v. Prodigy Servs., undefined (N.Y. Sup. Ct. May. 24, 1995). It mentions the Web but not the Internet because in 1996 the vast majority of people did not have a local home network and a DSL/FIBER/Cable modem router to connect to the Internet. An Internet On-Ramp in 1996 would provide access to Internet website but was limited in the other Internet access that was provided. In 1991 a case like Cubby, Inc. v. Compuserve Inc., 776 F. Supp. 135 (S.D.N.Y. 1991) mentions neither the Internet nor the Web.

    A home user did not access the Internet directly. People accessed the Internet through an Interactive Computer Service like AOL, Prodigy, or CompuServe. These Interactive Computer Services were constructed outside the Internet and predate the World Wide Web. They were electronic black boards on steroids and offered online or distributed gaming. Around 1995 these Interactive Computer Services turned into portals to Internet. They began to be called Internet On-Ramps. Later they were all completely integrated into the Internet, and ICSs/Internet On-Ramps ceased to exist, but in 1996, not one was comparable to an Internet social medium platform like Twitter, Facebook, LinkedIn, Quora, etc. Internet On-Ramps were specifically exempted from federal telecommunications common carrier law because the FCC really does not know how to regulate the “local loop” so to speak.

    One should be able to argue strongly that a social medium platform of 2021-2 is not an ICS of 1996 and that § 230 does not apply to a social medium platform. (Or so I believe. IANAL.)

    Because Net On-Ramps/Interactive Computer Services don’t really exist any more, these clauses of the relevant statutes are somewhat opaque and probably obsolete.

    47 U.S.C. § 223(e)(6)

    The Commission may describe measures which are reasonable, effective, and appropriate to restrict access to prohibited communications under subsection (d). Nothing in this section authorizes the Commission to enforce, or is intended to provide the Commission with the authority to approve, sanction, or permit, the use of such measures. The Commission shall have no enforcement authority over the failure to utilize such measures. The Commission shall not endorse specific products relating to such measures. The use of such measures shall be admitted as evidence of good faith efforts for purposes of paragraph (5) in any action arising under subsection (d). Nothing in this section shall be construed to treat interactive computer services as common carriers or telecommunications carriers.

    47 U.S. Code § 230 (f)(2)

    Interactive computer service
    The term “interactive computer service” means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.

    1. 9.1

      So What was a 1996 § 230 Access Software Provider

      This case, which is entitled G.G. v. Salesforce.com, Inc., 2022 WL 1541408 (N.D. Ill. May 16, 2022), is dumbfounding.

      My company consulted for AOL in 1996. At the time AOL provided an Interactive Computer Service because it was a dial-up Internet On-Ramp. We also consulted for Aurora Technologies, which manufactured Access Control Software and licensed the software to a system integrator that worked with an Internet On-Ramp for a library or or for a school.

      The System Integrator/Access Control Provider set up a (usually headless) server at the school or library. The server either connected to the Internet On-Ramp by dial-up or by leased line. Client software was installed on a number of PCs that connected to the server by serial lines, by Ethernet, Token Ring, or by Arcnet.

      47 U.S. Code § 223 (e) Defenses (6) indicates that Congress put an ICS or an Access Control Provider at least in some situations into the category of a user of a dial-up phone line.

      I don’t see how either Salesforce or a 2022 social medium platform meets either the definition of a 1996 ICS or the definition of a 1996 Access Software Provider as ICS and Access Software Provider are defined in 47 U.S. Code § 230.

      To a 1996 user of an ICS or an Access Software Provider, the definitions of these two entities is perfectly clear. A Court struggles with the definitions in 2022 because the technology is obsolete, and everyone has forgotten what these definitions mean. § 230 is equally obsolete and should be ignored by the Courts until Congress writes a enacts a new statute.

      Here is § 230 (f)(2).

      Interactive computer service

      The term “interactive computer service” means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.

      Here is § 230 (f)(4).

      Access software provider

      The term “access software provider” means a provider of software (including client or server software), or enabling tools that do any one or more of the following:
      (A)filter, screen, allow, or disallow content;
      (B)pick, choose, analyze, or digest content; or
      (C)transmit, receive, display, forward, cache, search, subset, organize, reorganize, or translate content.

      47 U.S. Code § 223 (e) Defenses (6) tells us that to Congress and ICS could be a dial-up service.

      (6)The Commission may describe measures which are reasonable, effective, and appropriate to restrict access to prohibited communications under subsection (d). Nothing in this section authorizes the Commission to enforce, or is intended to provide the Commission with the authority to approve, sanction, or permit, the use of such measures. The Commission shall have no enforcement authority over the failure to utilize such measures. The Commission shall not endorse specific products relating to such measures. The use of such measures shall be admitted as evidence of good faith efforts for purposes of paragraph (5) in any action arising under subsection (d). Nothing in this section shall be construed to treat interactive computer services as common carriers or telecommunications carriers.

      1. 9.1.1

        This is interesting. I think that FB and Twitter are common carriers.

  10. 8

    Social media companies have section 230 to protect them. I suspect the answer is to tie in 230 with their editing of content. I don’t see how Twitter could ban Hunter Biden’s laptop tweets and still claim to be just a place where others can post. They clearly become a publisher at that point and should be liable for defamation to all content.

    So there is an interplay between the First Amendment and Section 230. Plus, there is the issue of monopolies because the large social media platforms gain power with more people so that, in reality, there are only going to be a few. Plus people don’t have time for more than a few.

    In my opinion, the solution is to say if you delete content that is not illegal, then no Section 230 protection for you.

    1. 8.1

      However, the solution for the social media companies is to provide filters to people. You want PG and not R content, then there is a filter for that. You want to only read D and not R tripe, then there is a filter for that. But you have to select the filter and opt in to the filter.

    2. 8.2

      In fact, my guess is there is a lawsuit for defamation there. That maybe the Scotus would entertain a lawsuit for defamation against Twitter based on an argument that Section 230 is unconstitutional as it strips the individual of their rights to recourse for defamation under the false pretext that Twitter is not a publisher and responsible for their content.

    3. 8.3

      [T]he solution is to say if you delete content that is not illegal, then no Section 230 protection for you.

      Solution to what? What problem do you mean to “solve” here?

      1. 8.3.1

        Wow – is that a serious question, Greg?

        1. 8.3.1.1

          +1

          1. 8.3.1.1.1

            This:

            link to open.spotify.com

            This is something that every Liberal Left regular here needs to listen to.

            The classic gaslighting being attempted (issue? What issue?) is covered in a rather humorous manner, with the benefit of the person supplying the humor is another person from the (traditional) Left.

            1. 8.3.1.1.1.1

              STILL This ^^^

      2. 8.3.2

        The problem is “corporations are doing things that I don’t like.”

    4. 8.4

      Social media companies… [that] ban Hunter Biden’s laptop tweets… clearly become a publisher at that point and should be liable for defamation to all content.

      Why? What socially useful function is served by opening Twitter to defamation liability when @nvtjob223689 says something colorfully untrue about @nitw!t663920?

      1. 8.4.1

        Greg I think you know that isn’t the problem.

        1. 8.4.1.1

          Good. We agree that slander between two users of Twitter is a matter as between those two users, and should not involve Twitter. Why, then, do you want to make Twitter liable?

          1. 8.4.1.1.1

            If Twitter is going to delete stories about Hunter’s laptop, then Twitter should be responsible as a publisher of defamatory statements.

            1. 8.4.1.1.1.1

              Why? That was the question in 8.4, but you never answered it. We are just walking in a circle of unsubstantiated assertion.

              1. 8.4.1.1.1.1.1

                You are trying to reason with a demented old coot who is filling his drawers over “Hunter Bidens laptop”. Before that he compared critics of software parenting to Islamic terrorists. And everyone who disagrees with him is “paid to post here.”

                What do you expect to achieve here?

              2. 8.4.1.1.1.1.2

                Actually, because Greg why should Twitter be immune from being a publisher while at the same time be permitted to get the content to suit their ideology?

                230 was created with presumption that the content that was published was too numerous to be examined. That the host site was merely providing a service for people to exchange information.

                That is not true of Twitter and FB. They have political agendas and are exercising their political agendas.

                Either they should stop deleting content based on their biases or 230 should not apply. That simple.

              3. 8.4.1.1.1.1.3

                Greg’s allusion back to the post at 8.4 indicates but a single question.

                The “logic” then (of Greg) is that the entire Hunter Biden laptop issue is nothing more than why open Big Tech to any type of liability when a party (ESSENTIALLY ANY PARTY) “ says something colorfully untrue

                Greg misses the point, misses the context, and appears to be purposefully obtuse.

                That this type of obtuseness is celebrated – and notably, done so by ONLY regular posters known for their Far Left bent is in and of itself an incrimination.

                Further yet, Greg pretends that his question has never been answered – and that any purported answer is only “unsubstantiated assertion

                Newsflash for Greg: the view that the Hunter Biden issue is somehow only unsubstantiated assertion” is simply untenable.

                1. “ Greg misses the point, misses the context, and appears to be purposefully obtuse.”

                  So says the insufferable hypocrite who has done this habitually here for 10+ years.

                2. Now That is some serious
                  A
                  O
                  O
                  T
                  W
                  M
                  D.

                  You are the one that is always on the run from cogent points put on the table of discussion.

                  In the present case, exactly what point, what context have I missed? How exactly have I been obtuse? To what have I have been obtuse to?

                  You won’t provide ANY cogent answers to these questions because you cannot.

  11. 7

    “It is not at all obvious how our existing precedents, which predate the age of the internet, should apply to large social media companies.”

    They seem to be doing this (ignoring precedent) with everything. Roe, Shinn v. Martinez Ramirez…

    1. 7.1

      Well, the goal is to roll back time to that glorious pre-Civil War era when we didn’t have “all these problems” as Grand Wizard Trent Lott once said. Womenfolk, brown people and heathens knew their place and lived in morbid fear of offending their betters, as the holy one intended.

      1. 7.1.1

        Ah yes, the fallacy of the one from the Sprint Left crowd….

        Or was that the “Push the Central Figure down and whine how ‘Far Right’ that Central Figure is” crowd…?

        1. 7.1.1.1

          As everyone here knows perfectly well, Billy, I haven’t sprinted anywhere. But I did explain to everyone what the Re pu k-k-k-e Party stands for and where they were headed. It was obvious to quote a few of us for a long time. But you just keep pretending otherwise, Billy. Nobody can see through your little glibertarian frock as far as you know.

          1. 7.1.1.1.1

            As everyone here knows perfectly well, Billy, I haven’t sprinted anywhere.

            So then, you are of the “push down the Central Figure and whine” meme.

            Yeah, that’s easy to see with your infamous One-Bucket mentality.

  12. 6

    Can somebody explain concisely whether there are any constraints on the Constitutional right of free speech in relation to that Shakespearian rabble-rouser who urged the adoring crowds that: “The first thing we do, k111 all the lawyers.”

    First, scenario, when addressing adoring and whipped-up crowds on the steps of the Congress building.

    Second scenario, he says it to a million followers on social media.

    1. 6.1

      The “Yelling FIRE in a crowded theatre” is not the context of this present issue.

      1. 6.2.1

        Thanks for the link, Joachim. Is the entire content of social media to be seen then as legitimate advocacy. Are we seriously to accept that there is no problem, that nothing on social media ever rises to the level of illegitimate incitement to action.

        1. 6.2.1.1

          Are we seriously to accept that there is no problem, that nothing on social media ever rises to the level of illegitimate incitement to action.

          Do you see how controlling law for imminent danger (or incitement) could be reached?

          Do you always preface questions that you WANT a certain answer to with “seriously” (seeing how UN serious your chuck feces at the wall to see what sticks motif is)?

  13. 5

    Technology not explicitly mentioned in the U.S. Constitution must be prohibited (just like the Right to Privacy/Abortion).

    Exceptions may only be made if the technology is mentioned in the Christian Bible.

    Fortunately, the automobile *is* mentioned in the Bible.

    “And G-d drove Adam and Eve out of the Garden of Eden in a Fury.”

    1. 5.1

      Lol,

      I had glossed over this (apparently several times), but NOIP, you couldn’t be more wrong — in both directions.

      Are you one of those that simply lose all cognitive ability when a Liberal Left notion comes into view?

  14. 4

    Off topic, but related to last week’s Arthrex decision, the PTO recently filed a brief in Centripetal Networks v. Palo Alto Networks (2:21-cv-00137, E.D. Va.) to argue that review by the director applies only to final written decisions. That is to say, a party dissatisfied with a denial of institution does not get to petition for review by the director.

  15. 3

    Justice Alito’s opinion identifies the first amendment issues at stake here to be important and novel. “It is not at all obvious how our existing precedents, which predate the age of the internet, should apply to large social media companies.”

    Talk about making the analysis more complicated than it needs to be. What, exactly, is the relevant consideration about “large social media companies” that should change the outcome here from previous precedents?

    1. 3.1

      Imagine a different scenario for a moment. Assume that all of the telephone companies began cutting-off users and particular conversations based upon legal but disfavored speech within individual phone calls (or barring folks who spoke publicly on certain disfavored issues). Are you OK with the stepping in to force common carrier rules on the phone companies?

      Social media is a different situation, but is it different enough that the US Constitution now steps-in to prevent any governmental oversight?

      1. 3.1.1

        Are you OK with the stepping in to force common carrier rules on the phone companies?

        Yes, precisely because phone service has long run as a regulated set of local monopolies, it makes sense to force common carrier rules on the phone companies. This is quite distinct from social media, which is much more akin to a club or a newletter (or a hybrid of both).

        1. 3.1.1.1

          Like most of us, not my particular area of expertise. But, IIRC, SCOTUS has already extended “viewpoint neutral” obligations beyond regulated monopolies e.g., to purely private shopping centers.

          The bigger issue here probably is how Section 230 affects those precedents.

          1. 3.1.1.1.1

            Yes, OC – Section 230 is very much implicated.

          2. 3.1.1.1.2

            The bigger issue here probably is how Section 230 affects those precedents.

            There may be an issue about whether Section 230 is unconstitutional under the first amendment. This is not that case.

            I’m calling it now that that is how the court will come down on this issue – It will be 8-1ish in favor of striking most if not all of the law, and there will be conservative concurrences essentially directing platform users to raise a first amendment issue against 230. Thomas will be the lone dissent asserting a “this writer has a lack of integrity” theory.

            1. 3.1.1.1.2.1

              There may be an issue about whether Section 230 is unconstitutional under the first amendment. This is not that case.

              Indeed not. If §230 were held unconstitutional, that would not get Paxton one iota closer to sustaining the TX law.

              I am hard pressed, however, to see the argument for §230 being unconstitutional. Section 230 does not regulate speech at all—permissibly or impermissibly. What is the putative constitutional defect with §230?

              1. 3.1.1.1.2.1.1

                I am hard pressed, however, to see the argument for §230 being unconstitutional. Section 230 does not regulate speech at all—permissibly or impermissibly. What is the putative constitutional defect with §230?

                I am not saying I’m sure that 230 is unconstitutional, I am saying the conservative side has a valid argument. Providing John with legal immunity for expressing their opinion and not providing Alice with the same immunity may be speaker discrimination that violates the first amendment.

                Traditionally first amendment law has distinguished between distributors who were not liable for content and publishers who were. Stratton Oakmont upset that by finding that Prodigy was a publisher. The correct way to resolve the issue was to find that Prodigy failed to do enough editorializing in the specific context of those internet forums to be considered a publisher and therefore remained a distributor – i.e. you had the right dial you just had to shift the threshold bar. Instead, Congress wrote a law that contemplated that good faith editorialization to remove “objectionable” content could not be publication *no matter how extensive that it was*. That’s obviously not true – its entirely possible to express oneself without creating any content oneself.

                If Facebook were to go around deleting all the truthful statements about Sandy Hook and only publishing what Alex Jones and people like him said, I see no reason that liability should attach only to Jones when Facebook pursued a policy of amplifying his viewpoint to the detriment of other viewpoints. Yet Jones is protected under a negligence standard (or an absence of malice standard on certain issues) while facebook is protected under a “good faith” “objectionable content” standard. Section 2a obviously departs from standard first amendment protections (that’s the whole point of it existing!) and it favors one specific type of speaker expression over others. That could be viewed as speaker-based discrimination that triggers strict scrutiny.

                The only place where conservatives break with reality is that the truth is that larger social media companies have so far generally used their power appropriately – they spend large sums of money to employ independent fact checkers who make decisions on removal of content. They mostly perform distribution, and to the extent they express themselves they do so within the bounds of traditional (i.e. non-internet) first amendment protection. They are not negligent in the editorializing they choose to engage in. In other words – 230 is only shielding facebook from harassing lawsuits that Facebook would win anyway, so conservatives wouldn’t “win” by repealing 230 in the way they think they would. (Repealing 230 would be far more dangerous to Parler than Facebook for example) But that’s not the point. If facebook started to misbehave it should be forced to defend with traditional first amendment standards of protection, not heightened ones made just for it’s benefit.

                That being said, the law obviously could not tenably go forward with Stratton Oakmont’s standard. Even facebook lacks the resources to immediately judge and remediate all issues that would be brought to their attention. It shouldn’t be that Facebook gets punished for responsible editorialization in one area merely because it lacks the resources to responsibly editorialize in another area. And by the reverse token, it should not be that Parler could have explicit information brought to their attention and yet they escape liability by calling themselves a distributor. 230 is square peg being fit to a round hole, and a blunt instrument to boot.

                The court is in a pickle with that, because it can only choose to invalidate 230, not craft a workable solution. They run the risk of breaking the internet, but this bench has not shown itself to be particularly concerned with either past precedent or future consequences when they have decided that they know best. The bench is arrogant and particularly interested in setting to work on freedom of speech issues.

                There is no workable way to allow HB20 to stand, but the conservatives could move in that direction by invalidating 230. That’s why you see Alito taking this chance to opine on this “novel” first amendment issue when there is clearly analogous precedent and the case will even more likely be resolved on preemption anyway.

              2. 3.1.1.1.2.1.2

                I argue above that Section 230 is obsolete and does not apply to social medium platform technology — yes, the litigation Martillo v. Twitter is wending its way through the federal courts. I am a wild an crazy guy, but mine is the first case, in which someone that actually understands the technology has participated. My case has been submitted to a panel of the Court of Appeals for the First Circuit.

                1. “ mine is the first case, in which someone that actually understands the technology has participated”

                  Get over yourself, Joachim. Your narcissism is enough to make a Kardashian gag.

                2. I have less concern with any purported narcissism, and more concern that the (quite obviously deeply personal) religious overtones take the on-point discussion down a rabbit hole.

                  Upwards, LR disagreed with Joachim’s technical view (even as LR advanced that the breadth of interpretation of the legislation must still be wider regardless of any of Joachim’s technical position).

                  Would love to see that discussion point further developed.

      2. 3.1.2

        I would suggest that the social media scenario is worse than the hypo about telephone companies. Much, much worse. On a telephone you can only talk to one person at a time. On social media, you can talk to millions (see, e.g., New York Post Hunter Biden Laptop Story). And here, the Biden administration is actively (both publicly and privately, probably mostly privately) encouraging social media companies to censor political views that are not flattering to the administration.

        1. 3.1.2.1

          The Biden administration is so drunk with power that they actually made a “disinformation Board” headed up by a hyper-partisan disinformation super-spreader (“Scary Poppins”). The backlash was severe enough that Scary Poppins is in hiding or quit. Yeah, I get it, the First Amendment doesn’t apply to non-state actors. However, the Biden government is using social media to do their censorship for them. Everyone knows that this is the case.

          1. 3.1.2.1.1

            Ah, nobody could have predicted that another clue-seeking commenter here was a rightwing faux-news huffing snail.

            Funny stuff.

            1. 3.1.2.1.1.1

              You are aware that Litig8tor does NOT fit into your usual “one-bucket,” eh Malcolm?

              Heck Litig8tor and I almost NEVER agree on anything.

        2. 3.1.2.2

          On social media, you can talk to millions…

          Right, just as you can talk to millions on a call-in radio show, or a letter to the editor at a wide circulation newspaper. How is this so novel a feature of the case as to justify the assertion that it is “not at all obvious how our existing precedents, which predate the age of the internet, should apply”?

          1. 3.1.2.2.1

            Maybe his actual thought was “not at all obvious how our existing precedents tenets of American Talibanism, which predate the age of the internet, should apply”?

            But he will figure it out. When he does, it will favor the powerful over the powerless, if you are the betting kind.

            1. 3.1.2.2.1.2

              it will favor the powerful over the powerless

              Or, in relative terms, those (currently) in power.

              Note below how Wt attempts to make this about President 45 when the CURRENT POWER (and context of the present issue) is about President 46.

              While not the Musk Sprinting Left meme, Wt’s posts remind me of another meme in which a central stick figure calls out facts that the Left stick figure does not like, is pushed down by the Left stick figure, and then the Left stick figure whines that the central stick figure is “Far Right.”

        3. 3.1.2.3

          I would suggest that the social media scenario is worse than the hypo about telephone companies. Much, much worse. On a telephone you can only talk to one person at a time. On social media, you can talk to millions (see, e.g., New York Post Hunter Biden Laptop Story). And here, the Biden administration is actively (both publicly and privately, probably mostly privately) encouraging social media companies to censor political views that are not flattering to the administration.

          Under the topic of much, much worse: Now consider the reality that said ‘social media company’ is also provisioning fake AI powered accounts (bots) that promote a particular viewpoint (for example, the contents of Hunter’s laptop is a Russian government plot to plant false information, so dismiss it) that it would appear is well outside any 230 protections. Indeed, so far as I can tell, section 230 was never contemplated to provide immunity to the provisioning of bots to create a false impressions of social consensus, i.e., everyone believes its a Russian plot.

          1. 3.1.2.3.1

            [T]he Biden administration is actively… encouraging social media companies to censor political views that are not flattering to the administration.

            The Biden administration is not having a lot of success in this respect. The top 10 performing posts on FB in the last 24 hours were:

            1. Franklin Graham
            2. PureWow Entertainment
            3. People Royals
            4. Ben Shapiro
            5. Fox News
            6. Marie Claire
            7. Fox News
            8. Town & Country
            9. Ben Shapiro
            10. Town & Country

            In other words, of the top 10, 5 are conservative media outlets and personalities, and the other 5 are lifestyle/celebrity fluff. Liberal media outlets and personalities do not make a single appearance.

            Which of those top 10 entries do you imagine are the most flattering to Biden’s administration? The idea that conservative ideas are “censored” on social media is objectively crazy.

      3. 3.1.3

        In any event, phone companies are old, just as clubs and newsletters are old. One way or the other, there is nothing here that is not adequately settled by consulting the right body of precedent. Justice Alito’s intimation that the Court might be breaking new ground by considering “large social media companies” remains unconvincing.

      4. 3.1.4

        “ Are you OK with the stepping in to force common carrier rules on the phone companies?”

        That would depend on the rules in question. Banning unrelenting spam solicitors and robot callers from using the phone services sounds like a great idea. Banning users who are known to be genocidal white supremacists and who use the phone service as a microphone to promote those views also seems like a great idea.

        But I’m sure Dennis you have some deep thoughts about why it’s soooo important for those types of entities to have unlimited access to phone service. Share those thoughts with everyone! I bet they are really nuanced and “clever.”

        1. 3.1.4.1

          Rules for Thee Not Me… (so typical of the Liberal Left)

          How about:

          Banning users who are known to be genocidal [Woke Radical Leftists — whose ‘cause’ caused FAR MORE genocide over the last 120 years] and who use the phone service as a microphone to promote those views also seems like a great idea.

          Note: I would NOT agree with either.

          1. 3.1.4.1.1

            “Derp both sides derp!”

            Keep humping Elon, Billy. He loves you. He really does. Until the next billionaire comes along and then you can hump that one. Freedom!

            1. 3.1.4.1.1.1

              As usual, your se xu a1 innuendo response is entirely meaningless.

              1. 3.1.4.1.1.1.1

                “ your se xu a1 innuendo response is entirely meaningless.”

                But lovingly repeating the inane tweets of a billionaire con man and serial liar is the height of serious discourse. Sure, Billy!

                1. Your reply – again – is meaningless as all that you do is attempt to “defend” the indefensible with only more baseless insults.

                  Is there a particular point in what I have said that you have a cogent disagreement with? Something other than an emotional outburst?

                  I didn’t think so.

      5. 3.1.5

        Are you OK with the stepping in to force common carrier rules on the phone companies?
        Isn’t a phone company already a common carrier pursuant to the Communications Act of 1934?

      6. 3.1.6

        There are a few key features that distinguish the phone company or other common carriers from a social media platform, but perhaps the most important is that the content or product being conveyed is not realistically attributed to the common carrier, but to the caller/shipper.

        On the other hand, social media platforms embrace, to a degree, the content being conveyed, namely by positioning it alongside advertising. Curation of content becomes necessary, because social media’s actual customers – advertisers – will become concerned that their association with a platform that permits offensive speech is a poor reflection on them.

        But nobody realistically blames Verizon for that urgent message about your expiring auto warranty – or those unseemly political robocalls that verge on defaming the opposition. Verizon also doesn’t sell advertising as part of those phone calls.

  16. 2

    “It is not at all obvious how our existing precedents, which predate the age of the internet, should apply to large social media companies.”

    I remember the lawsuit when Walter Cronkite refused to read everybody’s letters on the air every night.

    In any case, Alito will find his non-obvious answer in the published diaries of Hezekiah Clupperfield, the favorite philosopher of John Hancock and also the author of How to Whip a Woman Without Mercy.

  17. 1

    It’s always a bit jarring that “platform” providers have an “editorial” position/message.

    1. 1.1

      The one Amici (that Wt, IIRC) suggests to read would argue that ALL platforms have editorial positions/messages (the argument ruins its own position with such a strong view).

    2. 1.2

      It’s not “jarring” unless you are some sort of entitled orifice. People have been kicked off social groups (social “media” is just branding baloney) since forever when the people who run the groups get tired of them.

      Here’s another thought: grow up and join a different platform.

      1. 1.2.1

        Your grasp of the situation is — as usual — underwhelming, Malcolm.

    3. 1.3

      It’s always a bit jarring that “platform” providers have an “editorial” position/message.

      Is it? I think that we have all come to be basically copacetic with the idea that FOX or the WSJ are going to advance a fairly right-wing editorial stance. Similarly, we all expect that the NYT or the WaPO will generally advance a fairly bien pensant liberal editorial position. These are longstanding traditions by now. Anyone who is “jarred” by this has not been paying attention.

      1. 1.3.1

        I wouldn’t call FOX or WSJ “platforms.”

        FWIW, I think we have all basically copacetic with the idea that publishers have editorial stances. However, I don’t think that’s generally accepted wrt corporations writ large can have editorial viewpoints (e.g., the controversy surrounding the Hobby Lobby SCOTUS decision, the Citizens United SCOTUS decision, Disney/grooming boycotts, etc.). It’s even more controversial wrt to companies given the unique legal privileges created by Section 230.

        1. 1.3.1.1

          I don’t think that’s generally accepted wrt corporations writ large can have editorial viewpoint
          See Coral Ridge Ministries Media, Inc. v. Amazon.com, Inc., 6 F.4th 1247, 1254 (11th Cir. 2021). I ran across this while reading the 11th Circuit’s takedown of Florida’s version of HB20. In this case, Amazon excluded Coral Ridge (“a Christian ministry and media organization”) from its charitable-giving program — on the basis of the Southern Poverty Law Center’s designation of that group as being a “hate group.” The Court held that excluding Coral Ridge was expressive conduct and that this was permitted under the 1st Amendment.

          This is a quote from the 11th Circuit decision regarding Florida’s law:
          Whether we assess social-media platforms’ content-moderation activities against the Miami Herald line of cases or against our
          own decisions explaining what constitutes expressive conduct, the
          result is the same: Social-media platforms exercise editorial judgment that is inherently expressive. When platforms choose to remove users or posts, deprioritize content in viewers’ feeds or
          search results, or sanction breaches of their community standards,
          they engage in First-Amendment-protected activity.

          Here is another quote:
          Separately, but similarly, platforms’ content-moderation activities qualify as First-Amendment-protected expressive conduct
          under Coral Ridge and FLFNB I. A reasonable person would likely
          infer “some sort of message” from, say, Facebook removing hate
          speech or Twitter banning a politician. Indeed, unless posts and
          users are removed randomly, those sorts of actions necessarily convey some sort of message—most obviously, the platforms’ disagreement with or disapproval of certain content, viewpoints, or users. Here, for instance, the driving force behind S.B. 7072 seems to
          have been a perception (right or wrong) that some platforms’
          content-moderation decisions reflected a “leftist” bias against “conservative” views—which, for better or worse, surely counts as expressing a message. That observers perceive bias in platforms’ content-moderation decisions is compelling evidence that those decisions are indeed expressive.

          1. 1.3.1.1.1

            The problem – of course – is the intersection of such with the benefits of Section 230.

            Quite frankly, having both is improper. You need one or the other.

            1. 1.3.1.1.1.1

              Quite frankly, having both is improper. You need one or the other.
              Quite frankly, the 1st Amendment works on a whole different level than Section 230. Congress, in enacting Section 230, does get to pick and choose who is (or isn’t) protected by the 1st Amendment.

              If Congress wants to change Section 230, that is their right. However, the actions of Congress cannot change the primacy of the 1st Amendment.

              1. 1.3.1.1.1.1.1

                Yes – but it very well can change the dynamics of how the First Amendment is applied.

                You still clenching tight your eyes to the government’s selection through the (public square) platforms of Big Tech?

                Hey, you have every right to blind yourself to the context here, but please, when you do choose to do so, don’t be sanctimonious about the First Amendment — it comes across very 1984.

                1. Yes – but it very well can change the dynamics of how the First Amendment is applied.
                  Only within the confines of the First Amendment itself, which is to say that Congress’s hands are quite tied.

                  the government’s selection through the (public square) platforms of Big Tech?
                  You, Alito, and Thomas keep saying that over and over and over again and maybe you’ll get Gorsuch on your side. However, Facebook et al. are not public squares — no matter how hard you clench your fists, eyes, or elsewhere. Roberts, Kavanaugh (and his scissors), and Barrett are unlikely to be buying what you all are selling.

                  don’t be sanctimonious about the First Amendment
                  I would rather defend it (and quite vigorously at that) rather than kick it into the dustbin of history like you seem willing to do.

                  it comes across very 1984
                  I’m not the one advocating for regulation of speech of private actors in their own homes — that would be you.

                2. Only within the confines of the First Amendment itself, which is to say that Congress’s hands are quite tied.

                  Certainly – but those confines are just not nearly as “tight” as some would want to see.

                  You, Alito, and Thomas keep saying that over and over and over again…

                  I “say” the facts because they ARE facts. Whether or not any plurality of Justices also “say” them do not change their reality as facts.

                  than kick it into the dustbin of history like you seem willing to do.

                  No such thing – maybe you need to take your blinders off, look at the actual language (since when is transparency and anti-censorship- such as the likes of shadow banning) putting the First Amendment into the dustbin?

                  advocating for regulation of speech of private actors in their own homes — that would be you.

                  Same comment – you seem to want to see “Texas wants a law” as a Headline, but not look any deeper.

                  I suppose looking deeper might expose your own fallacies as you ALSO want to look at President 45 when the content is President 46.

                3. I “say” the facts because they ARE facts. Whether or not any plurality of Justices also “say” them do not change their reality as facts.
                  A private company’s servers are not a public square. I understand that you FEEL as if they should be. However, your FEELINGS on the issue don’t translate into facts.

                  No such thing – maybe you need to take your blinders off, look at the actual language (since when is transparency and anti-censorship- such as the likes of shadow banning) putting the First Amendment into the dustbin?
                  The government regulation of private speech in a private forum is kicking the 1st Amendment to the curb.

                  The 1st Amendment also applies to not having the government force particular speech down your throat. What you call an “anti-censorship” measure is exactly that — forcing a company to present speech it does not agree with.

                  I suppose looking deeper might expose your own fallacies as you ALSO want to look at President 45 when the content is President 46.
                  #45 is inconvenient to your whole argument (about the government control of Big Tech) so you ignore it. If I was in your shoes, I would pretend it never happened either. Don’t worry, you aren’t alone as a LOT of other people have been trying to ignore what went on with #45.

                  And if #46 has these magical powers over social media companies, why hasn’t he clamped down on Truth Social? He hasn’t because Truth Social is a private company — just like Facebook and Google.

                4. Count filter…?

                  Your comment is awaiting moderation.

                  June 2, 2022 at 10:14 am

                  There you go again — pushing down the Central Person and then whining that that Central Person is Far Right.

                  As is already known, I never voted for Trump and he is not “my” guy.

                  I “ig n0re” nothing – and Trump, and Truth Social are not inconvenient at all.

                  You probably should remove your goggles though if you think that Truth Social IS on par with the other Big Tech platforms — that’s a rather embarrass1ng position to take.

                5. “ There you go again – pushing down the Central Person and then whining that that Central Person is Far Right”

                  Again, the people being kicked off these platforms are professional chaos agents, professional li @rs, and sociopaths (usually with genocidal dominionist tendencies).

                  Is that the “center” in your glibertarian fantasy world?

                6. Malcolm,

                  “Kicked off” is by no means the only issue – it is a fallacy to assert that I must support your view of “NO tolerance.”

                  Dr. James Lindsay covered this in exquisite detail:

                  link to open.spotify.com

                7. “ it is a fallacy to assert that I must support your view of “NO tolerance.””

                  I could care less if you “support” my views and I never suggested otherwise. What’s more important is that habitual liars and obnoxious jackoffs like you are silenced in whatever manner or degree is possible by whoever has the power to do so.

                8. Your putting support in quotes changes the meaning of the word, taking it out of context, so whether or not “you ever said so” is a reply to an argument never made (hint: you created a strawman to knock down).

                  As to your last paragraph, here is a more appropriate translation (in line with the Dr. Lindsay links that capture your behavior):

                  What’s more important is that [all those who does not agree with me] are silenced in whatever manner or degree is possible by whoever has the power to do so.

                  This is exactly how Dr. Lindsay captures your mindset. It is the most dangerous over-the-top authoritarianism and desire to shut down ANY opposing view imaginable.

                  It is also the type of Far Left Authoritarianism that has produced the MOST human carnage worldwide over the past 120 years – vastly outdoing the worst of the Far Right.

                  But go ahead (again) you be you and play that “one bucket” game.

        2. 1.3.1.2

          I wouldn’t call FOX or WSJ “platforms.”

          The distinction between “platform” and “publisher” is fairly thin. Both WSJ and FB can and do exercise restraints on who may publish what on their particular media feeds. A rule that says that FB may not exercise such control will not long continue to permit WSJ to exercise the same.

          1. 1.3.1.2.1

            The distinction remains – and is a distinction with a difference.

        3. 1.3.1.3

          I wouldn’t call FOX or WSJ “platforms.”

          In any event, both FOX and WSJ have comments sections, just like this blog. Is anyone surprised if those comments sections take the same editorial flavor as the publisher? Similar to the way that the editors over at IP Watchdog will censor you in a New York second if you say—in the comments—something that offends the sensibility of the overall editorial tone of that website.

          Far more “predictable” than “jarring,” all of this is.

          1. 1.3.1.3.1

            There is a difference between “take the same flavor” – and making the flavor come out the same – especially in the context you provide.

          2. 1.3.1.3.2

            Fact Checkers have chimed in:

            Similar to the way that the editors over at IP Watchdog will censor you in a New York second if you say—in the comments—something that offends the sensibility of the overall editorial tone of that website.

            Result: completely false.

            They do have an editorial policy — but it is NOT as you would paint it. I personally have disagreed many times with the supposed “overall tone.”

        4. 1.3.1.4

          Again OC – you alight upon a difference that makes a difference (even by the legislator that helped draft it, albeit NOT how he intends with with his Amicus Brief): Section 230

    4. 1.4

      It’s always a bit jarring that “platform” providers have an “editorial” position/message.
      Because they do. Let’s assume you have Facebook and you have your daily feed. That daily feed is curated by Facebook’s algorithms based upon your past likes/dislikes/viewing history/whatever. If zero curation was employed, then you be getting random things. Curating what you see in your feed is the editorial position. People usually don’t have a problem when content associated with animal or child cruelty is filtered out. I suspect most wouldn’t want to see a video of a Klan rally. However, under HB20, removal of that content from your feed would be prohibited.

      Consider that one of the exceptions to HB20 is “expression that … directly incites criminal activity or consists of specific threats of violence targeted against a person or group because of their race, color, disability, religion, national origin or ancestry, age, sex, or status as a peace officer or judge.” This means that expression that indirectly incites criminal activity or only presents general threats of violence cannot be removed.

      I’m no fan of Facebook et al., but I’m a fan of the 1st Amendment and keeping the government out of private speech. I suspect that many on the Courts are not fans of Facebook either, but they respect the 1st Amendment.

      1. 1.4.1

        and keeping the government out of private speech.

        Are you that unaware of the context driving the Texas law (hint: the current Executive Branch has let slip it’s own control over that “private speech”).

        You do have some odd choices of when you clench tight your eyes.

        1. 1.4.1.1

          hint: the current Executive Branch has let slip it’s own control over that “private speech”
          Stop getting your news from Newsmax and Breitbart. In case you forgot, #45 was banned from Twitter when #45 was head of the Executive Branch. Let me repeat that with emphasis.

          #45 WAS BANNED FROM TWITTER WHEN #45 WAS HEAD OF THE EXECUTIVE BRANCH.

          In fact, many of the people banned from Facebook, Twitter, YouTube et al. were banned by espousing views that, at the time, were consistent with the views of those in control of the Executive Branch. If the Executive Branch had this power to control private speech, how could #45 been banned?

          It is no secret that Big Tech leans left. Big Tech is typically run by people younger than the average corporate players and younger people tend to lean left. However, don’t confuse Big Tech’s sympathy with the left with government control over speech.

          If the executive branch only controls Big Tech when the left is in power, then its not really the executive branch that is controlling Big Tech.

          You do have some odd choices of when you clench tight your eyes.
          You do have some odd choices when you ignore facts.

          1. 1.4.1.1.1

            Smoke and mirrors from you – trying to talk about Trump AND you want to label me as getting my news only from Far Right sources…?

            See the note above about the meme and the Left Stick Figure pushing down the Central Stick Figure and whining how the Central Stick Figure is “Far Right.”

            That fits you – here.

            1. 1.4.1.1.1.1

              I see you cannot address the substance of my observations. Specifically, the biggest example of someone being “censored” occurred when that same someone was head of the executive branch. As such, your whole points about the executive branch being in control of Big Tech falls quite flat.

              Since you have a propensity to hide the ball (i.e., make allusions to things in your comments but not fully explain to what you are referring) I have to guess that one of the things that you might refer to is the call (by many on the left) to repeal Section 230. If so, what you may not realize (or intentionally omit) is that the right is just as vigorous in their calls to repeal Section 230.

              Regardless, government attempting to put the screws to a particular company does not make them an agent of the government. Disney, for example, is not an agent of the State of Florida despite Ron DeSantis harboring (and acting upon) a particular grudge against Disney for disagreeing with his legislation initiatives. Put simply, government threats do not transform private actors into a public square.

              1. 1.4.1.1.1.1.1

                Your sight has been noted as limited (with your eyes clenched tight), so your comment of

                I see you cannot address the substance of my observations” is as in the weeds as your attempted diversions.

                Also — your statement is more than just a little of a projection, seeing as how you have not addressed my points.

                Stick to patent law – when you veer from that, you tend to mimic Malcolm.

                1. Three responses in a row and you’ve yet to provide anything of note beyond the cryptic “Are you that unaware of the context driving the Texas law (hint: the current Executive Branch has let slip it’s own control over that “private speech”).” This is an example of what I refer to as “hiding the ball.” You allude to some “context” yet you don’t describe what it is. And I know what you EXACT response will be.

                  You’ll say how you described this “context” on some random date in the past on such-and-such post and perhaps you’ll provide a link. Following the link leads to 50+ posts by you — none of which directly addressing the issue — leaving both me and any other reader guessing as to what you meant by this “context.”

                  You want me to address the “context driving the Texas law” then explicitly describe what it is. You want me to address “the current Executive Branch has let slip it’s own control over that ‘private speech'” then explicitly describe what it is. Stop hiding the ball. Stop presuming that everybody knows what you are referring to when you make these obscure references.

                  you tend to mimic Malcolm
                  Projecting again, I see. Only a single poster on this blog comes close to MM’s propensity to not addressing the point at hand and that poster is you. You two are like an old married couple that make the same boring arguments to each other time and time and time again — knowing that you’ll never convince the other. When you two converse, nothing of substance comes from it.

                  Let’s get back to my point (i.e., the one you’ve worked so hard to avoid addressing) that the government does not control what is being filtered/censored by social networks. The evidence of this is that when there was a change in power (i.e., from 45 to 46), there was no real change in how the social networks exercised their editorial control. You haven’t addressed this fact because you cannot reconcile it with your contention that the Executive Branch has control over this “private speech.” The fact that these social networks have a POV that is more in line with one political party than the other doesn’t mean that government is controlling private speech.

                2. Your point about change in administration does NOT make “the point” that you think that it does — have you absorbed the link I provided at 8.3.1.1.1 (you are the one still trying to gas light as if their were no government connection between the current administration and Big Tech.

                  You still want to insert the prior administration as some type of proof of lack of link and that simply is a fallacy.

                  The link does NOT depend on the State coercing the media to employ its propaganda, and a willingness to be the State’s actor under one administration is enough — and IS the context that you don’t want to see.

                  That you also suggest that I am the one projecting — as that is what I called you out for — is nothing more than you doubling down on being like Malcolm. Note – and note well – that you get called out for your use of these tactics Just When you use them: when you drift away from patent law discussions and into political discussions.

                  It really is like you simply lose your ability to be cogent when politics are inserted into the discussion (sadly, you are not the only one so inflicted).

          2. 1.4.1.1.2

            “It is no secret that Big Tech leans left.”

            More like it is leftist captured. The actual people therein are not leftist save for a few big corps. They’re just geeks etc. going with the social flow, which is currently leftist controlled.

            1. 1.4.1.1.2.1

              Dr. Lindsay has the types discussed in one of his podcasts.

              The “true” Liberal Lefts take advantage of 1984’ing language that many of the Sheeple merely nod at as “being good.”

            2. 1.4.1.1.2.2

              “ the social flow, which is currently leftist controlled”

              Deep deep stuff here and totally not the droolings of a paranoid incel with the mental capacity of a 7 year old microencephalitic.

              1. 1.4.1.1.2.2.1

                It appears that 6’s reply was too harsh…(?)

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