Court of Appeals Speaks: ENOUGH
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2022-09-18 07:00 by Karl Denninger
in Editorial , 605 references Ignore this thread
Court of Appeals Speaks: ENOUGH
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This is a rather interesting opinion; take the time to read it before poo-pooing what it says, because this case is likely not over.

A Texas statute named House Bill 20 generally prohibits large social media platforms from censoring speech based on the viewpoint of its speaker. The platforms urge us to hold that the statute is facially unconstitutional and hence cannot be applied to anyone at any time and under any circumstances.

In urging such sweeping relief, the platforms offer a rather odd inversion of the First Amendment. That Amendment, of course, protects every person’s right to “the freedom of speech.” But the platforms argue that buried somewhere in the person’s enumerated right to free speech lies a corporation’s unenumerated right to muzzle speech.

The implications of the platforms’ argument are staggering. On the platforms’ view, email providers, mobile phone companies, and banks could cancel the accounts of anyone who sends an email, makes a phone call, or spends money in support of a disfavored political party, candidate, or business. What’s worse, the platforms argue that a business can acquire a dominant market position by holding itself out as open to everyone—as Twitter did in championing itself as “the free speech wing of the free speech party.” Blue Br. at 6 & n.4. Then, having cemented itself as the monopolist of “the modern public square,” Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017), Twitter unapologetically argues that it could turn around and ban all pro-LGBT speech for no other reason than its employees want to pick on members of that community, Oral Arg. at 22:39–22:52.

Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say. Because the district court held otherwise, we reverse its injunction and remand for further proceedings.

The analysis is quite-compelling and enumerated.

There is plenty of case law on this specific point when it comes to corporate actions with reasonably bright-line tests as to where the First Amendment attaches on the premise that the right to Free Speech as embodied in the First Amendment cannot be abused to compel speech.

But intertwined with this is, as I've pointed out repeatedly, common-carrier doctrine which is also well-established and, in point of fact, pre-dates the Constitution entirely.  Said doctrine does not automatically attach to every person who holds out service to the public; there is a weighing interest involved in that in a truly competitive market, as measured at a given time and place, it tends not to attach where the more-restrictive that becomes and especially when it becomes an effective monopoly on services or goods held out to the public said attachment, as imposed by a state, is both reasonable and supported in law.

To that latter point these firms have held themselves out as "the public square" with such arguments that they're free and always will be (e.g. Facebook) and similar, and have developed such reach and penetration that for many activities which absolutely reach heightened scrutiny (e.g. political opinion, candidacy for public office and similar) thus heightened scrutiny properly attaches to their restrictive acts.

The platforms argue that as in Miami they're publishers with constraints on resource and thus can do what they will as private firms.  But Miami, along with PG&E, held this for specific reasons not the least of which was that by forcing the publication of opposition speech they of necessity displaced other speech by the firm due to the limits and costs of time and space.  This was properly found to not apply in the case of these social media companies because there is no such limit on time and space nor any crowding factor, never mind that said firms take refuge in Section 230 to declare that they are NOT publishers whenever it suits them, and in fact cite Section 230 as the reason they can operate their business model in the first place.

In addition there is quite a distinction between ex-ante and ex-post-facto censorship.  One is a right of review ("editorial") while the other is a punitive measure imposed on someone after the fact.  Section 230 does not distinguish and in fact goes out of its way to make sure that cannot be used as a means of challenging said protection but when it comes to a claim of "editorial discretion" there is a monstrous difference between such a right of review and one of punishment.  The court properly found that distinction.

In addition the court found the proper distinction between the Texas statute at issue and one passed in Florida and ruled unconstitutional in that the latter created a protected class (politicians) which is inherently discriminatory and in no small part was struck on that basis.  The Texas statute, on the other hand, prohibits viewpoint-based ex-post-facto discrimination against anyone by a firm of sufficient size and market power which has, by dint of the State Legislature, acquired common-carrier requirements due to said size, penetration and lack of meaningful competitive opportunities as measured by the real world and not some hypothetical set of claims.

It will be interesting to see if Twitter attempt to appeal this further up the chain and whether this spawns similar legislation in other states that claim to be "conservative" and thus respect the rights of the people.

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Comments on Court of Appeals Speaks: ENOUGH
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Augeries 339 posts, incept 2019-09-26
2022-09-18 08:03:01

Rights belong to the individual. This is because each of us is responsible for our own decisions, regardless of outside influence.

"Following orders" is no excuse.
"I was gaslit" is no excuse.
"Peer pressure" is no excuse.

Your mistakes are your own, and you will live with the consequences, "fair" or not. Fuck your "Group Rights".

The World is Quiet Here.
Tritumi 1k posts, incept 2008-11-29
2022-09-18 08:53:20


Bravo to the court for highlighting of the most obvious of odious notions. It is as if natural right free speech harbors a newly injected experimental virus encapsulating a nanomachine that produces corporate power to spike what it wishes.
Houstonfalcon 24 posts, incept 2010-05-30
2022-09-18 10:02:43

This case isn't over by a long shot. I fully expect this case to be appealed to the US Supreme Court in the new term.

However, I do not see this case being heard by SCOTUS because as Tickerguy has stated, the Texas law passed constitutional muster at the appellate level while the Florida statute that created a "protected class" was struck down.

I expect this ruling to stand. One more thing - a lot of state legislatures have their new sessions in January. I wonder how many legislators outside Texas are looking at this case and crafting legislation similar to the Texas law. If the Supreme Court allows the law to stand (and I think SCOTUS will let it stand) look for the floodgates to open for this kind of legislation.

Fun times are ahead. Go buy another bag of popcorn and get a brick of butter ready!
Tickerguy 188k posts, incept 2007-06-26
2022-09-18 10:04:17

All you need is one state with such a law (e.g. Texas) and the game's up.

The firms cannot get around this in any meaningful way. Full faith and credit prohibits them as interstate entities from doing so; a Texas resident who travels is still covered by said Texas law, so they're fucked instantly because if they try to geofence things they will fail at it and get hammered.

NASA faked out a computer instead of running the test.
Then tried to launch and aborted instead of going "BOOOM!"
Did they abort the JABS after faking THOSE tests?
Frat 11k posts, incept 2009-07-15
2022-09-18 10:33:25


Please, oh please, try to get around this ruling, assholes.

I look forward to the fireworks. I consider social media as having greatly contributed to the downfall of civilization (it was on the way already; this hastened it) for a couple of reasons: allowing shrieking Karens to spew their verbal vomit without the likelihood of quite literally getting punched in the face, as well as purposely censoring what I would argue as majority viewpoints to allow the very-vocal minority to impose their stupidity on everyone else.

Social media is unfortunately here to stay as long as we have electricity (heh, no longer a given, eh Europe?), but I no longer and will no longer partake. Hell, I can't stand when Mrs. Frat wants pics of whatever events we're attending because I know she's going to post them. That alone wants me to not participate. On the plus side, at least one of my kids now seems to share that view and hides from those same pictures whenever possible.

We're fucked. There will be no happy ending here; there is no going back to 'normal.'. There are only bad outcomes and worse outcomes. And we don't get to choose those, either.
Dwva68 13 posts, incept 2022-03-27
2022-09-18 10:34:21

It would be great in theory for this to get to the USSC and have them resolve it in the way Karl interprets (which is clearly the right outcome for a free society).

But the Fed govt and the large corps they're in bed with seem to either ignore or deviously work around rulings/laws they don't like, so it's hard to be optimistic that even a USSC ruling would make any difference. That said, that isn't what has happened with Dobbs - maybe because it originated in the USSC in the first place, in a bizarre example of judicial activism, or maybe because it's so well known and directly impactful to people that it's impossible to shade it?

My one hope for America has been that the USSC can send enough power back to the States (like they did in Dobbs) so at least the States have legal cover to maintain some level of freedom for people (with the States offering different choices) when the Feds seem headed in the opposite direction.
Dwva68 13 posts, incept 2022-03-27
2022-09-18 10:51:06

I agree @Augeries. How the heck did we end up with purely legal entities having constitutional rights? Maybe when we started taxing them? Strikes me as odd, and there's no doubt their involvement in the political realm via social media has been catastrophic for freedom.
Thombradley 209 posts, incept 2021-11-01
2022-09-18 11:13:03

I hope those ducking soccer moms are happy for putting those yank offs in power and I thank Trump for appointing as any judges as he did. Now we need to start getting the next group of vermin out of the educational system, the soccer moms will need to do that at the local level for starters so in 15 years when they send their little darlings off to university they have enough critical thinking to call bullshit on the lefty indoctrination.
Prof_dilligaf 398 posts, incept 2021-09-02
2022-09-18 11:13:57

Aren't all these grimy corpofucks government agents anyhoo, by partaking of all various tax breaks (at all levels), "special enterprise zones" and .gov bailouts? Suckling at the government teat is, after all, the "rationale" used to muscle even ostensibly "private" schools into bending over for all sorts of heinous garbage.

And don't even get me started on why certain modes of nominally "interstate" commerce are ripe for Federal intervention via the Commerce Clause, and why others are apparently granted sovereign immunity.

"Hell, I can't stand when Mrs. Frat wants pics of whatever events we're attending because I know she's going to post them. "

It's amazing to me how so many people can't see how putting your entire life up on the internet is a turrible idea, but you can still find plenty of, err, "folks" who happily display their real name and birthday in all sorts of places (or at least make the second part incredibly easy to deduce), so I guess I shouldn't really be surprised.
Moconserv 338 posts, incept 2013-02-13
2022-09-18 11:40:01

I think the technology enabling the instantaneous "Look at Me" available to society at large really, really fucked things up. Up the ass with a rusty chainsaw isn't good enough. I come from a large family (8 siblings, 22 nieces and nephews who are all of age)... just the family squabbles amongst them over Facefuck posts are enough to create angst for 15 Christmases to come.... now extrapolate that to the population as a whole. Yup, nuke 'em from orbit.

Embrace the suck.
Grf 1k posts, incept 2008-12-08
2022-09-18 11:48:33

While my first emotional reaction is good, fuck the libs, doesnt this prevent the market from working? Platforms such as Rumble, Gab, and Truth Social would not have arisen if YouTube, Facebook, and Twitter has not censored speech. People were fleeing mainstream social in stoves without government intervention.

"Every time we on TF talk about God and gays, God frees a banker and gives him a bonus." --me
"Your farts are interstate commerce and if they want to stick a muffler up your ass they will do it." --B
Tickerguy 188k posts, incept 2007-06-26
2022-09-18 11:49:26

@Grf - exactly how does it "prevent the market from working"?

Better, faster, cheaper continues to work. Coercion isn't about market forces, and confusing the two is either foolish or malicious.

NASA faked out a computer instead of running the test.
Then tried to launch and aborted instead of going "BOOOM!"
Did they abort the JABS after faking THOSE tests?
Burya_rubenstein 2k posts, incept 2007-08-08
2022-09-18 12:59:39

I've noticed a lot of stuff getting past the FB censors and on to my feed. Example:
Smooth 116 posts, incept 2020-03-26
2022-09-18 14:13:56

Does this mean that YouTube, Facebook, and Twitter will no longer remove videos that contraduct the COVID 19 official narrative on the vaxx, etc.?
Jwm_in_sb 5k posts, incept 2009-04-16
2022-09-18 15:54:10

I believe that's the argument Dr. McCullough warned about over the labor day weekend.
Jwm_in_sb 5k posts, incept 2009-04-16
2022-09-18 15:54:14

I think it means they can be legally challenged if they do that now. My guess is that is or just had a lot meetings with their legal council about this ruling.
Thombradley 209 posts, incept 2021-11-01
2022-09-18 15:54:20

Smooth I wondered the same thing on Covid. I see a lot of doctors and no mention of the clot shot. They still all wear the face diaper and all but one requires it from the patients. The otheers all have posted signs saying to the effect masks not required but HIGHLY recommended. Duck them, doesnt give me a good feeling that my medical provider is STILL so stupid to think they matter. I completely missed that the Bieber suffered a real rare infection? that left facial paralysis and his young wife had a cardiac event. What a coincidence.
Smooth 116 posts, incept 2020-03-26
2022-09-18 16:17:31

I am a medical doctor in private practice in CA. I don't require masks in my office, I dont wear them, my staff doesn't wear them, and I do not ask about vaxx status.

Until recently if anyone asked my advice about the vaxx I advised against it.

Now that is illegal by CA law.
Ckaminski 6k posts, incept 2011-04-08
2022-09-18 17:01:39

You can't give advice against the covax?

Holy crap.
Asimov 138k posts, incept 2007-08-26
2022-09-18 17:27:55

Until recently if anyone asked my advice about the vaxx I advised against it.

Now that is illegal by CA law.

Wait, what?

It's justifiably immoral to deal morally with an immoral entity.

Festina lente.
Querant 249 posts, incept 2021-09-19
2022-09-18 17:34:12

Text of California law just passed by state legislature, awaiting Newsom's approval:

Reason: link broken
Jwm_in_sb 5k posts, incept 2009-04-16
2022-09-18 18:27:27

You guys are not aware of that CA law coming into effect??? It's all over alt media. I suspect that is why Dr Drew was cramming in all the interviews with Dr. Victory, Malone, Riesche, McCullough. Drew was on Tim Pool Friday night when the news broke about this big tech ruling on censorship. I suspect that CA law will get challenged.
Bradmenz 12 posts, incept 2021-12-12
2022-09-18 18:27:42

I was tasked with creating a FB account using my work email so IS could manage the business account when necessary.
The password I created was not kind to the pants-shitter-in-chief.
The very 1st logon to the account caused an immediate suspension for violation of terms.

Do I care? Nah.
Takewhatyoucan64 26 posts, incept 2022-08-30
2022-09-18 18:27:56

A lot of forums are gonna get sued
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