Florida and Texas want government to police free speech on social-media platforms. No one would be happier with that outcome than president Biden and Elizabeth Warren.
Big Tech Censorship
Republicans are not happy with what they perceive as social media censorship.
However, their remedy would let government instead of private companies be the judge.
Social Media Goes to the Supreme Court
Please consider Big Tech Censorship Goes to the Supreme Court
NetChoice, a tech industry group, is challenging Texas and Florida laws that seek to prevent social-media platforms from silencing conservatives. Republicans are rightly frustrated by censorship that often tilts against conservatives, including us. But the solution to business censorship of conservatives isn’t government censorship of business.
The Florida law bans large social-media platforms from removing the accounts of political candidates, or suppressing posts by or about them. Platforms also can’t take “any action to censor, deplatform, or shadow ban a journalistic enterprise based on the content of its publication or broadcast,” and they must apply their standards “in a consistent manner” among their users.
Texas and Florida lean heavily on the Court’s Pruneyard precedent (1980), which held that California could extend its constitutional free speech protections to malls because they are open to the public. But malls don’t typically engage in activities protected by the First Amendment. Pruneyard also gave short shrift to the property rights of business owners.
A more relevant precedent is Miami Herald Publishing Co. v. Tornillo (1974), which overturned a Florida law requiring newspapers to offer equal space to political candidates to respond to editorials that criticize them. The Court said the law compelled and chilled speech because “editors might well conclude that the safe course is to avoid controversy.”
The overriding problem is that extending common-carrier regulation to social-media platforms invites more government control of speech. Do Florida and Texas want Federal Trade Commission Chair Lina Khan dictating what can and can’t be said online? Could California pass a law requiring companies to remove posts that criticize male transgender participation in women’s sports?
A Relevant Same Sex Marriage Case
Consider the case of 303 Creative LLC v. Elenis.
The state of Colorado told Lorie Smith, the owner and founder of the graphic design firm 303 Creative LLC, that she had to design a website for same sex marriages. The district court agreed with the state and the U.S. Court of Appeals for the Tenth Circuit affirmed.
303 creative took the case to the US Supreme Court and the court reversed the Tenth Circuit Court of Appeals.
Here is the 6-3 ruling (emphasis mine), with justice Justice Sonia Sotomayor writing a misguided dissent.
Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance. In the past, other States in Barnette, Hurley, and Dale have similarly tested the First Amendment’s boundaries by seeking to compel speech they thought vital at the time.
But, as this Court has long held, the opportunity to think for ourselves and to express those thoughts freely is among our most cherished liberties and part of what keeps our Republic strong. Of course, abiding the Constitution’s commitment to the freedom of speech means all of us will encounter ideas we consider “unattractive,” (opinion of SOTOMAYOR, J.), “misguided, or even hurtful.” But tolerance, not coercion, is our Nation’s answer.
The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands. Because Colorado seeks to deny that promise, the judgment is Reversed.
Be Careful of What You Wish
Undoubtedly, the states of Texas and Florida cheer the above result. Yet, they want it both ways.
The two states seek to force social media to not sensor political posts.
Imagine Trump’s “Truth Social” being forced to accept opinions of President Biden and Elizabeth Warren.
Winner Is NetChoice
NetChoice will win this case easily. The relevant cases are 303 Creative LLC v. Elenis and Miami Herald Publishing Co. v. Tornillo.
Texas, Florida, and Republicans in general won’t be happy with my suggested Supreme Court outcome, but they should be.
“All persons are free to think and speak as they wish, not as the government demands.”
That should apply equally to graphic designers and social media platforms.
To demand otherwise would result in FTC Chair Lina Khan telling Trump’s “Truth Social” that it has to accept posts from those who ridicule Trump.
What a hoot that would be.
“The two states seek to force social media to not sensor political posts.”
Why should political posts be censored? The Hill used to have a comment section after their stories. Lots of political argument ensued. Jonathan Turley has a comment section. Political arguments ensue. Turley even gets criticized for his opinion.
Facebook is not promoted as a left or right wing site. But they act with a political bias. Twitter was not promoted as a left or right wing site, but they acted with a political bias. Google does not promote itself as a left or right wing site, but they act with a political bias. As the Washington Post said, democracy dies in darkness. Censorship is darkness.
Matt Taibbi checked out Google’s AI, asking it’s opinion of him. It talked of criticism toward him for stories he never wrote. It was just inventing claims and even changing the claims as Taibbi inquired further. Google’s AI has a woke bias, which represents the bias of the workers at Google.
How come no one can handle the actual truth anymore ?
Seems to me the fear is unwarranted.
“I disapprove of what you say, but I will defend to the death your right to say it”
Was taught in US schools before “free speech zones” became a popular feature of the academic world.
That said, I find it odd that when people talk of “free speech” and 1st amendment distinctions between public and private organization, they never mention spam.
Suggestions to regard social media web sites as common carriers must include ways to deal with spam.
no that wasn’t taught in schools. speaking your mind in schoolw would result in punishment. what you you are asserting is the propaganda of the system. the system can only maintain power by destroying those who speak their mind.
It was taught in the schools I went to. Oregon public schools. Small town. Nothing noteworthy.
For example, an English teacher, while teaching Robert’s Rules, injected 1st amendment exploration in to a scenario that put the class in two or more competing groups (I forget details). Imagine a bunch of high school kids playing Calvin Ball. It was hilarious and memorable. But it included putting us in the positions where we’d be very much against a 1st amendment system.
Most teachers I had loved, really loved, interested students. How do you show interest? Speak your mind.
Adam, I’m sorry about your experience. And I speak as someone who fundamentally didn’t belong in school and knew it the whole time.
“Imagine Trump’s “Truth Social” being forced to accept opinions of President Biden and Elizabeth Warren.”
If either were inclined to open accounts on Truth Social then what would be the problem in preventing them, or their supporters and critics, from being censored or shadow banned?
This is a common sense law if you cut it Left or Right.
The only institution that should adjudicate the permissibility of certain speech is the independent judiciary (whether it is a crime or not). Today we have the worst possible outcome, with government circumventing the constitution and then claiming a (coerced) private party it was, and not them. Platforms that function as public utilities should also not be free to censor, but they have much less interest in doing so when not (furtively) coerced.
This. I usually agree with Mish, but if he doesn’t even acknowledge the difference between these mammoth social media firms and a local website design company, or the difference between providing equal access (by the public, not the mammoth social media firms) to the public square and limiting free speech, then he might be having an off day. It is hard to buy the slippery slope argument he uses when the censoring of conservative viewpoints arguably changed the course of the last Presidential election (the HB laptop, COVID information) with disastrous results. I will take the chance that the SC could allow for some state-required reduction in the opinions getting censored by social media, but still prohibit true censorship by the states. It isn’t the opinions of the social media companies that are currently being censored, but those of real citizens.
ZH: “From CIA To ‘Trust & Safety’: The Silicon Valley-US Intel Revolving Door Is Bigger Than You Thought”
“The cumulative number of former Intelligence Community personnel hired by Meta & Google since 2018 is staggering. Before 2018, there were only a handful. Here are the combined hires by both companies:
CIA-36
FBI-68
NSA-44
DHS/CISA-68
State Dept-86
DOD-121”
I think it was a former FBI guy, that Musk fired for interfering with Taibbi when he was investigating the Twitter Files. I believe Musk is now suing Media Matters for a stunt they pulled against X. It isn’t a simple matter of free speech. The Marxist leftists are trying to put Musk out of business, so there is only one narrative allowed. One narrative, isn’t free speech. “Former” government personnel shouldn’t be embedded in Meta and Google, to control what people are allowed to read, see or talk about.
Yes, I want my news about American government from a Russian propaganda website…just remember, that Putin guy only has America’s best interest at heart and Zerohedge is 100% Americans in it’s comments section.
You do realize that the U.S. government is lying to us, right? “Safe and effective” was a lie. “Unprovoked” was a lie. You talk about Putin, when our own government doesn’t have America’s best interests at heart.
Facts are facts, regardless of the publisher. I don’t know personally anyone else who posts in comments here or at ZH. Allegedly, not everyone here is posting from the U.S. Why would i think differently of ZH? Dr. Robert Malone has been writing about psyops, so anyone could be posting from any government in order to attempt to influence the conversation in any comment section.
“You do realize that the U.S. government is lying to us, right? “
I’m curious, does Putin lie to his people?
I see you don’t care that our government is lying to us. What is the death toll from the “safe and effective” Covid shots in the U.S.? The CDC/FDA is hiding the truth. What is the truth about Ukraine? We aren’t being told. It is all self serving government narrative, to the detriment of the people being harmed.
These platforms and the media have created a Left wing monoculture. Only certain thoughts are allowed to be aired on them, and the public square is effectively controlled by them. Fear of using state power makes Libertarianism useless. These same groups will run cover for the most Left wing ideas possible, they only used free speech like a trolley. Once they reach their destination they have no use for it.
In red states, then, a bakery can deny services to a lesbian couple, but a social media forum can’t.
Interesting.
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You’re about to get down voted into oblivion for daring to use logic and thinking out loud.
Your logic is no good here, gotta post comments while stroking your banjo, taking a swig of beer and thumping the good book a few times….
I get downvoted regardless, reminds me of “Get big government out of my Medicare!” a decade ago, if you try to explain, you’re a “socialist liberal”.
it drives me insane how so many think “Libertarian” means extreme alt right.
Socially liberal, fiscally conservative, prioritizing personal freedom above all else, including government, corporate and plutocratic control.
I could care less about most of it on either side, but for the outright stupidity most opinions are based on.
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The problem is apples and oranges. Bakeries have very little scope to influence but social networks do. That’s what terrifies government.
Didn’t the bakery case make it to the supreme court? Wasn’t there a bunch of influence around that topic? Do you see the irony of your statement?
One obvious difference is the bakery is a privately owned business. Social media companies other than Twitter aren’t. So technically someone who owns a share in those companies is part owner which muddies the waters a lot.
Also, the bakery was denying a specific service (baking a cake specifically for a gay wedding) but did not deny them service in general (say buying a cake off the self and later self decorating it).
It’s going to be a really complex decision for the Supreme court to come up with a logical consistent ruling because the internet itself plus the way people interact with it is so complex.
No they cannot. They can deny, to anyone, the request to create something for them that violates the creator’s beliefs.
If the Lesbian couple walks into the bakery and asks to buy a dozen pastries they cannot be refused service based on them being gay.
Let me know when you find a social media company trying to deny services to a lesbian couple. Or maybe when you find a better straw man. On a less ad hominem note, there is a huge difference between the social media behemoths and a local bakery.
Good thing nobody remembers Antitrust.
Something interesting also happened at American universities: conservatives who presented themselves as staunch defenders of freedom of expression turned into censors when the events in Gaza emerged. Glenn Greenwald has published some interesting articles on this subject. We find similar phenomena in France: a news channel (CNEWS) which claims to fight fiercely against the “woke” influence and its censors, but which falls flat on its face in front of Israel.
If you state you disagree with Netanyahu, you’re antisemitic, if you disagree with Hamas, but state that the mass murder of Palestinian children is wrong, you’re also antisemitic.
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The quoted analysis is not very good. While there is some danger, the 2 states seek to prohibit censorship, not have government dictate it
Truth Social SHOULD be forced to allow ALL speech contrary to Trump or any speech
Justice Thomas has the right idea.
The large social media platforms and Google/Youtube SHOULD be declared common carriers like telephone companies, who are absolutely prohibited from doing anything with the information being carried on the telephone network
Section 230 is not the right solution and should be struck down.
Now whether making them common carriers is within the power of the Judicial system or whether it would require an act of Congress is another question but that is a powers question.
Public companies only.
Private companies are something else entirely so Trump’s privately owned social media platform doesn’t have to post dissenting stuff.
Disagree. Ownership status in this case does not matter
Your command of the Public Square does. Now if you want to argue that Truth Social has only a very tiny presence in the public square fine
And in any event being a “Public Company” you are still PRIVATELY owned, not government and hence not subject to the 1st Amendment, which only constrains GOVERNMENT or those taking on a government like function or in these case, are heavily influenced and in many cases actually THREATENED by the Government
In any event that is why deeming them Common Carriers is the correct solution.
Telephone companies were ALSO privately owned (even thoough often “Public” Companies, meaning listed on a stock exchange). But they were NOT allowed to have any interaction with the data passing over their network, even though of course they were when the NSA deemed it so.
By that logic, someone could post nude photos of someone (or copy right material) and they would not be able to take them down because they can’t interfere with the data. That obviously doesn’t make sense.
You also have to allow for some moderation based on topic. In other words if I create a social media network for sport lovers only, I don’t expect I’d have to allow a bunch of off topic posts about political discussions or any other non sports related topic.
The big difference between the internet and phone carriers is that everything on the internet is forever where as conversations disappear immediately. That’s a big distinction and something that’s going to have to get sorted out.
What if I hate ALL WHITE people because a WHITE MAN Killed my Brother. Oh, and I am German-American and white as a Ghost.
Incidentally, the Chinese have a word for White Folks that translates to “GHOST”: haakgwai (黑鬼
BUT, if a Chinese Guy, that is a friend of mine (Yes, I have a friend who tolerates ME – – he thinks that I am “nutty Professor White Boy”), has a PROBLEM with haakgwai (黑鬼 – I defend him to have that opinion and to SPEAK OUT LOUDLY about hating “us” white Folks.
Are the ghosts in China European or Asian?
: )
The real problem is editorial control and liability should go hand in hand. They want immunity from posts advocating for violence and crime while at the same time exerting editorial control over politicians.
I don’t think anyone has ever been able to legally advocate for violence and crime on any medium. It’s the whole ‘yelling fire in a crowded movie theater’ ruling on free speech many decades ago.
So you might be able to post such things but they can be removed.
That’s not true at all. I can trivially find examples of people advocating for bombing Iran, even by acting senators. I can find instances of people advocating for punching the unvaccinated/vaccinated rather easily. There’s lots of coverage of instagram fostering pedophiles. Do you think it’s rare that people advocate for those kinds of things?
The point being, those things are often allowed to stand, even under the editorial policy of the platform that is selectively enforced against certain persons under direct government direction. They should be liable for those actions coordinated on their platform given they retain editorial control of what is allowed there.
I didn’t say those things couldn’t be posted. I just said they can be removed because they can be construed as advocating for criminal behavior (technically bombing Iran can be legal if Congress authorizes it but the other 2 things aren’t legal).
Now you could fight that removal but you’d have to figure out it if was worth the time / effort / cost considering the chances you’d lose.
The problem is that social media platforms denies their responsability on the contents. When they are demanded because of their harmful messages, they argue that are the free users’ opinions.
If it’s your free speech, you are accountable. If you are only a enabler of others’ opinions, you must stop censoring.
About hiding behind using free speech as a public platform then claiming that censorship cloaked as an algorithm is not censorship.
A private company can stay private without government intervening however it is not then just a information conduit but it is a publisher and subject to anti defamation litigation and other Law aimed at keeping Publishers honest brokers.
Big Tech has become such an animal. They lay claim they are only a conduit of information yet act as agent of social censoring. Supreme court must look at outcome of practice not just a theory.
If it looks like a Duck, walks and squawks like a Duck then it is effectively a Duck.
Public utilities are regulated, Big Tech is effectively operating as a public utility yet not subject to similar treatment.
Marketplace would normally have balanced things out but Tech has been protected from market forces and now are monopolies. State laws addressing that situation were implemented as remedy.
I believe the intention of all these laws/rulings, is to allow individuals the freedom of speech, not to be inhibited by government or corporations/common carriers. Any encroachment of this right….ie censorship…should be tossed.
Did one Mike Shedlock never hear of “Agenda 2025” ? That program scares me much more than one or two court rulings.
Spot on. These dunces don’t seem to grasp the obvious: that if they can regulate speech, so can their enemies. And these are what we have for Republicans! At some point the “public square equivalent” doctrine needs to fall in favor of recognizing property rights, i.e., you can speak your mind from the platform you own, not from the one I own.
But the liberals own all the cool platforms….and republicans have am radio.
But who in fact owns those platforms? Most are not privately owned like Twitter. Facebook etc are public companies that anyone can own a part of by buying some stock. At that point they should effectively be able to post what they want since they are part owner.
Also, Telephone and Telegraph companies more than 100 years ago already faced these issues in court cases. Phone companies were *correctly* forbidden to prevent conversations by people using their phones on the Telephone/Telegraph company lines.
Tim,
I own oil and gas stocks, can I lower the price of gas to $0.02/gallon? I am after all a shareholder. I also own MDT, can I get a free wheelchair for my mom? What about free drugs from PFE, GILD, BMY?
I never knew I had so much power. Tell me more.
I never said owing a share made you a dictator for company policy.
You can advocate for those things you mentioned at shareholder meetings and organize enough share holders and you might even enact them.
But you are most definitely part owner of those companies so the idea that you can ban someone based on them not being an owner doesn’t pass the test.
Your arguments are nonsensical, at least from a private-property standpoint. The collectivist decision re common carriers denies the owners the right to have sole control over the use made of their property; the solution, if we don’t like one carrier regulating our speech, is to support another. (I wonder if someone could argue that the common carrier doctrine contributed to Telephone, e.g., having an effective monopoly for so long?) This applies as well to the abominable “town square” doctrine that prevents shopping malls, for instance, from banning leafleteers from their property; it’s no longer private property by this doctrine, it’s equivalent to a public square–an idiocy that confuses private owners’ rights to control what’s done on their turf with government censorship of what’s said on commonly owned streets. Your “part owner” argument is even sillier because a privately owned company can choose to be a public billboard or to limit what’s posted; the shareholders delegate this decision with so many others to management. My solution, if I don’t like what a company does, is to buy from a rival: I don’t have to have a subscription to any leftist newspaper.
We are stuck in a soap opera with no ending
Great comment!!! 👍
No ending is the whole point of a soap opera.
Far too many people misunderstand Section 230 and think that they can just flip a switch in a vacuum to fix all the horrible things done by those big evil social media companies like META. They have no idea that free speech rights extend to private companies to do with what they please. Ironically as you point out in another context, arguing for free speech by trying to restrict and regulate. It’s not like social media posts are zygotes… *ZING*
Agree 100%
Kinda like “we have to burn the village to save the village”
“Imagine Trump’s “Truth Social” being forced to accept opinions of President Biden and Elizabeth Warren.”
Imagine Mishtalk being forced to post climate change activist posts! Oh the humanity!
You and Papadave post climate change activist comments all the time here. So I’m failing to see your point.
And it’s Mish’s blog (i.e. his opinions and analysis).
It was a joke dude, lighten up. And I am not an activist, I respond to reality. I was warning about exploding insurance rates years ago and here we are. Half of Texas was burning yesterday, don’t recall that happening in my lifetime.
I am now warning about huge inflation over the next 5 years. Check back in with me in 5 and let’s see who was right and who was well prepared financially for such scenario and who was not.
“Half of Texas was burning yesterday, don’t recall that happening in my lifetime.”
Did the history of earth start the day you were born?
Yes, I too expect inflation to get worse, but not because of climate change.
MPO45v2 (he-she-or-it) cannot think for itself. Climate Change is boring the crap out of us. It is so freaking cold her right now, that I am going to start a GLOBAL COOLING campaign and seek funding from COOLING interests.
Wildfires are natural to Texas even before Whites showed up.
Largest wild fire EVER.
I prefer to think of myself as a climate change realist.
My personal definitions:
Climate change activist: Someone who understands that anthropogenic global warming and climate change are a very real problem, but who mistakenly believes that humanity will be able to do something about it if they themselves personally campaign for it.
Climate change denier: Someone who would rather believe that anthropogenic global warming is a hoax because it doesn’t fit their ideology. In the same category as those who deny smoking is bad for you or who still believe the earth is flat. These folks are easily duped because they want to be.
Climate change realist: Someone who realizes that anthropogenic global warming and climate change are very real problems that will continue to get much worse because humanity is not going to be able to do much about it for the rest of this century, if not longer.
As a climate change realist my goal is to profit from the situation, because I cannot change it.
then you clearly don’t see the connection between a wildfire destroying all the cattle and the grass it grazes on driving up the cost of beef.
or droughts impacting crops driving up prices. so believe what you will….
We know the Texas wild fires are the fault of California liberals.
Hey, he-she-or-it: what do Texas fires have to do with Free Speech. Askin’ for a friend.
Methinks that MPO45v2 is lame-brained and cannot think for itself.
me thinks you can’t offer any kind of intellectual, logic based response so you reduce yourself to name calling.
me thinks you are definitely:
No need to respond, I know I’m 100% correct.
When will this dumb boomer vs. anyone younger crap stop? It’s moronic. Oh and I’m not a boomer.