Civil Liberties Dir. @EFF, 1st Amdt prof @ USF, ex-SFSU. NOT any of the other David Greenes, like the ex-NPR host, the ex-UGA QB, or the 1 who directed Grease. Posts r mine only, so hands off.
He displays the common fallacy of only seeing censorship he disagrees with & not seeing it if when he too would have censored. He cites to Parler as doing little content moderation. But Parler has 14 categories of "prohibited content." Sex censorship never counts. parler.com/community-gu...
After choosing not to use Murthy v MO to clarify the line between permissible persuasion and impermissible coercion, the Supreme Court, unsurprisingly, denies cert in O'Handley v Weber, which would have presented that chance as well (though was also dodge-able on redressability as in Murthy)
Because reading the various Netchoice opinions was not enough, the SD Miss just preliminarily enjoined Mississippi's age verification law (it was due to take effect today)
This is good: The court finds the age verification law not narrowly tailored to the state's interest in protecting children citing the existence of nonregulatory alternatives to assist parents, AND the fact that age verification schemes bruden adult internet use too.
How does the Netchoice decision affect transparency mandates? You have to look at footnote 3 where the Court seems to imply(?) that Zauderer (the less demanding compelled speech standard applied to noncontroversial, factual commercial speech) applies. What do you think @ericgoldman.bsky.social ?
Let's take a moment fully savor this shout out to competition law as an alternative to editorial commandments when dealing with problem sof market power by large social media companies:
TLDR: The court finds that age verification doesn't work to keep kids from seeing sex online and that the law is likely unconstitutional. The court rejects the 5th Cir's analysis in FSC v Paxton and finds the law must satisfy strict scrutiny--but cannot do so.
Court undertakes an overbreadth analysis because the law "burdens a significant amount of speech beyond the core purpose of the statute" and fingers-crossed that SCOTUS doesn't do something weird with overbreadth in deciding Netchoice Florida on Monday.
Indeed, as the court explains, the Act requires age-verification by an adult even if they are trying to get material that is perfectly appropriate for minors as long as the website as a whole passes the the one-third threshold.
The law fails strict scrutiny because it is underinclusive (kids can see sex on sites below the one-third threshold and otherwise easily circumvent the age-gate) and the law is not the least speech-restrictive way of addressing the problem since parents have filtering tools available.
For those looking for signs as we wait for the Netchoice decisions, the Murthy opinion shows that the Court understands that platforms routinely moderate user speech in various ways and have for along time. They are not "passive" with respect to user speech as some feared Taamneh would be read.
I also don't like this-I think one should always have standing to challenge and void an illegal government action, but that's never been the law for injunctive relief. This seems just an application of Lujan. You may recall in Woodhull we had to prove Craigslist would go back to its pre-FOSTA ways.
To the extent the Court did wade into the record, it found ... problems. See footnote 4. "4The Fifth Circuit relied on the District Court’s factual findings, many of which unfortunately appear to be clearly erroneous."
Murthy v Missouri is out and as some very smart people predicted, the Court punted on the substantive issue of when government persuasion to moderate social media content becomes unconstitutional coercion. www.supremecourt.gov/opinions/23p...
SCOTUS adds Thursday and Friday as opinion release days. And that should be enough to get the remaining 13-15 opinions out. www.supremecourt.gov/Default.aspx
I have a special fondness for today's EFF Encryptid -- the banshee -- who knows that censorship hits disadvantaged groups the hardest. www.eff.org/deeplinks/20...
For tech law nerds not writing about the Confrontation Clause, 2d Amendment, Armed Career Criminal Act, visa due process, or water rights, you can now spend the day refreshing www.supremecourt.gov to see when they add another opinion release day to the calendar.
The Court finds the 2d Circuit erred in finding that the NRA did not adequately plead such coercion. The Court emphasizes that "Generally speaking, the greater and
more direct the government official’s authority, the less
likely a person will feel free to disregard a directive from
the official."
The Court then looks at the specific communications and finds that they both reasonably can be perceived as threats or inducements to censor and that, at least for one insurance company, were actually perceived that way.
