I am amused by Kagan starting with "Not even thirty years ago, this Court felt the need to explain to the opinion-reading public that the “Internet is an international network of interconnected computers.” Things have changed since then."
"And those government actors will generally be better positioned than courts to respond to the emerging challenges social-media entities pose." nice dig at Loper Bright there, heh
This is such a fucking frustrating argument. The Court completely misses that the purpose of a request for injunction based on a facial challenge is to prevent having to build the systems to allow for compliance with a plainly unconstitutional law.
In general, courts have failed to grasp the amount of *work* it takes to comply with this bullshit. Mississippi passed HB 1126 (their bullshit social media deanonymization and content censorship law) 2024-04-30 with an effective date of 2024-07-01, giving 62 days to build entirely new systems.
Not only are these laws themselves a prior restraint on protected speech, which is a presumptive harm even if it's anticipatory, but the work you need to do to prepare to comply with them incurs costs that are not recoverable.
I have, of course, spent the last 15 minutes trying to find the goddamn case to cite that I'm thinking of to justify "the costs of preparing to comply with an unconstitutional law is grounds for bringing a facial challenge instead of an as-applied challenge" but I'm having no luck, sigh.
(If anyone with actual Westlaw access has a few seconds to help out there, I would appreciate it, but it's probably not super necessary, which is why I stopped at 15 minutes.)
Back to the opinion. "But it is necessary to say more about how the First Amendment relates to the laws’ content-moderation provisions, to ensure that the facial analysis proceeds on the right path in the courts below. That need is especially stark for the Fifth Circuit." lollllll
I do appreciate a good "we're remanding this for other reasons, but don't let that make you think you were actually *right*, Fifth Circuit", even if I'd have preferred a more conclusive ruling: it *is* helpful to get this established.
We cover the parade of the usual cases cited for the principle "editorial discretion is protected speech", which long-time readers will be familiar with:
- Miami Herald Publishing Co. v. Tornillo, 418 US 241 (1974)
- Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal., 475 US 1 (1986)
- Turner Broadcasting System, Inc. v. FCC, 512 US 622 (1994)
- Turner Broadcasting System, Inc. v. FCC, 520 US 180 (1997)
- Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, 515 US 557 (1995)
We then cover two cases that distinguish Tornillo, and I repeat my assertion that the general opinion of every subsequent court is "...can we all just agree that Pruneyard was a bad call and decide to never speak of it again?"
bsky.app/profile/raha...
(The reason I am keeping a running tally of the Pruneyard references is that Pruneyard is like literally the only case that's on the state's side, and it's been narrowed down by subsequent jurisprudence that literally everyone's attitude to it is "let's just ... agree not to talk about Pruneyard")
ooooh we just had to get that (wrong!) dig in: "And similarly, today’s social media pose dangers not seen earlier: No one ever feared the effects of newspaper opinion pages on adolescents’ mental health."
okay I laughed at "Most readers are likely familiar with Facebook’s News Feed or YouTube’s homepage; assuming so, feel free to skip this paragraph (and maybe a couple more)."
Again: excellent to get in the record, always love a good "fuck you, no" to the Fifth Circuit, but once again, this should have been dispositive right here
A very welcome and clear statement that algorithmic timeline curation *is* editorial discretion as protected by Tornillo that is also going to be useful and frequently cited (but again! this should have been dispositive!)
Another very useful and helpful statement about editorial discretion: you can't argue that it's not editorial discretion just because someone might believe the speech is not the site's, because the aggregate of third party speech allowed vs removed demonstrates the site's overall editorial viewpoint
"The overall gestalt of what speech a service allows, allows-but-downranks, and removes is itself a protected act of speech" is a very easy and obvious conclusion from Tornillo, but states are still trying to argue that it isn't just because it's on a computer: this will help.
It is really common in these cases for courts to punt on ruling whether strict or intermediate scrutiny applies because the laws fail even intermediate scrutiny. More rulings that these laws fail intermediate scrutiny are always welcome!
But I really really wish more judges would come out and firmly say that these laws are subject to strict scrutiny (because they are and should be). So far the only one willing to make that statement has been Judge Marbley in Netchoice v Yost: storage.courtlistener.com/recap/gov.us...
This is definitely a little "shut up and take the win" of me, I admit (and I will take any win, any way I can get it). But as the first wave of *blatantly* unconstitutional pretextual interferences with speech have been struck down, states (and Congress, IE KOSA) have been getting more clever.
The better they get at pretending their laws are aimed at a less *obviously* pretextual state interest, the more the question of intermediate vs strict scrutiny will become relevant, and I would really feel a lot better if we went into the legal fight over, ie, KOSA with a stronger precedent.
Another helpful restatement of "core First Amendment protections for speech do not go away just because the speech in question happens on a computer, and the First Amendment prohibits the government from telling a private party what speech it can allow".
Followed in another few sentences by "On the spectrum of dangers to free expression, there are few greater than allowing the government to change the speech of private actors in order to achieve its own conception of speech nirvana" which is another candidate for Future Most Cited
It's also an *excellent* restatement of one of the things that fervent First Amendment advocates get screamed at about all the time. People constantly demand to know why we think "free speech" should win out over any one of a thousand other considerations about what speech is harmful.
Setting aside the fact that there *is* a way by which speech can legally be restricted -- the law must just pass strict scrutiny, which is a difficult but possible task -- that sentence, right there, is an *excellent* articulation of why I fight so hard against laws that regulate speech.
"On the spectrum of dangers to free expression, there are few greater than allowing the government to change the speech of private actors in order to achieve its own conception of speech nirvana." Even if I agree with what the government is trying to restrict *in a specific case*.
Giving the government the ability to determine what I can and can't say *for any reason*, even a "good" one, is dangerous as fuck. Because their "conception of speech nirvana" can change at any moment to something I don't agree with.
Footnote 10, broken up across two pages so it's too much of a pain to screenshot the entirety of, once again helpfully distinguishes Turner: the "compelling state interest" there was not regulating speech, it was preserving local broadcast stations.
I am not in 100% love with Turner as a precedent because I can see a bunch of ways in which it could be abused to allow a couple of provisions of the laws in question, like the FL law's prohibition against "deplatforming" candidates for office, but I think Tornillo forecloses a lot of the worst.
(Alt text overflow from previous post's screenshot: "...communicating different values and priorities. But under the First Amendment, that is a preference Texas may not impose.")
This is the core of why I'm so frustrated with this decision even though, overall, it is relatively positive and will be helpful. The Court just spent 30-some pages explaining why the plainly legitimate sweep of the laws are unconstitutional!
The Court's argument here is essentially that because the record is not fully developed as to what additional sites and services might also be affected by the laws being written with a *ridiculously* overbroad definition of "social media", there's not enough evidence to rule them unconstitutional.
But the record DOES show a) the definitions, like every other legislative attempt to define "social media", are both wildly overinclusive and wildly underinclusive and b) the states wrote them to target specific disfavored speakers. All of which are signs of presumptive unconstitutionality.
Remanding for further development here just encourages states to write even more ridiculously overbroad laws so they can drag out the judicial process longer and take up more time and effort fighting them. This is a really bad incentive!
On to the concurrences. Barrett immediately points out exactly why Friday's decision in Loper Bright was fucking bullshit! Except she doesn't see that she did. (Sorry for the giant margins in the screenshot there, sigh.)
