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.
I met a historian whose field is the comic book moral panic if the 1950s at a conference on Comstock, not at all by coincidence, and she would be very happy to say more about this
"I don't see how a publisher could be held liable for fiction -- I take that back," Alito says, realizing that he's about to make a dumbfuck argument even for him
there was a DIFFERENT expert on the criminalization of sexual activity, contraception and erotic expression at this conference who talked only about how untrue that sentence started out
I know this isn't your rabbit hole re NetChoice but WTF, Sam Alito, amateur historian
