Free Speech

[McLaren]

The original Hagerty tweet is getting a pasting on the ratio front.

I've heard the streamer I watch say this, but I must be getting as they say, "Out of touch". What is the ratio refer to?

 

[UKMikey]

I've heard the streamer I watch say this, but I must be getting as they say, "Out of touch". What is the ratio refer to?

There are four response stats under every tweet: number of likes, number of replies, number of retweets and number of quote tweets.

If a tweet has more replies than likes/retweets, it's usually assumed that more people are disagreeing with it than agreeing with it.

Not sure whether quote tweets count as agreement or disagreement but replying to a post without hearting it generally indicates that someone has a bone to pick with its contents.

 

[TexRex]

Remember when the GOP claimed to support property rights? Pepperidge Farm remembers.

 

[McLaren]

So Texas Republicans spend a great deal of time telling Californians & their companies that they're welcome here as long as they don't bring/vote for policies along that caused them to leave California. Now those same Republicans are proposing measures that will cause companies to pack up and go elsewhere as well? I gotta borrow this.


Heh™.

 

[TexRex]

This Twitter thread was a good read. I've transcribed it below for convenience, with only minor changes to make it easier to read.

On Friday the Florida legislature passed the @GovRonDeSantis-backed Transparency in Technology Act, attempting to regulate how social media sites moderate content. DeSantis has 15 days to sign the bill, and is expected to. Here's why he shouldn't.

The bill would, in part, force platforms to carry the speech of candidates for office, publish detailed content moderation policies, and moderate content "consistently." That's going to violate the First Amendment. Ironic, for a bill that's supposedly about free speech.

Florida has tried this once before, with newspapers. In 1974, the Supreme Court struck down a Florida law requiring newspapers to publish responses from candidates who had been criticized in their publication.
[outside link to case text]

Florida claimed that because newspapers were owned largely by a small and powerful group, the law was necessary to protect the public's ability to meaningfully participate in debate without abusive bias by powerful interests with control over the means of communication.

[Image accompanies the block of text above, as will be the case for future images.]

If that sounds familiar, it should: it's exactly the argument being advanced to support legislation regulating social media content moderation.

But the argument was unavailing for Florida then, and it is unavailing now. The Supreme Court held that whatever the *normative* merits of that justification, the government cannot compel private parties to publish speech that they don't wish to.

That principle applies equally to social media. Platforms, like newspapers, have a First Amendment right to make editorial decisions about what may be published—or who may publish—using their platform, whether or not they do it "consistently." The decision is theirs to make.

Related: in 2019, a unanimous 4th Circuit panel upheld an injunction prohibiting Maryland from enforcing a law regulating political adverts in media. Like this bill, that law singled out campaign-based speech for special treatment, and required media to publish disclosures.

The 4th Circuit opinion called the Maryland bill a "compendium of traditional First Amendment infirmities," eviscerating it for being a content-based regulation and compelling speech:
[PDF prompt to case text]

The panel's opinion also keenly noted that this type of regulation likely ends with less speech, not more. Beyond not carrying political ads (as Twitter has decided), platforms could just give politicians the boot in general.

This bill will certainly meet the same end. The First Amendment does not permit the government to tell media what they must say, or allow others to say on their platform. Those decisions are left to society to debate, and market forces to decide—not for the law to impose.

The constitutional smackdown this bill faces is not going to be helped by the last-minute amendment from Ray Rodrigues exempting services run by owners of a theme park (read: Disney). You really didn't need to flush twice to get your strict scrutiny argument down the toilet.

Even if the bill wasn't unconstitutional, it would still be preempted by Section 230, which expressly prohibits any state-level liability that is inconsistent with 230's protection:

Section 230 prohibits imposing liability on websites for content moderation decisions, including the exercise of traditional editorial functions, which is exactly what this bill tries to do.
[outside link to case text]

The Florida legislature acknowledges as much in the bill's text, which is either an explicit admission that the bill is purely performative, or a weak-as-hell attempt at a savings clause. Might as well have written "this bill may not be enforced."

DeSantis and his allies seem to think that by shrouding the bill in the language of "consumer protection," they can get around the problem. Here's what he told Jesse Watters:

But no matter how much lipstick you put on this pig, it still purports to impose liability for platforms' decisions to take down content or ban users. It doesn't matter what you call it; that's what it is and it's unquestionably preempted.

And there's no question that this is the point of the bill. DeSantis himself gave up the game when he called it "the most ambitious reforms yet proposed for combating political censorship and deplatforming.” This is precisely the type of state law that Section 230 forbids.

And If they didn't think you were going to do this, it's only because the "consumer protection" diversion is so incoherent that no court could ever be reasonably expected to fall for. It's the legislative equivalent of "I'm not touching you," but somehow even less successful.

In short, what we have here is a bill that is unenforceable, unconstitutional, and a waste of taxpayers' time and money. It shouldn't have been passed, and it certainly should not be signed into law.

Much of the stuff covered above also appears in Ari Cohn's piece linked to in that first tweet, but here it is for convenience.

Governor's social media bill is unconstitutional and unwise | Opinion

Gov. Ron DeSantis claims his Transparency in Technology Act would protect free speech. The bill restricts how social media sites moderate objectionable content and requires “detailed definitions” of what content is prohibited. But the bill’s entire premise is backwards. As private entities, social media companies are not bound by First Amendment restrictions. In fact, they have their own First Amendment right to determine who may publish using their websites, and what messages will be allowed.

Florida lawmakers should understand this better than anyone. In Miami Herald Publishing Co. v. Tornillo (1974), the Supreme Court invalidated a Florida law requiring newspapers who ran articles critical of political candidates to publish a reply from the candidate. Florida argued that newspapers had monopoly power and gave a tiny elite an outsized role in public discourse — and that “fairness” regulation was necessary to protect the public’s ability to participate in the marketplace of ideas.

Exactly the same arguments are being made today about “Big Tech.” But the Supreme Court ruled that none of this justified infringing on First Amendment rights; newspapers simply could not be compelled to publish material they did not wish to. The same constitutional principles protect social media.

Requiring platforms to publish detailed disclosures of content moderation policies is no less unconstitutional than dictating how those policies should be enforced. A recent unanimous opinion of the U.S. Court of Appeals for the Fourth Circuit makes that clear. Written by Reagan appointee J. Harvie Wilkinson III, the opinion eviscerated a Maryland law requiring websites to disclose who had purchased campaign ads, calling it a “compendium of traditional First Amendment infirmities.”

Judge Wilkinson explained why content moderation laws will likely result in less, rather than more, speech: “Faced with this headache, there is good reason to suspect many platforms would simply conclude: Why bother?” Twitter has already stopped carrying political ads. Other sites may well follow suit — and even ban political candidates altogether.

DeSantis’ bill is wrapped in a veneer of “consumer protection.” But simply calling it a consumer protection bill does not make it so. The bill’s true purpose is to dictate to social media companies what speech and which speakers they must allow on their property. DeSantis doesn’t conceal his goal, calling the legislation “the most ambitious reforms yet proposed for combating political censorship and deplatforming.”

It’s fair to scrutinize the influence of social media on our national dialogue, and how content moderation works — but this bill will only distract from serious debate. As with traditional media, the First Amendment leaves those questions to civil society and market forces. Ultimately, where websites draw lines on content moderation is shaped by what consumers and advertisers find noxious.

Passing this bill may mollify those who feel that “something must be done.” But their satisfaction will be short-lived: this purely performative legislation will quickly be struck down, and violating the First Amendment in the name of free speech betrays the very principles DeSantis claims to champion.

Why do Republicans hate free speech?

 

[Danoff]

Why do Republicans hate free speech?

There was a case not long ago where a gun shop was requiring buyers to indicate whether they voted for Biden and denying the sale if they did. How's that for a confusing juxtaposition of 1A, 2A and everything you just posted?

The GOP is so damned confused right now. It's almost like they never understood any of their own principles...

 

[TexRex]

There was a case not long ago where a gun shop was requiring buyers to indicate whether they voted for Biden and denying the sale if they did. How's that for a confusing juxtaposition of 1A, 2A and everything you just posted?

Fenix Ammunition. I think I may have posted on that. They also refuse to sell to law enforcement agencies after being cited for flouting mask mandates...or something like that, I don't recall fully the circumstances.

Of course they get to decide who can utilize the service they provide and to what extent anyone does.

 

[Danoff]

Of course they get to decide who can utilize the service they provide and to what extent anyone does.

But... but... 2nd amendment rights?!?!

It's big gun violating our freedoms! Wait... er... actually I think they're protecting our freedom? Hang on... "Billy Bob! Do gun shops have to sell guns under the 2nd amendment?"

We should craft a bill that says tech companies are the government and can't violate our speech, gun shops aren't the government and don't have to protect our 2nd amendment rights, and bakeries aren't the government and don't have to protect our speech... unless they won't bake a MAGA cake, in which case they are the government. And also Coca Cola doesn't get free speech, but My Pillow does.

[/s]

 

[TexRex]

Presenting "intentionally distorted," "rigged" and/or "slanted" news is protected speech. The FCC already oversteps in its capacity as a government agency with regards to profanity...it doesn't need to be called upon to overstep here. SMDH.

 

[UKMikey]

Moved from cursed tweets thread...

To be clear, that Fox News is propaganda isn't a bad take. That they're not protected against government action for speech by the First Amendment is.

I absolutely understand the current legal position but how do you feel about the Fairness Doctrine that the FCC used to enforce before it was dismantled under Reagan's watch? Anti-free speech, or responsible oversight?

Would it be fair to prohibit Fox from calling themselves a news network or is the threat of legal action from non governmental parties sufficient to curb their worst excesses as with Dominion's lawsuit leading to disclaimers?

I don't want people to shut up because I disagree with them but absolutely believe that their targets should have right of reply (which of course they already do).

 

[TexRex]

I absolutely understand the current legal position but how do you feel about the Fairness Doctrine that the FCC used to enforce before it was dismantled under Reagan's watch? Anti-free speech, or responsible oversight?

The Fairness Doctrine applied to broadcast license holders and thereby would have no sway over cable networks. Moreover, compelled speech isn't free speech.

Would it be fair to prohibit Fox from calling themselves a news network or is the threat of legal action from non governmental parties sufficient to curb their worst excesses as with Dominion's lawsuit leading to disclaimers?

I wouldn't go so far as to say it's sufficient, what with the power that ****-eating Rupert Murdoch has and the limits inherent to the legal system, but it's what we have and the government, per the First Amendment, doesn't get to tell media outlets what to call themselves.

 

[UKMikey]

The Fairness Doctrine applied to broadcast license holders and thereby would have no sway over cable networks. Moreover, compelled speech isn't free speech.

Anti, then. Hypothetically speaking, I imagine a modern equivalent would take into account the changed news media landscape in the last thirty years.

I wouldn't go so far as to say it's sufficient, what with the power that ****-eating Rupert Murdoch has and the limits inherent to the legal system, but it's what we have and the government, per the First Amendment, doesn't get to tell media outlets what to call themselves.

In that case I almost feel sorry for the crowd that eat this crap up on a regular basis. If what we have isn't sufficient, then maybe there's a case for doing something about it in a way which doesn't violate 1A.

When I was at school we had lessons that compared newspapers and taught us to recognise bias (the much maligned "media studies"). I wonder how far modern curricula go towards addressing this.

 

[Erebus_9]

When I was at school we had lessons that compared newspapers and taught us to recognise bias (the much maligned "media studies"). I wonder how far modern curricula go towards addressing this.

Recent graduate from high school here in Australia. This was covered as part of English - one unit in Year 12 (maybe 11 as well?) dedicated towards critically reading, analysing and evaluating news articles, particularly in terms of bias. Some people didn't take much on-board from it, but at least the national curriculum is definitely trying to address this. Not sure how far other countries go, though.

 

[HenrySwanson]

New laws to protect university free speech

Student unions will be legally obliged to protect freedom of speech for the first time and could be taken to court by cancelled speakers, the government has announced.

New laws will make it easier for academics, students and visiting speakers to take action against universities and student unions and claim compensation if they are gagged. The move follows instances of “no platforming” on campuses and claims that staff have been penalised for expressing controversial opinions.

The plan was one of two attacks on “cancel culture” outlined in the Queen’s Speech yesterday, with the second focused on online communication.

Ministers are to publish legislation to regulate social media companies, which will include an unprecedented requirement for them to safeguard freedom of expression.

The measures, enforced by Ofcom, will mean that companies such as Facebook and Twitter must provide people with “routes of appeal” if their messages are removed.

BBC link here.

 

[polysmut]

New laws to protect university free speech

Student unions will be legally obliged to protect freedom of speech for the first time and could be taken to court by cancelled speakers, the government has announced.

New laws will make it easier for academics, students and visiting speakers to take action against universities and student unions and claim compensation if they are gagged. The move follows instances of “no platforming” on campuses and claims that staff have been penalised for expressing controversial opinions.

The plan was one of two attacks on “cancel culture” outlined in the Queen’s Speech yesterday, with the second focused on online communication.

Ministers are to publish legislation to regulate social media companies, which will include an unprecedented requirement for them to safeguard freedom of expression.

The measures, enforced by Ofcom, will mean that companies such as Facebook and Twitter must provide people with “routes of appeal” if their messages are removed.

BBC link here.

On the surface, that looks like government regulation of universities' freedom to decide whether or not to offer a platform to speakers. Which would be curtailment of freedom spun as protection of freedom.

 

[TexRex]

On the surface, that looks like government regulation of universities' freedom to decide whether or not to offer a platform to speakers. Which would be curtailment of freedom spun as protection of freedom.

That's precisely what it is. Measures purported to be "in the spirit of free speech" are frequently not.

 

[polysmut]

I've only read headlines so far so I'm unqualified to say much. I'm very behind at the moment.

New laws will make it easier for academics, students and visiting speakers to take action against universities and student unions and claim compensation if they are gagged. The move follows instances of “no platforming” on campuses and claims that staff have been penalised for expressing controversial opinions.

I don't know what's in the new laws that are mentioned or whether making it easier for speakers to claim compensation means that undue - if that's the right word - compensation will result.

 

[HenrySwanson]

I'm more interested in the laws being proposed against social media companies and how they will work.

From the Times article linked there is the following paragraph:

The legislation will compel social media companies to remove online scams and protect freedom of expression.

There are provisions to protect what the government calls democratic content, which will forbid platforms from discriminating against particular political viewpoints, and some content that would otherwise be banned if it is defined as “democratically important”.

----

There is also this article

“Today the UK shows global leadership with our groundbreaking laws to usher in a new age of accountability for tech and bring fairness and accountability to the online world,” said digital secretary Oliver Dowden.

“We will protect children on the internet, crackdown on racist abuse on social media and through new measures to safeguard our liberties, create a truly democratic digital age.”

The most alarming aspect of the rules, as far as social media firms are concerned, is the scope within the law to block access to the sites for violations, as well as the prospect of introducing a new criminal offence for senior managers.

These criminal charges, however, will only be introduced into law if, after a two-year review period, tech companies “fail to live up to their new responsibilities”. They would be levied against managers whose companies don’t comply with Ofcom’s requests for information.

 

[Imari]

I wouldn't go so far as to say it's sufficient, what with the power that ****-eating Rupert Murdoch has and the limits inherent to the legal system, but it's what we have and the government, per the First Amendment, doesn't get to tell media outlets what to call themselves.

The government could absolutely choose to tell media outlets what to call themselves. There are protected titles like "engineer" where you may not present yourself as a professional engineer without the appropriate licensing and training. One could easily imagine something similar applied to a news organisation or even individual newspeople, if it was deemed that it would be valuable to do so.

This is a limitation of free speech in much the same way as the "fire in a crowded theatre" scenario. Yes, it limits the ability of charlatans to lie about their professional credentials and mislead people. But reducing that is to the benefit of everyone who isn't a charlatan, and probably increases the value of discourse in general as legitimate news isn't having to compete on equal footing with complete 🤬.

 

[Danoff]

This is a limitation of free speech in much the same way as the "fire in a crowded theatre" scenario.

You're allowed to yell fire in a crowded theater. You're not allowed to intentionally cause a panic and harm people. The title of "professional engineer" could be confused with someone who is licensed under their state board as having met the state requirements for having a current "professional engineering license". As long as you make it clear whether you have the license or not, it's not a problem. If you intentionally mislead, it's fraud.

I don't see this as a free speech abridgment.

 

[TexRex]

The government could absolutely choose to tell media outlets what to call themselves. There are protected titles like "engineer" where you may not present yourself as a professional engineer without the appropriate licensing and training. One could easily imagine something similar applied to a news organisation or even individual newspeople, if it was deemed that it would be valuable to do so.

This is a limitation of free speech in much the same way as the "fire in a crowded theatre" scenario. Yes, it limits the ability of charlatans to lie about their professional credentials and mislead people. But reducing that is to the benefit of everyone who isn't a charlatan, and probably increases the value of discourse in general as legitimate news isn't having to compete on equal footing with complete 🤬.

I mean...this sounds like a good idea, but there are some glaring issues.

First and foremost is identifying fraud. It's one thing to say "that's not what happened" and another thing entirely for government getting involved in determining what is factual or not. It's no secret that government actors are often deeply partisan and what is deemed to be factual or not may come down to the political bent of the content.

Another issue has already been brought up as it relates to the Fairness Doctrine, and that's the fact that Fox News isn't actually licensed by the FCC as an over-the-air broadcaster. CNN isn't either. Rather than the FCC, these outlets (and others) answer to pay service providers.

And since you bring up the often misrepresented analogy offered in Schenck v. the United States, falsely shouting fire in a crowded theater to cause panic, I'm compelled to point out that the analogy was offered to suggest there are limitations in free expression to support the simultaneously unconstitutional and unanimous SCOTUS upholding of the conviction of anti-draft pamphleteers on the basis that their efforts, though not reasonably demonstrated as directly resulting in obstruction of the draft, could be considered compelling enough to cause that unlawful act. Unsurprisingly, and thankfully, the precedent set in Schenck was later deemed to be unconstitutional, largely by the ruling in Brandenburg v. Ohio, a case in which a KKK leader was convicted for advocating violence rather than incitement to imminent unlawful acts.

 

[TexRex]

If you value your privacy, you're probably not on Twitter. But if you're on Twitter and you don't think the federal government should be able to figure out who you are so that it can take action against you for your constitutionally protected speech, you should understand that Section 230 emboldens platform providers to not buckle under pressure by the federal government for said information in the absence of evidence of criminal activity.

In other news...

Texas Lawmakers Push a Likely Unconstitutional Ban on Plant-Based Food Producers Labeling Their Products 'Meat,' 'Beef,' 'Pork'

 

[TexRex]

I'm interested to see if the Garland DOJ presses on with the action taken by the previous deeply partisan--and vindictive--agency. I certainly hope not, but only time will tell.

Edit: Aaaaand it didn't.

 

[TexRex]

 

[Eunos_Cosmo]

If you value your privacy, you're probably not on Twitter. But if you're on Twitter and you don't think the federal government should be able to figure out who you are so that it can take action against you for your constitutionally protected speech, you should understand that Section 230 emboldens platform providers to not buckle under pressure by the federal government for said information in the absence of evidence of criminal activity.

In other news...

Texas Lawmakers Push a Likely Unconstitutional Ban on Plant-Based Food Producers Labeling Their Products 'Meat,' 'Beef,' 'Pork'

I'm surprised the bill wasn't to specifically label them as "sissy meat"

 

[TexRex]

I'm surprised the bill wasn't to specifically label them as "sissy meat"

Who?

 

[Eunos_Cosmo]

Who?

That was directed at the meat portion of your post.

Meanwhile, in Florida it is interesting to note that the bill DeSantis just signed has a unique exemption.

The bill has an exemption for any internet search engine or software provider operated by “a company that owns and operates a theme park or entertainment complex.” Florida Rep. Blaise Ingoglia (R) reportedly said the exemption was put in place to ensure that the Disney Plus streaming service “isn’t caught up in this.”

I would love to see Google or Facebook or Twitter troll Florida by opening a theme park in lieu of suing them.

 

[TexRex]

That was directed at the meat portion of your post.

My apologies. I read what you said but I didn't pay particularly close attention to what you quoted. I thought it was my most recent post prior to your response. Oops.

Meanwhile, in Florida it is interesting to note that the bill DeSantis just signed has a unique exemption.



I would love to see Google or Facebook or Twitter troll Florida by opening a theme park in lieu of suing them.

Yeah, the Disney carve-out in that bad law is...odd. Or at least it would be if it wasn't so transparent, given the staggeringly massive business interest Disney represents for Florida.

 

[Blitz24]

My apologies. I read what you said but I didn't pay particularly close attention to what you quoted. I thought it was my most recent post prior to your response. Oops.


Yeah, the Disney carve-out in that bad law is...odd. Or at least it would be if it wasn't so transparent, given the staggeringly massive business interest Disney represents for Florida.

Only a matter of time before CNN Coaster opens in Florida.

 

[TexRex]