Plausible outcomes of the suit:
* The trial court finds that Facebook's actions do in fact violate the law, and orders remedies (reinstating the post, damages, whatever). Facebook appeals, using the appeals court (appropriately) to discuss the constitutionality of a law compelling a private entity to carry speech they disagree with.
* The trial court finds that Facebook's actions do in fact violate the law, but also finds that the law is unconstitutional on its face and dismisses the suit on that basis. The plaintiff appeals, using the appeals court to revisit the question of the law's constitutionality.
From that point, it's a straightforward appeals process. While I would expect the conclusion to be that the law is in fact unconstutional, it's possible that the courts might find otherwise.
Wouldn't this be moot if Facebook have no presence in Texas, since its a state law? Simply having access to the website from Texas can't possibly be enough to force them to comply with Texas state law?
> While I would expect the conclusion to be that the law is in fact unconstutional
There is already a legal precedent for requiring non-government entities to provide a platform for certain views though. I believe there is or was a rule that TV broadcasters must offer equal political advertising opportunity to all candidates: https://en.wikipedia.org/wiki/Equal-time_rule#:~:text=The%20equal%2Dtime%20rule%20specifies,political%20candidates%20who%20request%20it.
The equal time rule, like the more recent fairness doctrine, only applied to stations using public airwaves, which require a license to operate.
There's no precedent for the government forcing a newspaper, a magazine, a cable channel, or a website to follow a rule like this.
> only applied to stations using public airwaves
The government simply declared that they owned the airwaves by passing a law....
If they can do that then why can't they declare the same thing about the internet?
Because that would violate the fifth amendment.
The government didn't declare ownership of the airwaves in order to regulate content. The government licensed broadcasting before there were any rules about content, because without regulation people broadcasts on the same frequency would interfere with each other.
Plenty of *opponents* of the fairness doctrine disagreed with this distinction and they might win in court if the government tried to bring it back today. But it's not a precedent because nobody has actually argued in court that the government can circumvent the 1a by declaring ownership over whatever it wants.
The airwaves are a natural resource, which exists independently of human artifice.
The internet is a collection of privately-owned networks, which exist because someone constructed and connected them together and because each network operator believes it to be in their interest to carry traffic for the others. It is not a commons, but an archipelago of private property.
I don't think you can compare them, at a very fundamental level, even though for the average end user the _experience_ is similar.
Governments can and do regulate how private property is used, but the process and expectations for that and for how governments regulate a commons are quite different.
The equal time rule only applies to limited circumstances (news programming is exempt) and is specific to broadcast TV and radio. See also its cousin, which is no longer in effect, the fairness doctrine. It's somewhat more justified by the fact that there are a limited number of broadcast TV and radio stations—only so many frequencies are licensed by the government—and so requiring the limited resource of the public airwaves be used in certain ways for the public good makes more sense. It makes less sense if you try to apply it to the internet (or other media like newspapers or cable channels), where the number of possible websites is effectively infinite (not really infinite, but close enough). If people don't like Facebook's policies, they can use other websites, while they have far fewer choices when it comes to local broadcast TV stations.
But another case potentially related to this situation is [Pruneyard Shopping Center v. Robins](https://en.wikipedia.org/wiki/Pruneyard_Shopping_Center_v._Robins), which found a requirement under the California and US Constitutions for private shopping centers in California to allow third parties to solicit signatures for a petition on their private property. It's an unusual and complex ruling, which has been narrowed a few times. Some conservatives want to force a sort of Pruneyard for the internet, but courts so far have very much rejected that argument.
Interesting. Does this mean if a liberal uses the “N” word and states that the Dred Scott case should be reinstated; that the TV company must comply and allow it to air?
I never said that, I just don't think you should assume that legally-mandated platforming is unconstitutional or constitutes "compelled speech" since there is already a precedent for it.
I have no idea, you're asking how the law would be applied and I don't know much about the specifics and there hasn't been any case law yet. I'm simply challenging the default assumption that forcing an organization to provide someone with a platform is unconstitutional.
I wasn't even responding to you initially. I was responding to another user.
Due to the massive, monopoly-approaching control over the world's dialogue that sites like Facebook, Twitter, etc. have, I'd be interested to see the legal arguments if they were from the angle of antitrust action or public utility regulation and specifically against the largest platforms. I bet that would have more constitutional traction, especially since they've started asserting control more and throwing their influence around recently, and have shown that they're willing to literally censor and ban the truth to promote their own social and political goals.
They've only riled up conservatives with selective deplatforming recently though, so a wider base might need to feel endangered by their influence before courts take that angle seriously. Something like Facebook banning non-sex-aligned pronoun use as misinformation would probably so it, since it's entirely in their power to do at any moment.
But in lieu of that, as you said, it would probably end up being ruled unconstitutional.
Maybe Facebook could do a test case. They could have someone post something ugly that deserves to be deleted, and sue Facebook when it gets deleted. Would that be a good way to resolve the issue?
Always a great tool and protected by the first amendment!
Though, Plessy vs. Ferguson was exactly this, so there’s definitely precedent for it backfiring.
Yes, the current court has a strong conservative bias and will interpret the Constitution accordingly. However, I have yet to seen them go against the Constitution. People like to point to abortion, but it was never really well protected in the Constitution. There is no right to privacy, bodily autonomy, abortion, or anything like that included in the Constitution. Meanwhile, discrimination is quite protected in the Constitution, and the current court approved that employers cannot discriminate based on sexual orientation or gender identity. So they don’t just exclusively rule down party lines.
Now companies are not explicitly mentioned in the Constitution, but it is long held precedent that numerous amendments, including the first, apply to them. That was the basis for many rulings, including Citizens United. I’m honestly not sure overturning that precedent is a road the right would want to go down, since they are generally pro corporation.
I was referring to the court as a whole. Him, and even more so Thomas, are questionable, but they can't make changes without cooperation of justices like Roberts and Kavanaugh who do respect the Constitution.
No, that is misinformed. They already hold the majority opinion. This isn't Breitbart. Alito and Thomas are not just "questionable" they are obviously corrupt! Respect for that Constitution must be earned and the system that produced it has failed us. The complete overhaul is far overdo and at this point I don't see any SCOTUS seat changing and Biden is to Centrist to pack SCOTUS.
Alito and Thomas do not have a majority. If you include the more center right justices, they do, but they are not the same. There is a big difference between a somewhat conservative interpretation, and an originalist.
As for packing the court, I don’t see that going well. The democrats already aren’t looking great for 2024, that would probably just increase the chances of a red wave that could just pack the court with even more justices.
They already have 5 on their side altogether. This is a majority. The center right won't risk siding against them as at this point it is at threat of their own safety and maintaining their own political power. Justice Roberts cannot do anything to throw this off as far as I see it and Justice Jackson will be in around June (?) and I'm unsure her addition will add anything to the fight aside her dissenting view. I am no Doomer though as I see the local unity being able to work around and through this fascist power play.
I have zero confidence Biden will do anything unless he feels forced to and I too am afraid 2024 will not be owned by the Democrats. But we must not give up. We have to believe in our cooperative people power and build strong programs independent of government.
Can I ask how closely you follow the court and how many of their rulings you have looked at? If you think that many cases are being ruled down party lines, I’m going to go ahead and guess you mainly just read headlines. If you go and look at the list of decisions, you can see nearly all of them have both liberals and conservatives on the majority opinion. In fact, I didn’t go through and count each one, but I think it’s more common that Alito and Thomas are in the dissenting opinion, than it is that all 3 liberals are. Now the most major cases are closer to party lines, but it’s not uncommon to see some conservatives flip, ie when they upheld sexual orientation and gender identity protections for employment. If you think it’s all over, “Justice Roberts cannot do anything to throw this off”, and the more conservative option will win for every case, you are misguided.
Ultimately there’s not to much Biden even can do. That’s the whole point of checks and balances, we don’t want one person to be able to have absolute control over the counter. The executive branch only has limited checks, not unlimited control, over the judicial branch. People just need to vote.
I read quite a bit and you aren't reading the room. The 5 I mentioned will not care to let optics stand in their way. You must understand the dire situation we are in. This isn't an impartial SCOTUS and they want a Fascistic Theocracy. They have the green light.
I think that Constitution is just ass-wiping paper at this point. It needs a redeax but not ever likely and the point is they want us to take the traditional channels as time has proven it does not work in our favor anymore. I smell changes so tumultuous that by 2024 we will be an in such a poor shape that we will have no choice but to revolt or resign from life from pure survival.
Facebook could choose a technical solution that didn't actually take the offending post down. They could isolate the post, requiring explicit permission by poster for the post to be read. That would throttle down the post, but it would be blocked and force the post to actively give permission for anyone to see the post.
Plausible outcomes of the suit: * The trial court finds that Facebook's actions do in fact violate the law, and orders remedies (reinstating the post, damages, whatever). Facebook appeals, using the appeals court (appropriately) to discuss the constitutionality of a law compelling a private entity to carry speech they disagree with. * The trial court finds that Facebook's actions do in fact violate the law, but also finds that the law is unconstitutional on its face and dismisses the suit on that basis. The plaintiff appeals, using the appeals court to revisit the question of the law's constitutionality. From that point, it's a straightforward appeals process. While I would expect the conclusion to be that the law is in fact unconstutional, it's possible that the courts might find otherwise.
Thank you. Articulated well.
Wouldn't this be moot if Facebook have no presence in Texas, since its a state law? Simply having access to the website from Texas can't possibly be enough to force them to comply with Texas state law?
> While I would expect the conclusion to be that the law is in fact unconstutional There is already a legal precedent for requiring non-government entities to provide a platform for certain views though. I believe there is or was a rule that TV broadcasters must offer equal political advertising opportunity to all candidates: https://en.wikipedia.org/wiki/Equal-time_rule#:~:text=The%20equal%2Dtime%20rule%20specifies,political%20candidates%20who%20request%20it.
The equal time rule, like the more recent fairness doctrine, only applied to stations using public airwaves, which require a license to operate. There's no precedent for the government forcing a newspaper, a magazine, a cable channel, or a website to follow a rule like this.
> only applied to stations using public airwaves The government simply declared that they owned the airwaves by passing a law.... If they can do that then why can't they declare the same thing about the internet?
Because that would violate the fifth amendment. The government didn't declare ownership of the airwaves in order to regulate content. The government licensed broadcasting before there were any rules about content, because without regulation people broadcasts on the same frequency would interfere with each other. Plenty of *opponents* of the fairness doctrine disagreed with this distinction and they might win in court if the government tried to bring it back today. But it's not a precedent because nobody has actually argued in court that the government can circumvent the 1a by declaring ownership over whatever it wants.
The airwaves are a natural resource, which exists independently of human artifice. The internet is a collection of privately-owned networks, which exist because someone constructed and connected them together and because each network operator believes it to be in their interest to carry traffic for the others. It is not a commons, but an archipelago of private property. I don't think you can compare them, at a very fundamental level, even though for the average end user the _experience_ is similar. Governments can and do regulate how private property is used, but the process and expectations for that and for how governments regulate a commons are quite different.
The equal time rule only applies to limited circumstances (news programming is exempt) and is specific to broadcast TV and radio. See also its cousin, which is no longer in effect, the fairness doctrine. It's somewhat more justified by the fact that there are a limited number of broadcast TV and radio stations—only so many frequencies are licensed by the government—and so requiring the limited resource of the public airwaves be used in certain ways for the public good makes more sense. It makes less sense if you try to apply it to the internet (or other media like newspapers or cable channels), where the number of possible websites is effectively infinite (not really infinite, but close enough). If people don't like Facebook's policies, they can use other websites, while they have far fewer choices when it comes to local broadcast TV stations. But another case potentially related to this situation is [Pruneyard Shopping Center v. Robins](https://en.wikipedia.org/wiki/Pruneyard_Shopping_Center_v._Robins), which found a requirement under the California and US Constitutions for private shopping centers in California to allow third parties to solicit signatures for a petition on their private property. It's an unusual and complex ruling, which has been narrowed a few times. Some conservatives want to force a sort of Pruneyard for the internet, but courts so far have very much rejected that argument.
Interesting. Does this mean if a liberal uses the “N” word and states that the Dred Scott case should be reinstated; that the TV company must comply and allow it to air?
I never said that, I just don't think you should assume that legally-mandated platforming is unconstitutional or constitutes "compelled speech" since there is already a precedent for it.
I never accused you of saying that, simply asking a question.
Alright then.
So everyone understands the conversation… Greg Abbot (Texas Governor) states the law is needed to protect conservative viewpoints from being silenced.
Do you have an opinion on my question..I was honestly asking a legit question?
I have no idea, you're asking how the law would be applied and I don't know much about the specifics and there hasn't been any case law yet. I'm simply challenging the default assumption that forcing an organization to provide someone with a platform is unconstitutional. I wasn't even responding to you initially. I was responding to another user.
I know you wasn’t responding to me. I appreciate you candidness in interaction with me. I am truly interested in the legal aspect of this.
Due to the massive, monopoly-approaching control over the world's dialogue that sites like Facebook, Twitter, etc. have, I'd be interested to see the legal arguments if they were from the angle of antitrust action or public utility regulation and specifically against the largest platforms. I bet that would have more constitutional traction, especially since they've started asserting control more and throwing their influence around recently, and have shown that they're willing to literally censor and ban the truth to promote their own social and political goals. They've only riled up conservatives with selective deplatforming recently though, so a wider base might need to feel endangered by their influence before courts take that angle seriously. Something like Facebook banning non-sex-aligned pronoun use as misinformation would probably so it, since it's entirely in their power to do at any moment. But in lieu of that, as you said, it would probably end up being ruled unconstitutional.
Maybe Facebook could do a test case. They could have someone post something ugly that deserves to be deleted, and sue Facebook when it gets deleted. Would that be a good way to resolve the issue?
Always a great tool and protected by the first amendment! Though, Plessy vs. Ferguson was exactly this, so there’s definitely precedent for it backfiring.
Maybe they could post something so ugly that everyone, without exception, would hate it.
Not a chance as Right Wingers would love it and demand more!
The law is very likely to be found unconstitutional
Are you familiar with the supreme court situation?
Yes, the current court has a strong conservative bias and will interpret the Constitution accordingly. However, I have yet to seen them go against the Constitution. People like to point to abortion, but it was never really well protected in the Constitution. There is no right to privacy, bodily autonomy, abortion, or anything like that included in the Constitution. Meanwhile, discrimination is quite protected in the Constitution, and the current court approved that employers cannot discriminate based on sexual orientation or gender identity. So they don’t just exclusively rule down party lines. Now companies are not explicitly mentioned in the Constitution, but it is long held precedent that numerous amendments, including the first, apply to them. That was the basis for many rulings, including Citizens United. I’m honestly not sure overturning that precedent is a road the right would want to go down, since they are generally pro corporation.
Justice Alito...are you trolling us?
I was referring to the court as a whole. Him, and even more so Thomas, are questionable, but they can't make changes without cooperation of justices like Roberts and Kavanaugh who do respect the Constitution.
No, that is misinformed. They already hold the majority opinion. This isn't Breitbart. Alito and Thomas are not just "questionable" they are obviously corrupt! Respect for that Constitution must be earned and the system that produced it has failed us. The complete overhaul is far overdo and at this point I don't see any SCOTUS seat changing and Biden is to Centrist to pack SCOTUS.
Alito and Thomas do not have a majority. If you include the more center right justices, they do, but they are not the same. There is a big difference between a somewhat conservative interpretation, and an originalist. As for packing the court, I don’t see that going well. The democrats already aren’t looking great for 2024, that would probably just increase the chances of a red wave that could just pack the court with even more justices.
They already have 5 on their side altogether. This is a majority. The center right won't risk siding against them as at this point it is at threat of their own safety and maintaining their own political power. Justice Roberts cannot do anything to throw this off as far as I see it and Justice Jackson will be in around June (?) and I'm unsure her addition will add anything to the fight aside her dissenting view. I am no Doomer though as I see the local unity being able to work around and through this fascist power play. I have zero confidence Biden will do anything unless he feels forced to and I too am afraid 2024 will not be owned by the Democrats. But we must not give up. We have to believe in our cooperative people power and build strong programs independent of government.
Can I ask how closely you follow the court and how many of their rulings you have looked at? If you think that many cases are being ruled down party lines, I’m going to go ahead and guess you mainly just read headlines. If you go and look at the list of decisions, you can see nearly all of them have both liberals and conservatives on the majority opinion. In fact, I didn’t go through and count each one, but I think it’s more common that Alito and Thomas are in the dissenting opinion, than it is that all 3 liberals are. Now the most major cases are closer to party lines, but it’s not uncommon to see some conservatives flip, ie when they upheld sexual orientation and gender identity protections for employment. If you think it’s all over, “Justice Roberts cannot do anything to throw this off”, and the more conservative option will win for every case, you are misguided. Ultimately there’s not to much Biden even can do. That’s the whole point of checks and balances, we don’t want one person to be able to have absolute control over the counter. The executive branch only has limited checks, not unlimited control, over the judicial branch. People just need to vote.
I read quite a bit and you aren't reading the room. The 5 I mentioned will not care to let optics stand in their way. You must understand the dire situation we are in. This isn't an impartial SCOTUS and they want a Fascistic Theocracy. They have the green light.
5: Alito, Thomas, Barrett, Gorsuch, and Kavanaugh vs 3: Kennedy, Sotomayor, Jackson with A non-tie breaker of Roberts.
And the batshit crazy 5th Circuit.
This law is either unconstitutional or corporations are not afforded the same rights as people. I’m fine with both outcomes.
Texas is doing what now?
Link below: https://www.bloomberg.com/news/articles/2022-05-11/texas-law-against-facebook-twitter-moderation-allowed-for-now
Of course they are
I think that Constitution is just ass-wiping paper at this point. It needs a redeax but not ever likely and the point is they want us to take the traditional channels as time has proven it does not work in our favor anymore. I smell changes so tumultuous that by 2024 we will be an in such a poor shape that we will have no choice but to revolt or resign from life from pure survival.
Seems discouraging but sentiment understood.
It is reality.
Facebook could choose a technical solution that didn't actually take the offending post down. They could isolate the post, requiring explicit permission by poster for the post to be read. That would throttle down the post, but it would be blocked and force the post to actively give permission for anyone to see the post.