Moderation Is Censorship, Sayeth The Fifth Circuit
September 17, 2022 3:56 PM Subscribe
In a ruling that has left the legal commentariat in confusion and befuddlement, the Fifth Circuit Court of Appeals has ruled in favor of Texas in the lawsuit by NetChoice and other online service providers over the state's new social media law.
What has caused both surprise and shock by legal commentators is the court's logic in doing so, fundamentally arguing that private entities are obliged to provide a platform to anyone regardless of their viewpoint - a position that fundamentally rewrites the First Amendment and its protections.
What has caused both surprise and shock by legal commentators is the court's logic in doing so, fundamentally arguing that private entities are obliged to provide a platform to anyone regardless of their viewpoint - a position that fundamentally rewrites the First Amendment and its protections.
It is strange as I think I heard, corporations have rights as individuals. If that is so, can't they say they won't tolerate dirty jokes, lies, defamation, misrepresentation , threats, defenestration, racial hatred, and bullying at their "dinner table?"
posted by Oyéah at 4:12 PM on September 17, 2022 [9 favorites]
posted by Oyéah at 4:12 PM on September 17, 2022 [9 favorites]
It is really telling that Facebook and Twitter have been the most effective platforms in history for propagating conservative speech, yet conservatives are still playing the grift that they are being censored by these platforms
posted by Jon_Evil at 4:14 PM on September 17, 2022 [95 favorites]
posted by Jon_Evil at 4:14 PM on September 17, 2022 [95 favorites]
"The Florida law, as enacted, would give Florida's attorney general authority to sue companies under the state's Deceptive and Unfair Trade Practices Act. It would also allow individual residents to sue social media companies for up to $100,000 if they feel they have been treated unfairly."
Lawyer Largesse Lobby Launch: Larger Lexicons Loom.
posted by clavdivs at 4:30 PM on September 17, 2022 [6 favorites]
Lawyer Largesse Lobby Launch: Larger Lexicons Loom.
posted by clavdivs at 4:30 PM on September 17, 2022 [6 favorites]
It is strange as I think I heard, corporations have rights as individuals. If that is so, can't they say they won't tolerate dirty jokes, lies, defamation, misrepresentation , threats, defenestration, racial hatred, and bullying at their "dinner table?"
The ruling is the 5CA literally arguing how doing so is "censorship" and that there is no right to do so.
posted by NoxAeternum at 4:38 PM on September 17, 2022
The ruling is the 5CA literally arguing how doing so is "censorship" and that there is no right to do so.
posted by NoxAeternum at 4:38 PM on September 17, 2022
Two cases in particular come to mind:
1. Google/Gmail have spam filters. Current GOP fundraising strategy looks like the spammiest spam to ever spam. Arguably this is playing off the same logic Microsoft discovered, where scam-spam tends to intentionally provide signals of "do not trust this, this is a scam and you will lose all your money", because if your audience is dissuaded by that they aren't your audience (and whoever plows forward eager to still give you money is a perfect mark). Google spam-filters these. Cue wailing and gnashing.
2. Twitter needs to filter out neo-Nazis. (yes, I know, but since they operate in Germany that's kinda important there, by law) They also need to filter out ISIS, and other extremists. So what do they do? Build a classification/detection system. After all, with as much data as they have it should be possible, right? And it works! (reportedly) But now there's a problem. All these GOP politicians & luminaries have a *significant* portion of their audience who's detected by this system. That's not acceptable, as said politicians & luminaries are already shouting whenever they think they've been mysteriously shadowbanned or if bot ban waves happen. So... nothing doing, here.
I often wish tech companies were a fraction as Left as the boogieman versions Fox News et al make them out to be. It's not like they have any further to go with their rhetoric, Google is a Communist cadre training employees in the writings of Mao as far as they're concerned.
posted by CrystalDave at 4:38 PM on September 17, 2022 [19 favorites]
1. Google/Gmail have spam filters. Current GOP fundraising strategy looks like the spammiest spam to ever spam. Arguably this is playing off the same logic Microsoft discovered, where scam-spam tends to intentionally provide signals of "do not trust this, this is a scam and you will lose all your money", because if your audience is dissuaded by that they aren't your audience (and whoever plows forward eager to still give you money is a perfect mark). Google spam-filters these. Cue wailing and gnashing.
2. Twitter needs to filter out neo-Nazis. (yes, I know, but since they operate in Germany that's kinda important there, by law) They also need to filter out ISIS, and other extremists. So what do they do? Build a classification/detection system. After all, with as much data as they have it should be possible, right? And it works! (reportedly) But now there's a problem. All these GOP politicians & luminaries have a *significant* portion of their audience who's detected by this system. That's not acceptable, as said politicians & luminaries are already shouting whenever they think they've been mysteriously shadowbanned or if bot ban waves happen. So... nothing doing, here.
I often wish tech companies were a fraction as Left as the boogieman versions Fox News et al make them out to be. It's not like they have any further to go with their rhetoric, Google is a Communist cadre training employees in the writings of Mao as far as they're concerned.
posted by CrystalDave at 4:38 PM on September 17, 2022 [19 favorites]
can't they say they won't tolerate dirty jokes, lies, defamation, misrepresentation , threats, defenestration, racial hatred, and bullying at their "dinner table?"
Yes, they absolutely can. There's supreme court precedent on it and everything- the government generally can't compel corporations to publish speech (there may be some very specific exceptions).
This is why the fifth circuit decision is so bananas.
posted by BungaDunga at 4:40 PM on September 17, 2022 [29 favorites]
Yes, they absolutely can. There's supreme court precedent on it and everything- the government generally can't compel corporations to publish speech (there may be some very specific exceptions).
This is why the fifth circuit decision is so bananas.
posted by BungaDunga at 4:40 PM on September 17, 2022 [29 favorites]
This is shit-house nuts. And if it remains as a precedent than Facebook, Google etc. will take the easy way out and simply block Texan IPs. So good job building your own Great Firewall, you flock of utter tinpot wannabe autocrats.
posted by The Pluto Gangsta at 4:45 PM on September 17, 2022 [27 favorites]
posted by The Pluto Gangsta at 4:45 PM on September 17, 2022 [27 favorites]
Clarence Thomas will again say that human law must be based on divine law and suggest that lightning didn't strike anyone dead, so no problem. God is their moderator.
posted by Brian B. at 4:45 PM on September 17, 2022 [7 favorites]
posted by Brian B. at 4:45 PM on September 17, 2022 [7 favorites]
I suppose the new Steering Committee had best cap MeFi membership at 49,999 members?
posted by The Pluto Gangsta at 4:56 PM on September 17, 2022 [21 favorites]
posted by The Pluto Gangsta at 4:56 PM on September 17, 2022 [21 favorites]
Facebook, Google etc. will take the easy way out and simply block Texan IPs
The Texas legislature thought of that:
The Texas legislature thought of that:
Sec. 143A.002. CENSORSHIP PROHIBITED. (a) A social media platform may not censor a user, a user's expression, or a user's ability to receive the expression of another person based on... a user's geographic location in this state or any part of this state.posted by BungaDunga at 5:06 PM on September 17, 2022 [3 favorites]
A ruling from a very impartial set of judges, comprising Andrew Oldham, previously general counsel to Greg Abbott and clerk for Samuel Alito; Edith Jones, previously general counsel for the Republican Party of Texas, who had an ethics complain filed against her in 2013 for allegedly making racist remarks during a speech to the UPenn Federalist Society; and Leslie Southwick, whose nomination to the 5th circuit was fiercely opposed by progressive groups due to a history of racist and homophobic rulings as a state judge (to his credit, he largely dissented in this case). Nominated by Trump, Reagan, and Bush II, respectively.
posted by dephlogisticated at 5:09 PM on September 17, 2022 [22 favorites]
posted by dephlogisticated at 5:09 PM on September 17, 2022 [22 favorites]
Refereeing sports is censorship!
posted by xurizaemon at 5:10 PM on September 17, 2022 [13 favorites]
posted by xurizaemon at 5:10 PM on September 17, 2022 [13 favorites]
The Texas legislature thought of that
But, wouldn’t this just ensure that no companies impacted by this would do business in Texas? How does this impact how a California or German company does business?
posted by snofoam at 5:10 PM on September 17, 2022 [11 favorites]
But, wouldn’t this just ensure that no companies impacted by this would do business in Texas? How does this impact how a California or German company does business?
posted by snofoam at 5:10 PM on September 17, 2022 [11 favorites]
Another reason for tech companies to nope out of Texas. They just created an untenable business situation. Live in Texas? No social media for you.
posted by Revvy at 5:11 PM on September 17, 2022 [7 favorites]
posted by Revvy at 5:11 PM on September 17, 2022 [7 favorites]
Does this mean Stormfront must carry posts supporting Critical Race Theory?
posted by GhostintheMachine at 5:20 PM on September 17, 2022 [77 favorites]
posted by GhostintheMachine at 5:20 PM on September 17, 2022 [77 favorites]
In some ways I wish they believed the crap they're spewing, at least then society could engage with it and understand actual rules.of the road. This shit is just all ideological claptrap, supporting the outcomes they want with just a howling void behind it. I see a lot of people talk about this is what this means going forward as if they won't rule contradictorily as soon as it suits their interests.
posted by Carillon at 5:27 PM on September 17, 2022 [31 favorites]
posted by Carillon at 5:27 PM on September 17, 2022 [31 favorites]
article:
"it would also allow individual residents to sue social media companies for up to $100,000 if they feel they have been treated unfairly."
Seriously, how in the blazes would this work. Is this in trade/copyright practice or can Demondude@flitter#burger sue for defamation over a Yelp review.
posted by clavdivs at 5:32 PM on September 17, 2022 [5 favorites]
"it would also allow individual residents to sue social media companies for up to $100,000 if they feel they have been treated unfairly."
Seriously, how in the blazes would this work. Is this in trade/copyright practice or can Demondude@flitter#burger sue for defamation over a Yelp review.
posted by clavdivs at 5:32 PM on September 17, 2022 [5 favorites]
On this post, if you're not logged in, is an ad for Parler.
posted by johnofjack at 5:35 PM on September 17, 2022 [7 favorites]
posted by johnofjack at 5:35 PM on September 17, 2022 [7 favorites]
Progressive in Texas with an (obscure) blog. Turning off comments entirely, now. Moving hosting to Iceland tomorrow.
posted by sourcequench at 5:39 PM on September 17, 2022 [50 favorites]
posted by sourcequench at 5:39 PM on September 17, 2022 [50 favorites]
But, wouldn’t this just ensure that no companies impacted by this would do business in Texas? How does this impact how a California or German company does business?
Which is one of the issues at hand. The law is, essentially, trapping social media companies into either violating Texas law by moderating certain types of blatantly offensive content or violating EU law by not moderating the same types of blatantly offensive content.
How does one decide whether a user resides in Texas, does business in Texas, etc., in a world where VPNs exist, and where certain judges are ignorant (willfully or not) of how and why they operate? Does an old-school adult site "By clicking LOG ON, you are affirming that you are not a resident of any area whose laws and/or community standards would prohibit access" banner qualify as reasonable doubt, or are stricter standards applicable (or even possible)? And if judges decide to play Calvinball with rhyme and reason thereof, as is often their want, all bets are off.
The intent, of course, is to simply drown these sites in overwhelming waves of complaints, hearings, appeals, written notices, lawsuits and injunctions until they are bullied into allowing MAGAworld unfettered access. There is no sane way to do that in a global marketplace and remain in business, and thus no way that the "no social media company can censor based on location in Texas" provision can be upheld. But, alas, sanity is no longer a requirement for the law. Some would argue that it never has been.
posted by delfin at 5:50 PM on September 17, 2022 [13 favorites]
Which is one of the issues at hand. The law is, essentially, trapping social media companies into either violating Texas law by moderating certain types of blatantly offensive content or violating EU law by not moderating the same types of blatantly offensive content.
How does one decide whether a user resides in Texas, does business in Texas, etc., in a world where VPNs exist, and where certain judges are ignorant (willfully or not) of how and why they operate? Does an old-school adult site "By clicking LOG ON, you are affirming that you are not a resident of any area whose laws and/or community standards would prohibit access" banner qualify as reasonable doubt, or are stricter standards applicable (or even possible)? And if judges decide to play Calvinball with rhyme and reason thereof, as is often their want, all bets are off.
The intent, of course, is to simply drown these sites in overwhelming waves of complaints, hearings, appeals, written notices, lawsuits and injunctions until they are bullied into allowing MAGAworld unfettered access. There is no sane way to do that in a global marketplace and remain in business, and thus no way that the "no social media company can censor based on location in Texas" provision can be upheld. But, alas, sanity is no longer a requirement for the law. Some would argue that it never has been.
posted by delfin at 5:50 PM on September 17, 2022 [13 favorites]
Live in Texas? No social media for you.
As nice as that sounds, I do hope that the people legislating this baloney posture themselves into oblivion and get voted out. It is better that they alienate themselves from actual people by this stuff rather than things that are more important, like right to choose.
posted by snofoam at 5:52 PM on September 17, 2022
As nice as that sounds, I do hope that the people legislating this baloney posture themselves into oblivion and get voted out. It is better that they alienate themselves from actual people by this stuff rather than things that are more important, like right to choose.
posted by snofoam at 5:52 PM on September 17, 2022
Why are they so hasty to curtail speech at schools and libraries, but not on the web? Does it mean you can break the law, cry fire in a crowded theater? Talk your heads off about national secrets, sell snake oil? I know some other nations who will be delighted to spew their views, 24 / 7.
posted by Oyéah at 6:06 PM on September 17, 2022 [14 favorites]
posted by Oyéah at 6:06 PM on September 17, 2022 [14 favorites]
I really don't understand what they think this law means for people who post horrible and or illegal material
posted by Jacen at 6:06 PM on September 17, 2022 [3 favorites]
posted by Jacen at 6:06 PM on September 17, 2022 [3 favorites]
The law is, essentially, trapping social media companies into either violating Texas law by moderating certain types of blatantly offensive content or violating EU law by not moderating the same types of blatantly offensive content.
But can you sue a company that does not operate at all in your jurisdiction?
Eg say if Tesla does not sell a single car in Australia, and also does not purchase any material or components from Australia. Does not have any employees in Australia, any business presence whatsoever.
Can an Australian court sue Tesla for "not" selling cars in Australia, and have any chance of winning?
I think the Texan courts would have just about the same chance of success of suing Google or Facebook for pulling out of Texas if their rules are to onerous to comply with.
posted by xdvesper at 6:11 PM on September 17, 2022 [2 favorites]
But can you sue a company that does not operate at all in your jurisdiction?
Eg say if Tesla does not sell a single car in Australia, and also does not purchase any material or components from Australia. Does not have any employees in Australia, any business presence whatsoever.
Can an Australian court sue Tesla for "not" selling cars in Australia, and have any chance of winning?
I think the Texan courts would have just about the same chance of success of suing Google or Facebook for pulling out of Texas if their rules are to onerous to comply with.
posted by xdvesper at 6:11 PM on September 17, 2022 [2 favorites]
I really don't understand what they think this law means for people who post horrible and or illegal material
The answer is trivially simple. Selective enforcement. When Truth Social gets 50M users and would have to adhere to the law, they'll find an excuse not to enforce the law against it. I'm honestly surprised that anyone thinks these things are driven by a coherent ideological or ethical framework other than "Equal protection means you are free to do what we want, and likewise we are free to do what we want."
posted by tclark at 6:15 PM on September 17, 2022 [60 favorites]
The answer is trivially simple. Selective enforcement. When Truth Social gets 50M users and would have to adhere to the law, they'll find an excuse not to enforce the law against it. I'm honestly surprised that anyone thinks these things are driven by a coherent ideological or ethical framework other than "Equal protection means you are free to do what we want, and likewise we are free to do what we want."
posted by tclark at 6:15 PM on September 17, 2022 [60 favorites]
But can you sue a company that does not operate at all in your jurisdiction?
So, there's a longstanding principle for determining this called the doctrine of minimum contacts, as this argument has been made in the courts long before the internet was a thing. And the reality is that under this, you pretty much have to completely disengage from a jurisdiction to not fall under it.
posted by NoxAeternum at 6:16 PM on September 17, 2022 [4 favorites]
So, there's a longstanding principle for determining this called the doctrine of minimum contacts, as this argument has been made in the courts long before the internet was a thing. And the reality is that under this, you pretty much have to completely disengage from a jurisdiction to not fall under it.
posted by NoxAeternum at 6:16 PM on September 17, 2022 [4 favorites]
This ruling makes sense if you realize that for the alt-right, words are not meant as tools for communication or reasoning, they are merely animal screams that are a prelude to utterances in their true language: violence. They do not in fact have any rhetoric so nothing they say can be contradictory, they care about force and the violent application thereof. They'll use this violence to destroy Twitter as a platform for non-fascist speech, and they'll use violence if anyone tries to use this ruling to overwhelm a fascist platform. They see no issue with this ruling because there is no issue with it for them... if someone tries to turn it against them, they'll just respond with increased violence. There is no point in wasting time trying to make sense of it legally or ethically or in any way that you comprehend the world. At a fundamental level that is totally incommensurate with our worldview, they do not see things that way. Until we recognize that and respond in kind, they'll keep winning.
posted by lefty lucky cat at 6:17 PM on September 17, 2022 [75 favorites]
posted by lefty lucky cat at 6:17 PM on September 17, 2022 [75 favorites]
The law is, essentially, trapping social media companies into either violating Texas law by moderating certain types of blatantly offensive content or violating EU law by not moderating the same types of blatantly offensive content.
Yes, the courts are openly employing the strategy of criminalize everything, technically, then give "our side" a pass every time it comes up. Yeah, this technically applies to Parler, et al. Inexplicably, they will win resulting lawsuits though, while others won't.
posted by ctmf at 6:22 PM on September 17, 2022 [15 favorites]
Yes, the courts are openly employing the strategy of criminalize everything, technically, then give "our side" a pass every time it comes up. Yeah, this technically applies to Parler, et al. Inexplicably, they will win resulting lawsuits though, while others won't.
posted by ctmf at 6:22 PM on September 17, 2022 [15 favorites]
Less than two months until I’m out of Texas and back home in Boston. Counting the days.
Part of me wants to stay and fight, but honestly fuck that noise. While I don’t believe that replying to violence with violence is the right answer, I do agree with lefty lucky cat above that at this point engagement is utterly futile.
posted by Ryvar at 6:25 PM on September 17, 2022 [12 favorites]
Part of me wants to stay and fight, but honestly fuck that noise. While I don’t believe that replying to violence with violence is the right answer, I do agree with lefty lucky cat above that at this point engagement is utterly futile.
posted by Ryvar at 6:25 PM on September 17, 2022 [12 favorites]
I think the legal system, under influence of the Federalist squad, has slowly been embracing the "we don't provide justice, we provide the illusion of justice to keep the masses mollified". And asking themselves, how little actual justice does it take to accomplish that. The answer is always "less".
And if they accidentally go too low, then no big. They prefer a contradictory mix of wild west "you're on your own" and a dictatorship anyway.
posted by ctmf at 6:28 PM on September 17, 2022 [11 favorites]
And if they accidentally go too low, then no big. They prefer a contradictory mix of wild west "you're on your own" and a dictatorship anyway.
posted by ctmf at 6:28 PM on September 17, 2022 [11 favorites]
It's worth noting that the 5CA literally chastised the plaintiffs for properly applying SCOTUS precedent.
posted by NoxAeternum at 6:57 PM on September 17, 2022 [23 favorites]
posted by NoxAeternum at 6:57 PM on September 17, 2022 [23 favorites]
Equal protection means you are free to do what we want, and likewise we are free to do what we want."
Ho-ly shit. So, this is law drafting/enacting separating principals based on language under the guise of free speech.
posted by clavdivs at 7:02 PM on September 17, 2022 [3 favorites]
Ho-ly shit. So, this is law drafting/enacting separating principals based on language under the guise of free speech.
posted by clavdivs at 7:02 PM on September 17, 2022 [3 favorites]
How self-sustaining is this kind of behavior? I've always been told (especially when there are rulings striking down well-intentioned progressive programs) that the law is a complicated web of interdependencies and relationships that must be satisfied and as much as we'd all like judges to rule a particular way, they're hamstrung by precedent and must carefully construct their opinions so as not to create terrible, unintended consequences.
How can a bunch of conservatives create a crazy-ass ruling like this out of whole cloth without causing our entire legal system to explode in a cloud of contradictions? Or is this yet another area where conservatives just get a pass to do whatever the hell they want?
posted by RonButNotStupid at 7:02 PM on September 17, 2022 [12 favorites]
How can a bunch of conservatives create a crazy-ass ruling like this out of whole cloth without causing our entire legal system to explode in a cloud of contradictions? Or is this yet another area where conservatives just get a pass to do whatever the hell they want?
posted by RonButNotStupid at 7:02 PM on September 17, 2022 [12 favorites]
Once again, the hypocrisy is the point. Lefties miss this again and again. Authoritarians rule by fiat, not logic.
posted by seanmpuckett at 7:10 PM on September 17, 2022 [50 favorites]
posted by seanmpuckett at 7:10 PM on September 17, 2022 [50 favorites]
Yes, I know that.
My question is, how much hypocrisy can the system tolerate before it loses legitimacy? This ruling has real, day-to-day implications and unintended consequences galore. How long can these people just keep setting fire to precedent before the system becomes an unmanageable mess of fiats, exceptions, and carve-outs?
posted by RonButNotStupid at 7:31 PM on September 17, 2022 [10 favorites]
My question is, how much hypocrisy can the system tolerate before it loses legitimacy? This ruling has real, day-to-day implications and unintended consequences galore. How long can these people just keep setting fire to precedent before the system becomes an unmanageable mess of fiats, exceptions, and carve-outs?
posted by RonButNotStupid at 7:31 PM on September 17, 2022 [10 favorites]
Not only is the hypocrisy the point, but in the long term it results in nobody trusting the courts, and rule by power being the law of the land. Which works for the old white dudes who are in power, and who will manipulate the systems to keep themselves in power.
If you can't trust the courts to protect basic rights, you won't use them. And that's basically where we are already: nobody who loses a case protecting civil rights in TX wants to appeal to the 5th Circuit because they're all Trumpists, and after that it's SCOTUS, who will also rule against you.
I think a lot of lawyers who trusted that facts applied to a structured set of legal principles would protect us are feeling pretty fucking lousy these days.
posted by suelac at 7:32 PM on September 17, 2022 [17 favorites]
If you can't trust the courts to protect basic rights, you won't use them. And that's basically where we are already: nobody who loses a case protecting civil rights in TX wants to appeal to the 5th Circuit because they're all Trumpists, and after that it's SCOTUS, who will also rule against you.
I think a lot of lawyers who trusted that facts applied to a structured set of legal principles would protect us are feeling pretty fucking lousy these days.
posted by suelac at 7:32 PM on September 17, 2022 [17 favorites]
I'm curious. Did no one mention Adolph Hitler or the KKK? The social media companies would be obligated to carry any bullshit they generated as well?
posted by CheeseDigestsAll at 7:36 PM on September 17, 2022 [1 favorite]
posted by CheeseDigestsAll at 7:36 PM on September 17, 2022 [1 favorite]
I keep wondering how far we are from everyone just saying ‘fuck it’ and ignoring any and all law. Rulings like this just seem to be pushing the country toward what passes for law simply imploding.
posted by Thorzdad at 8:10 PM on September 17, 2022 [10 favorites]
posted by Thorzdad at 8:10 PM on September 17, 2022 [10 favorites]
CheeseDigestsAll, the 5CA decision brings that up, but dismisses it as the Plaintiffs bringing up "whataboutisms" - extreme examples that (the court says) haven't yet occurred in fact. Their stance on this is that you can't use these to block the law. You have to let it go into effect, and then deal with what happens when a Nazi sues for their speech being censored. I see absolutely nothing in the reasoning in the rest of the decision, however, that would protect the social media companies if they were to censor Nazi speech.
What I find most chilling about this is that it's "smart evil" - there's a real argument being made here, even though it's disingenuous and crafted to provide the Trumpist judges' preferred political result. As opposed to the "dumb evil" that is much more transparent, like Cannon's rulings with the special master.
posted by Chanther at 8:14 PM on September 17, 2022 [5 favorites]
What I find most chilling about this is that it's "smart evil" - there's a real argument being made here, even though it's disingenuous and crafted to provide the Trumpist judges' preferred political result. As opposed to the "dumb evil" that is much more transparent, like Cannon's rulings with the special master.
posted by Chanther at 8:14 PM on September 17, 2022 [5 favorites]
I’d like to see Google and Facebook close their large Austin offices.
posted by Abehammerb Lincoln at 8:25 PM on September 17, 2022 [8 favorites]
posted by Abehammerb Lincoln at 8:25 PM on September 17, 2022 [8 favorites]
Do they not know that most moderated content on these sites is child porn and the type of things they’re having fits about? I have read enough horrors of being a content moderator to know that these people are actively protesting that everything getting moderated off is something they’ve held signs to protest against. My brain feels like it’s breaking. Do they just genuinely not know what gets moderated out?
posted by Bottlecap at 8:29 PM on September 17, 2022 [22 favorites]
posted by Bottlecap at 8:29 PM on September 17, 2022 [22 favorites]
A significant number of them want child porn to be freely available online. The scariest of them think this is a reasonable political position.
posted by Faint of Butt at 8:40 PM on September 17, 2022 [3 favorites]
posted by Faint of Butt at 8:40 PM on September 17, 2022 [3 favorites]
How can a bunch of conservatives create a crazy-ass ruling like this out of whole cloth without causing our entire legal system to explode in a cloud of contradictions?
They can't.
This is not a workable precedent. They simply plan to make a different ruling that suits them when they have a different case. Left-liberals trying to post CRT will be found to be violating some other principle that wasn't talked about here. Once you show utter indifference to precedent, you don't need to worry to much about the impact of your decisions.
On the other hand note the NPR framing. It's just another decision and it will appropriately settled by appeals. The supporters of court legitimacy are really invested in the idea. If it is overturned (and I think it will be), it will be used as evidence that the people panicking are wrong and the Supreme Court remains a sound, non-partisan legal body.
The part of my brain that is analytical (as opposed to outraged, fatigued, etc.) is noting that this isn't even a fundamentally pro-right-wing issue. It limits the power of rich people and corporations. It just happens to be something cable news is pissed off about currently.
I was looking for another write up on this case, but this twitter thread on the difference between Trump and "Trumpist" judges is the second best bit on it I read.
posted by mark k at 8:42 PM on September 17, 2022 [17 favorites]
They can't.
This is not a workable precedent. They simply plan to make a different ruling that suits them when they have a different case. Left-liberals trying to post CRT will be found to be violating some other principle that wasn't talked about here. Once you show utter indifference to precedent, you don't need to worry to much about the impact of your decisions.
On the other hand note the NPR framing. It's just another decision and it will appropriately settled by appeals. The supporters of court legitimacy are really invested in the idea. If it is overturned (and I think it will be), it will be used as evidence that the people panicking are wrong and the Supreme Court remains a sound, non-partisan legal body.
The part of my brain that is analytical (as opposed to outraged, fatigued, etc.) is noting that this isn't even a fundamentally pro-right-wing issue. It limits the power of rich people and corporations. It just happens to be something cable news is pissed off about currently.
I was looking for another write up on this case, but this twitter thread on the difference between Trump and "Trumpist" judges is the second best bit on it I read.
posted by mark k at 8:42 PM on September 17, 2022 [17 favorites]
I hope I can still access social media from Texas next week. HHOS. (And yes I've voted against these folks every time I could since the 80s when I became eligible to vote.)
posted by gentlyepigrams at 9:06 PM on September 17, 2022 [2 favorites]
posted by gentlyepigrams at 9:06 PM on September 17, 2022 [2 favorites]
This seems like the kind of thing that would obviously be reversed on rehearing before the full circuit panel. I expect the supreme court would prefer that than having to be the ones to reverse this.
posted by 3j0hn at 9:17 PM on September 17, 2022
posted by 3j0hn at 9:17 PM on September 17, 2022
As Jean-Paul Sartre said of conservative fascists in 1944:
"Never believe that anti-Semites are completely unaware of the absurdity of their replies. They know that their remarks are frivolous, open to challenge. But they are amusing themselves, for it is their adversary who is obliged to use words responsibly, since he believes in words. The anti-Semites have the right to play. They even like to play with discourse for, by giving ridiculous reasons, they discredit the seriousness of their interlocutors. They delight in acting in bad faith, since they seek not to persuade by sound argument but to intimidate and disconcert. If you press them too closely, they will abruptly fall silent, loftily indicating by some phrase that the time for argument is past."
posted by AlSweigart at 9:20 PM on September 17, 2022 [66 favorites]
"Never believe that anti-Semites are completely unaware of the absurdity of their replies. They know that their remarks are frivolous, open to challenge. But they are amusing themselves, for it is their adversary who is obliged to use words responsibly, since he believes in words. The anti-Semites have the right to play. They even like to play with discourse for, by giving ridiculous reasons, they discredit the seriousness of their interlocutors. They delight in acting in bad faith, since they seek not to persuade by sound argument but to intimidate and disconcert. If you press them too closely, they will abruptly fall silent, loftily indicating by some phrase that the time for argument is past."
posted by AlSweigart at 9:20 PM on September 17, 2022 [66 favorites]
extreme examples that (the court says) haven't yet occurred in fact.
OFFS, they should be able to copy and paste from old Stormfront archives -- or Parler and Truth Social for that matter -- to come up with direct examples of vile "political" speech that companies have a real interest in not promulgating.
posted by CheeseDigestsAll at 9:21 PM on September 17, 2022 [5 favorites]
OFFS, they should be able to copy and paste from old Stormfront archives -- or Parler and Truth Social for that matter -- to come up with direct examples of vile "political" speech that companies have a real interest in not promulgating.
posted by CheeseDigestsAll at 9:21 PM on September 17, 2022 [5 favorites]
This seems like the kind of thing that would obviously be reversed on rehearing before the full circuit panel.
So what's the next step here? Like, if we war-game this out a bit, what's actually likely to occur?
The circuit justice for the 5th Cir. is apparently Alito, and the article notes that there's already some sort of stay on enforcement of the Texas law pending the 5th Circuit's decision.
I would guess that NetChoice has to file a cert petition with Alito's office, and then he would need to (rather promptly, one presumes) re-up whatever stay of enforcement is currently in place (which it seems like he can do independently), until the entire Court can vote on the petition in conference?
The new Court term starts in early October, but I'm not clear when they actually vote on new petitions; is the docket basically set at this point? And if so, what happens then? Does it just wait, with enforcement stayed, potentially for a year? That seems less than optimal. Although if that's really what happens, it gives the big tech companies some significant runway to start working through their collective rolodexes and letting Important People in Texas know (mafioso voice) how damaging this might be for business in the state.
posted by Kadin2048 at 10:30 PM on September 17, 2022 [3 favorites]
So what's the next step here? Like, if we war-game this out a bit, what's actually likely to occur?
The circuit justice for the 5th Cir. is apparently Alito, and the article notes that there's already some sort of stay on enforcement of the Texas law pending the 5th Circuit's decision.
I would guess that NetChoice has to file a cert petition with Alito's office, and then he would need to (rather promptly, one presumes) re-up whatever stay of enforcement is currently in place (which it seems like he can do independently), until the entire Court can vote on the petition in conference?
The new Court term starts in early October, but I'm not clear when they actually vote on new petitions; is the docket basically set at this point? And if so, what happens then? Does it just wait, with enforcement stayed, potentially for a year? That seems less than optimal. Although if that's really what happens, it gives the big tech companies some significant runway to start working through their collective rolodexes and letting Important People in Texas know (mafioso voice) how damaging this might be for business in the state.
posted by Kadin2048 at 10:30 PM on September 17, 2022 [3 favorites]
Some years ago there was a free-speech panic in Denmark because Facebook doesn't allow full frontal nudity, and that is a very important cultural issue here (I kid you not, and it's probably the same in The Netherlands). Not insane legal minds seriously tried to figure out if anything could be done about it, and it is impossible, for all the reasons mentioned above, and also that at the end of the day, it's probably OK, since global SoMe interpret pictures of naked people differently from us.
I know Texas has a larger population than Denmark, but it is still not big enough to overrule the rest of the US and the EU, not to mention the large Asian countries where there are also some limits to freedom of speech.
But the thing is, judging from the sentiments here, this fact is one of the things that drive some people towards populist and anti-democratic politicians. They don't want to hear facts. They want to have the biggest wall, both physically, electronically and mentally, which they can hide behind and say racist stuff all day long and into the night, like when they were young and no-one knew what some old idiot was saying, or cared about it.
posted by mumimor at 2:17 AM on September 18, 2022 [9 favorites]
I know Texas has a larger population than Denmark, but it is still not big enough to overrule the rest of the US and the EU, not to mention the large Asian countries where there are also some limits to freedom of speech.
But the thing is, judging from the sentiments here, this fact is one of the things that drive some people towards populist and anti-democratic politicians. They don't want to hear facts. They want to have the biggest wall, both physically, electronically and mentally, which they can hide behind and say racist stuff all day long and into the night, like when they were young and no-one knew what some old idiot was saying, or cared about it.
posted by mumimor at 2:17 AM on September 18, 2022 [9 favorites]
Can this ruling be leveraged to defend some forms of protest?
posted by jeffburdges at 3:50 AM on September 18, 2022
posted by jeffburdges at 3:50 AM on September 18, 2022
One day I will have an IRC server in orbit and you can all get fucked.
posted by adept256 at 3:51 AM on September 18, 2022 [10 favorites]
posted by adept256 at 3:51 AM on September 18, 2022 [10 favorites]
I wonder a few things. The phone company can't themselves deny you the service of carrying your communications based on their content, only if you can pay your bill. UPS can't get away with not shipping sex toys. Moderation involves invasion of privacy that way. Once you do start looking inside to pass/fail some sort of 'speech', you are now on the hook for all speech that goes through you. There used to be a battle over Common Carrier status that sorta has eroded. There are only two options, you are not responsible for what you carry through your service, or you are responsible/liable for everything you carry through your service.
The other thing is the size of the private business that this ruling refers to and the point that it's basically free. See, there's this difference between the "members only" and "refusal to grant membership", and "right to refuse service". You can (hopefully) still just refuse to take their money at least if you are small enough and haven't reached that public infrastructure size of service (like phone, cable, etc. which still at least try to hold onto Common Carrier). But if it's a free service... why should you be able to pick and choose who gets to have it.
Seems to me that these companies should just pull a Metafilter and charge a small membership fee. Then they just just revoke it for breaking TOS and then refuse to accept next membership attempt, or not give it in the first place.
Generally acceptable Common Carrier keeping things would be things like looking at volume/capacity, or tagging things and providing filtering options, purely mechanical things that don't require them to make the choice but pushing it off to the user. Argued on Metatalk often enough... user kill filters. I want nothing from this person, nothing that contains this word, nothing with this tag, good old USENET `rn` (readnews) that has a "PLONK!" filter.
Anyways, I had way to much of this during my large university days fielding complaints and walking the narrow line. But we could always just kick them out of university if things made it that high up the "oh no you don't" scale.
posted by zengargoyle at 4:19 AM on September 18, 2022 [7 favorites]
The other thing is the size of the private business that this ruling refers to and the point that it's basically free. See, there's this difference between the "members only" and "refusal to grant membership", and "right to refuse service". You can (hopefully) still just refuse to take their money at least if you are small enough and haven't reached that public infrastructure size of service (like phone, cable, etc. which still at least try to hold onto Common Carrier). But if it's a free service... why should you be able to pick and choose who gets to have it.
Seems to me that these companies should just pull a Metafilter and charge a small membership fee. Then they just just revoke it for breaking TOS and then refuse to accept next membership attempt, or not give it in the first place.
Generally acceptable Common Carrier keeping things would be things like looking at volume/capacity, or tagging things and providing filtering options, purely mechanical things that don't require them to make the choice but pushing it off to the user. Argued on Metatalk often enough... user kill filters. I want nothing from this person, nothing that contains this word, nothing with this tag, good old USENET `rn` (readnews) that has a "PLONK!" filter.
Anyways, I had way to much of this during my large university days fielding complaints and walking the narrow line. But we could always just kick them out of university if things made it that high up the "oh no you don't" scale.
posted by zengargoyle at 4:19 AM on September 18, 2022 [7 favorites]
The phone company can't themselves deny you the service of carrying your communications based on their content, only if you can pay your bill. UPS can't get away with not shipping sex toys.
The phone company can, however, terminate service for abusive conduct, as well as help identify you to law enforcement (as one transphobe found out the hard way recently), and if UPS thinks your package is potentially dangerous, they can and will refuse to ship it (and if they think you're sending something with the intent to harm, see above.) One of the big problems with free speech "absolutism" is that there is a contradiction in the philosophy - it argues that speech is powerful and thus needs protection, while hate speech is something that can be ignored and is thus harmless. But as we're seeing, hate speech is far from harmless, given the hierarchy of hate, and thus should not be viewed as just a "matter of opinion".
Once you do start looking inside to pass/fail some sort of 'speech', you are now on the hook for all speech that goes through you.
This is literally why Section 230 was passed - to make it so that good faith moderation of user content post publication was not seen as assuming legal liability for it. And yes, I'm a 230 critic - but my issues revolve around 230's lack of ability with dealing with bad faith (the fact that websites that engage in what is legalized extortion under 230 is a disgrace) and that its blanket has been expanded by courts to places it should not have, such as indemnifying providers for content they had control of ante publication. But the core conceit of the law - that good faith moderation should not be seen as assuming legal liability - is a sound principle.
But if it's a free service... why should you be able to pick and choose who gets to have it.
Because it's my house, and I get to set the rules (barring legal protections to stop discrimination, of course.) My choice to provide a service for free does not mean that it suddenly becomes a public good.
Argued on Metatalk often enough... user kill filters. I want nothing from this person, nothing that contains this word, nothing with this tag, good old USENET `rn` (readnews) that has a "PLONK!" filter.
This is pulling blinds on the sewage in the front yard seeping into the groundwater. Just because you no longer see it doesn't mean that hate has disappeared, nor its harms. Not to mention that if you're the target of hate, ignoring it is not an option as you don't know which threats of violence are real.
posted by NoxAeternum at 5:01 AM on September 18, 2022 [26 favorites]
The phone company can, however, terminate service for abusive conduct, as well as help identify you to law enforcement (as one transphobe found out the hard way recently), and if UPS thinks your package is potentially dangerous, they can and will refuse to ship it (and if they think you're sending something with the intent to harm, see above.) One of the big problems with free speech "absolutism" is that there is a contradiction in the philosophy - it argues that speech is powerful and thus needs protection, while hate speech is something that can be ignored and is thus harmless. But as we're seeing, hate speech is far from harmless, given the hierarchy of hate, and thus should not be viewed as just a "matter of opinion".
Once you do start looking inside to pass/fail some sort of 'speech', you are now on the hook for all speech that goes through you.
This is literally why Section 230 was passed - to make it so that good faith moderation of user content post publication was not seen as assuming legal liability for it. And yes, I'm a 230 critic - but my issues revolve around 230's lack of ability with dealing with bad faith (the fact that websites that engage in what is legalized extortion under 230 is a disgrace) and that its blanket has been expanded by courts to places it should not have, such as indemnifying providers for content they had control of ante publication. But the core conceit of the law - that good faith moderation should not be seen as assuming legal liability - is a sound principle.
But if it's a free service... why should you be able to pick and choose who gets to have it.
Because it's my house, and I get to set the rules (barring legal protections to stop discrimination, of course.) My choice to provide a service for free does not mean that it suddenly becomes a public good.
Argued on Metatalk often enough... user kill filters. I want nothing from this person, nothing that contains this word, nothing with this tag, good old USENET `rn` (readnews) that has a "PLONK!" filter.
This is pulling blinds on the sewage in the front yard seeping into the groundwater. Just because you no longer see it doesn't mean that hate has disappeared, nor its harms. Not to mention that if you're the target of hate, ignoring it is not an option as you don't know which threats of violence are real.
posted by NoxAeternum at 5:01 AM on September 18, 2022 [26 favorites]
I’d like to see Google and Facebook close their large Austin offices.
This would also be a desired outcome for Republican-Fascists. The employee base of educated, intelligent people leaves the state, reducing the opposition to cult authoritarianism within Texas.
posted by gimonca at 5:55 AM on September 18, 2022 [13 favorites]
This would also be a desired outcome for Republican-Fascists. The employee base of educated, intelligent people leaves the state, reducing the opposition to cult authoritarianism within Texas.
posted by gimonca at 5:55 AM on September 18, 2022 [13 favorites]
The phone company can, however, terminate service for abusive conduct, as well as help identify you to law enforcement
Yep. But it's the feds that are doing the tapping and search warranting the connection information. This is why you only keep records long enough for billing cycles and the minimum retention policy and then they are GONE. Dear judge "I solemnly affirm that those records are purged after 120 business days". It's in the TOS, you have 120 days to contest a bill. We don't have to keep it any longer than that so we don't. Another operational volume thing. We aggregate and throw away the details, if they ask later than that, they get something like #of calls and minutes spent.
good faith moderation should not be seen as assuming legal liability - is a sound principle
Yep. I never got into any sort of trouble for a NOPE. Go ahead, here's my supervisor, he's going to ask me. His supervisor is going to ask him and it's still me. The answer doesn't change. Until it gets to Board of Directors or President's Office and makes it's way back down through lawyers and such.
My choice to provide a service for free does not mean that it suddenly becomes a public good
Only when it's small and "it's my house". Not when you're Facebook or Twitter or Google scale. But you see, that's not free. That's free if I like you. Feel free to provide food to the homeless except for any body you don't like. That's why you charge a penny (you'll even give them the penny if they need one) but you keep the "right to refuse service".
Just because you no longer see it doesn't mean that hate has disappeared
Non sequitur, doesn't matter if the provider keeps it from being seen or if you yourself keep it from being seen. It still hasn't disappeared. You're just asking for someone to do it for you. It's like going to therapy or seeking advice from a minister or a doctor. Please do this for me. Not a problem if it is asked for. Leaving things in other's hands willingly is just fine. But you have to trust those that you are asking to do a better job than you can do yourself.
posted by zengargoyle at 6:13 AM on September 18, 2022 [2 favorites]
Yep. But it's the feds that are doing the tapping and search warranting the connection information. This is why you only keep records long enough for billing cycles and the minimum retention policy and then they are GONE. Dear judge "I solemnly affirm that those records are purged after 120 business days". It's in the TOS, you have 120 days to contest a bill. We don't have to keep it any longer than that so we don't. Another operational volume thing. We aggregate and throw away the details, if they ask later than that, they get something like #of calls and minutes spent.
good faith moderation should not be seen as assuming legal liability - is a sound principle
Yep. I never got into any sort of trouble for a NOPE. Go ahead, here's my supervisor, he's going to ask me. His supervisor is going to ask him and it's still me. The answer doesn't change. Until it gets to Board of Directors or President's Office and makes it's way back down through lawyers and such.
My choice to provide a service for free does not mean that it suddenly becomes a public good
Only when it's small and "it's my house". Not when you're Facebook or Twitter or Google scale. But you see, that's not free. That's free if I like you. Feel free to provide food to the homeless except for any body you don't like. That's why you charge a penny (you'll even give them the penny if they need one) but you keep the "right to refuse service".
Just because you no longer see it doesn't mean that hate has disappeared
Non sequitur, doesn't matter if the provider keeps it from being seen or if you yourself keep it from being seen. It still hasn't disappeared. You're just asking for someone to do it for you. It's like going to therapy or seeking advice from a minister or a doctor. Please do this for me. Not a problem if it is asked for. Leaving things in other's hands willingly is just fine. But you have to trust those that you are asking to do a better job than you can do yourself.
posted by zengargoyle at 6:13 AM on September 18, 2022 [2 favorites]
When Truth Social gets 50M users
Not going to happen. Truth Social's popularity peaked the month of its launch, and it's been dwindling ever since. The website is only getting about 300,000 views per day, and its most active hashtags get only a few thousand posts. Its active userbase is closer to dozens than millions. Oh, and it's also stopped paying its bills to its web-hosting service.
posted by ultraviolet catastrophe at 6:32 AM on September 18, 2022 [11 favorites]
Not going to happen. Truth Social's popularity peaked the month of its launch, and it's been dwindling ever since. The website is only getting about 300,000 views per day, and its most active hashtags get only a few thousand posts. Its active userbase is closer to dozens than millions. Oh, and it's also stopped paying its bills to its web-hosting service.
posted by ultraviolet catastrophe at 6:32 AM on September 18, 2022 [11 favorites]
I thought it was: I suppose the new Steering Committee had best cap MeFi membership at 49,999 members?, 50K. 50M is far outside the small range. Can you even imagine moderation at the 50 million user mark that isn't somehow automated. How many people would you need to do that by hand?
posted by zengargoyle at 6:47 AM on September 18, 2022
posted by zengargoyle at 6:47 AM on September 18, 2022
In the Truth Social graveyard the wind whispers through the stones - loooooosssssseeeeeerrrr.
posted by adept256 at 6:49 AM on September 18, 2022 [6 favorites]
posted by adept256 at 6:49 AM on September 18, 2022 [6 favorites]
i see that there are several user numbers in this thread well over 50k - true, most of them are not active, but it's going to be pretty tough to argue that in court
posted by pyramid termite at 7:16 AM on September 18, 2022
posted by pyramid termite at 7:16 AM on September 18, 2022
so that means cluttering up these online cesspit sites with automated Markov-chain robo-trash is protected speech?
posted by scruss at 7:38 AM on September 18, 2022 [2 favorites]
posted by scruss at 7:38 AM on September 18, 2022 [2 favorites]
My choice to provide a service for free does not mean that it suddenly becomes a public good
Only when it's small and "it's my house". Not when you're Facebook or Twitter or Google scale. But you see, that's not free. That's free if I like you. Feel free to provide food to the homeless except for any body you don't like. That's why you charge a penny (you'll even give them the penny if they need one) but you keep the "right to refuse service".
I can't speak to the legal aspects of this argument, but I'm kind of troubled by it in an ethical sense—I really don't like the conclusion that the only way to maintain control over a service is to commodify it (even at far-below-market rates like a token penny).
Not to mention that the service-membership distinction just feels disingenuous, like one of those weird word games that Sovereign Citizens play. Again, it may well be legally valid—I continue to plead ignorance here—but I struggle to understand the broader social justification here.
posted by the tartare yolk at 7:48 AM on September 18, 2022 [1 favorite]
Only when it's small and "it's my house". Not when you're Facebook or Twitter or Google scale. But you see, that's not free. That's free if I like you. Feel free to provide food to the homeless except for any body you don't like. That's why you charge a penny (you'll even give them the penny if they need one) but you keep the "right to refuse service".
I can't speak to the legal aspects of this argument, but I'm kind of troubled by it in an ethical sense—I really don't like the conclusion that the only way to maintain control over a service is to commodify it (even at far-below-market rates like a token penny).
Not to mention that the service-membership distinction just feels disingenuous, like one of those weird word games that Sovereign Citizens play. Again, it may well be legally valid—I continue to plead ignorance here—but I struggle to understand the broader social justification here.
posted by the tartare yolk at 7:48 AM on September 18, 2022 [1 favorite]
Can't imagine the alt-right online media companies are lobbying for this. Their only reason to exist is to host content and users that Twitter, Meta, Alphabet and Reddit reject. No rejection = no Parler, Gab, TruthSocial, etc.
Also ... this is much less a battle between left and right as it is a front in the battle between factions of the right, trying to decide if they exist to cut corporate America's taxes and regulations or cut corporate America's throat for embracing the (non-redistributionist portion of) the left's ideology.
posted by MattD at 7:58 AM on September 18, 2022 [3 favorites]
Also ... this is much less a battle between left and right as it is a front in the battle between factions of the right, trying to decide if they exist to cut corporate America's taxes and regulations or cut corporate America's throat for embracing the (non-redistributionist portion of) the left's ideology.
posted by MattD at 7:58 AM on September 18, 2022 [3 favorites]
> I really don't like the conclusion that the only way to maintain control over a service is to commodify it (even at far-below-market rates like a token penny).
As disagreeable as it is, the "membership" idea seems to be an easy short-term fix.
I've always been uncomfortable with the fact that in some jurisdictions, new-media companies and businesses have been expected or compelled to moderate user-generated content, and their executives hauled before government about this, but there's almost no laws to guide this. Seems problematic to force businesses to be responsible for something that government has avoided. Except for meddling, like this Fifth Circuit ruling.
posted by Artful Codger at 8:19 AM on September 18, 2022 [3 favorites]
As disagreeable as it is, the "membership" idea seems to be an easy short-term fix.
I've always been uncomfortable with the fact that in some jurisdictions, new-media companies and businesses have been expected or compelled to moderate user-generated content, and their executives hauled before government about this, but there's almost no laws to guide this. Seems problematic to force businesses to be responsible for something that government has avoided. Except for meddling, like this Fifth Circuit ruling.
posted by Artful Codger at 8:19 AM on September 18, 2022 [3 favorites]
Also ... this is much less a battle between left and right as it is a front in the battle between factions of the right
Well, I'd agree it's sort of a struggle between the Trumpist id of the right and it's corporatist, Romneyeque superego. But the id is lashing out at things that seem leftish.
posted by mark k at 8:31 AM on September 18, 2022 [2 favorites]
Well, I'd agree it's sort of a struggle between the Trumpist id of the right and it's corporatist, Romneyeque superego. But the id is lashing out at things that seem leftish.
posted by mark k at 8:31 AM on September 18, 2022 [2 favorites]
As disagreeable as it is, the "membership" idea seems to be an easy short-term fix.
It's a fix with a long history. In Mormon Utah, there were bans on public sales of alcohol, but they didn't apply to private clubs, so a bar could just require patrons to be member. Membership was purchased for $1 or so.
posted by CheeseDigestsAll at 8:31 AM on September 18, 2022 [11 favorites]
It's a fix with a long history. In Mormon Utah, there were bans on public sales of alcohol, but they didn't apply to private clubs, so a bar could just require patrons to be member. Membership was purchased for $1 or so.
posted by CheeseDigestsAll at 8:31 AM on September 18, 2022 [11 favorites]
UPS can't get away with not shipping sex toys
Do you have a reference for this? My google-fu failed.
posted by mark k at 8:36 AM on September 18, 2022
Do you have a reference for this? My google-fu failed.
posted by mark k at 8:36 AM on September 18, 2022
As disagreeable as it is, the "membership" idea seems to be an easy short-term fix.
Story time. Back in the early mid 1990's I moved from Los Angele, CA to Topeka Kansas. Even growing up in the western hills of Virginia and living in LA, Topeka was the most racist and homophobic place I had ever found myself in. Quite a few places had that "Members Only" sign on the door for different reasons. THE GAY BAR, THE GAY BAR... had one, so did the dyke dive down the street and the English Pub a block away from where I lived. They are just a good bit of a loophole selectively enforced. Topeka is the home base of the Fred Phelps clan, the "God Hates Fags" people. That "Members Only" had a purpose. Legal action, trespassing charges, keep the obnoxious people out. And then I learned from no less than my neighbor's 13 year old nephew that the "Members Only" sign on that pub down the street really meant "No N-words". Members Only can be put to use in many ways. This cis het male had a membership at THE GAY BAR, THE GAY BAR, spent every weekend there dancing my ass off, even went to the dyke dive on occasion without being a member (lol). The English Pub... all eyes turned to the door when we (the 13 year old and myself walked in, a second later they went back to what they were doing. I had a couple of beers, kid had a couple of Cokes, we played a few games of pool.
Yeah, it's a sorta fix that works at a small-ish scale. For good or bad.
The biker bar, and the 'college' bar in Topeka didn't have the "Member's Only", they were just a bunch of "meh". Should you ever find yourself there.... go to THE GAY BAR, THE GAY BAR, best fucking dance floor and music and DJs in that whole town. You have to head 30 or more miles away to Lawrence or Kansas City or Wichita to find something other than a jukebox.
posted by zengargoyle at 8:45 AM on September 18, 2022 [12 favorites]
Story time. Back in the early mid 1990's I moved from Los Angele, CA to Topeka Kansas. Even growing up in the western hills of Virginia and living in LA, Topeka was the most racist and homophobic place I had ever found myself in. Quite a few places had that "Members Only" sign on the door for different reasons. THE GAY BAR, THE GAY BAR... had one, so did the dyke dive down the street and the English Pub a block away from where I lived. They are just a good bit of a loophole selectively enforced. Topeka is the home base of the Fred Phelps clan, the "God Hates Fags" people. That "Members Only" had a purpose. Legal action, trespassing charges, keep the obnoxious people out. And then I learned from no less than my neighbor's 13 year old nephew that the "Members Only" sign on that pub down the street really meant "No N-words". Members Only can be put to use in many ways. This cis het male had a membership at THE GAY BAR, THE GAY BAR, spent every weekend there dancing my ass off, even went to the dyke dive on occasion without being a member (lol). The English Pub... all eyes turned to the door when we (the 13 year old and myself walked in, a second later they went back to what they were doing. I had a couple of beers, kid had a couple of Cokes, we played a few games of pool.
Yeah, it's a sorta fix that works at a small-ish scale. For good or bad.
The biker bar, and the 'college' bar in Topeka didn't have the "Member's Only", they were just a bunch of "meh". Should you ever find yourself there.... go to THE GAY BAR, THE GAY BAR, best fucking dance floor and music and DJs in that whole town. You have to head 30 or more miles away to Lawrence or Kansas City or Wichita to find something other than a jukebox.
posted by zengargoyle at 8:45 AM on September 18, 2022 [12 favorites]
this is much less a battle between left and right as it is a front in the battle between factions of the right
Sounds about right when you consider this ruling clashes with FOSTA-SESTA.
posted by LindsayIrene at 9:07 AM on September 18, 2022 [6 favorites]
Sounds about right when you consider this ruling clashes with FOSTA-SESTA.
posted by LindsayIrene at 9:07 AM on September 18, 2022 [6 favorites]
Can you imagine the utter and complete cesspool that Facebook and Twitter will become if this ruling stands and the QAnon dolts start rapid-posting the most heinous stuff they can hoping for something to get taken down so they can sue for their $100,000? This law doesn’t just inhibit moderation, it actively encourages the worst people to try to get rich posting the worst stuff.
posted by Pater Aletheias at 9:28 AM on September 18, 2022 [9 favorites]
posted by Pater Aletheias at 9:28 AM on September 18, 2022 [9 favorites]
There are only two options, you are not responsible for what you carry through your service, or you are responsible/liable for everything you carry through your service.
Well no, there is also the current, third option, where social media platforms are not liable for what gets posted AND can filter it at will. It's the best of both worlds for them, and hence we have a flourishing internet. Messing with either piece obviously makes things worse.
Take away the ability to moderate and pretty much every comment section gets spoiled by trolls and shut down, since almost no media company wants to voluntarily host offensive garbage. These days about half of web publishers don't host comments, and it kind of looks like the smart play.
Take away the liability part and virtually ALL web 2.0 goes away, since it will not be worth the risk to host user-generated content.
I find it amazing that people don't really understand what's at stake, that what Republicans are pushing for breaks everything. Conservatives don't seem to understand it themselves, or they don't care.
posted by anhedonic at 10:06 AM on September 18, 2022 [13 favorites]
Well no, there is also the current, third option, where social media platforms are not liable for what gets posted AND can filter it at will. It's the best of both worlds for them, and hence we have a flourishing internet. Messing with either piece obviously makes things worse.
Take away the ability to moderate and pretty much every comment section gets spoiled by trolls and shut down, since almost no media company wants to voluntarily host offensive garbage. These days about half of web publishers don't host comments, and it kind of looks like the smart play.
Take away the liability part and virtually ALL web 2.0 goes away, since it will not be worth the risk to host user-generated content.
I find it amazing that people don't really understand what's at stake, that what Republicans are pushing for breaks everything. Conservatives don't seem to understand it themselves, or they don't care.
posted by anhedonic at 10:06 AM on September 18, 2022 [13 favorites]
Jeet Heer: Frank Wilhoit: “Conservatism consists of exactly one proposition …There must be in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect.” This seems increasingly true.
Found this (and the source discussion) some time ago and am regularly annoyed at how obviously accurate it is.
This ruling does not even consider how the law could possibly apply to everyone. It is intended to bind social platforms while protecting conservatives. They are expected to continue removing liberal/progressive accounts that make outraged noises (might be considered threatening, y'know) at conservatives.
...I suppose Google's reaction could be "We're turning off the spam filters in Texas. Here's aaaaallllll the email sent to your address, some of which is political; we can't possibly restrict some of it without stepping on those people's rights. Have fun."
posted by ErisLordFreedom at 10:32 AM on September 18, 2022 [14 favorites]
Found this (and the source discussion) some time ago and am regularly annoyed at how obviously accurate it is.
This ruling does not even consider how the law could possibly apply to everyone. It is intended to bind social platforms while protecting conservatives. They are expected to continue removing liberal/progressive accounts that make outraged noises (might be considered threatening, y'know) at conservatives.
...I suppose Google's reaction could be "We're turning off the spam filters in Texas. Here's aaaaallllll the email sent to your address, some of which is political; we can't possibly restrict some of it without stepping on those people's rights. Have fun."
posted by ErisLordFreedom at 10:32 AM on September 18, 2022 [14 favorites]
Take away the ability to moderate and pretty much every comment section gets spoiled by trolls and shut down, since almost no media company wants to voluntarily host offensive garbage.
The trolls won't even be able to make themselves heard in the deluge of spam!
posted by Blue Jello Elf at 10:45 AM on September 18, 2022 [5 favorites]
The trolls won't even be able to make themselves heard in the deluge of spam!
posted by Blue Jello Elf at 10:45 AM on September 18, 2022 [5 favorites]
Ok well if this can take FOSTA-SESTA down … I still don’t think I’d consider it a win, but it would be a silver lining on the poop sandwich.
posted by Bottlecap at 10:46 AM on September 18, 2022 [1 favorite]
posted by Bottlecap at 10:46 AM on September 18, 2022 [1 favorite]
For those talking about illegal material, be aware that the bill actually does allow removal in that case.
posted by nosewings at 11:17 AM on September 18, 2022
posted by nosewings at 11:17 AM on September 18, 2022
Its funny how this would simultaneously destroy the internet and re-open self-hosted email servers
posted by Ultracrepidarian at 11:17 AM on September 18, 2022 [3 favorites]
posted by Ultracrepidarian at 11:17 AM on September 18, 2022 [3 favorites]
Oh man, my Leg/Reg class tomorrow is going to be wild as fuck.
What the hell, 5th Circuit.
posted by corb at 11:17 AM on September 18, 2022 [12 favorites]
What the hell, 5th Circuit.
posted by corb at 11:17 AM on September 18, 2022 [12 favorites]
So I can’t ban an ex-prez who lost an election from continuing to lie about it on my private property?
posted by aiq at 11:24 AM on September 18, 2022
posted by aiq at 11:24 AM on September 18, 2022
So I can’t ban an ex-prez who lost an election from continuing to lie about it on my private property?
Sure you can. File trespassing on private property charges. (don't ask how I know). It's only if you open your property to "everybody but" and pass the cutoff point where you pick and choose from the masses that you run into the legal issues. Aside from the feds and secret service and such.... no problem. In imminent domain states you might even get away with shooting them under "home is castle" defense and plausible deniability. Probably not going to happen.
posted by zengargoyle at 11:51 AM on September 18, 2022 [1 favorite]
Sure you can. File trespassing on private property charges. (don't ask how I know). It's only if you open your property to "everybody but" and pass the cutoff point where you pick and choose from the masses that you run into the legal issues. Aside from the feds and secret service and such.... no problem. In imminent domain states you might even get away with shooting them under "home is castle" defense and plausible deniability. Probably not going to happen.
posted by zengargoyle at 11:51 AM on September 18, 2022 [1 favorite]
So I can’t ban an ex-prez who lost an election from continuing to lie about it on my private property?
aiq has it
Every moderator (hi guys!) has a story about users not accepting moderation with grace. Man, people are jerks. I've heard a few wild moderation stories myself, but nothing tops this - starting a political movement with millions of followers to legally allow trolling. It's kinda awesome how petty it is.
My IRC death star will be moderated by those space wolves you see on thrift store t-shirts.
posted by adept256 at 11:57 AM on September 18, 2022 [1 favorite]
aiq has it
Every moderator (hi guys!) has a story about users not accepting moderation with grace. Man, people are jerks. I've heard a few wild moderation stories myself, but nothing tops this - starting a political movement with millions of followers to legally allow trolling. It's kinda awesome how petty it is.
My IRC death star will be moderated by those space wolves you see on thrift store t-shirts.
posted by adept256 at 11:57 AM on September 18, 2022 [1 favorite]
Oh man, my Leg/Reg class tomorrow is going to be wild as fuck.
What the hell, 5th Circuit.
posted by corb at 11:17 AM on 9/18
This is like the subtitle for the 5th circuit. The 5th circuit has long been the one that acts without evidence or against evidence. The rest of the nation is only catching up
posted by eustatic at 12:06 PM on September 18, 2022 [4 favorites]
What the hell, 5th Circuit.
posted by corb at 11:17 AM on 9/18
This is like the subtitle for the 5th circuit. The 5th circuit has long been the one that acts without evidence or against evidence. The rest of the nation is only catching up
posted by eustatic at 12:06 PM on September 18, 2022 [4 favorites]
Cam we re-name it the "ted cruz" circuit?
posted by eustatic at 12:07 PM on September 18, 2022 [2 favorites]
posted by eustatic at 12:07 PM on September 18, 2022 [2 favorites]
For those talking about illegal material, be aware that the bill actually does allow removal in that case.
posted by nosewings at 1:17 PM on September 18 [+] [!]
Ah - so it ISN'T censorship when the government does it by calling it illegal and THEN it's ok. Got it, so we oppose censorship by private companies, but only so far as it's legal, then when the government declares something "illegal" it can be restricted.
Circular reasoning into fascist hell. Kudos "Libertarians" You make Ron Paul smile in hell.
posted by symbioid at 12:48 PM on September 18, 2022 [4 favorites]
posted by nosewings at 1:17 PM on September 18 [+] [!]
Ah - so it ISN'T censorship when the government does it by calling it illegal and THEN it's ok. Got it, so we oppose censorship by private companies, but only so far as it's legal, then when the government declares something "illegal" it can be restricted.
Circular reasoning into fascist hell. Kudos "Libertarians" You make Ron Paul smile in hell.
posted by symbioid at 12:48 PM on September 18, 2022 [4 favorites]
Ah, relying on the legal precedent of Peasant 1
You could say "Dennis".
posted by maxwelton at 2:04 PM on September 18, 2022 [13 favorites]
You could say "Dennis".
posted by maxwelton at 2:04 PM on September 18, 2022 [13 favorites]
Only when it's small and "it's my house". Not when you're Facebook or Twitter or Google scale. But you see, that's not free. That's free if I like you. Feel free to provide food to the homeless except for any body you don't like. That's why you charge a penny (you'll even give them the penny if they need one) but you keep the "right to refuse service".
I'm pretty sure that soup kitchens and shelters retain the right to refuse service without charging a fee to harmful/belligerent individuals, as do commercial establishments of any size - this is how the Griffin Book works in Vegas. (Yes, I know they were successfully sued by card counters, but that was over them calling card counters cheaters and not being able to prove it in a court of law.)
As for your anecdote, the bars in question were using membership as a tool. For the gay bars, it was a way of vetting prospective clientele as well as add cost and thus friction for entry, which deters a lot of malcontents. (As you may note, this very website uses a similar mechanism.) The pub, on the other hand, was using membership as an end run around anti-discrimination laws.
Also, the "people you like" thing - that's a bit of bad faith argumentation that pops up in these discussions to avoid talking about why certain people and groups are getting the boot. If you want to argue that hate has a place at the table, then argue for it honestly.
Non sequitur, doesn't matter if the provider keeps it from being seen or if you yourself keep it from being seen. It still hasn't disappeared.
The events of the last two weeks disprove your argument here. Deplatforming works at sidelining hate, and to compare it to personal block lists is an argumentum ad absurdiam.
posted by NoxAeternum at 2:57 PM on September 18, 2022 [6 favorites]
I'm pretty sure that soup kitchens and shelters retain the right to refuse service without charging a fee to harmful/belligerent individuals, as do commercial establishments of any size - this is how the Griffin Book works in Vegas. (Yes, I know they were successfully sued by card counters, but that was over them calling card counters cheaters and not being able to prove it in a court of law.)
As for your anecdote, the bars in question were using membership as a tool. For the gay bars, it was a way of vetting prospective clientele as well as add cost and thus friction for entry, which deters a lot of malcontents. (As you may note, this very website uses a similar mechanism.) The pub, on the other hand, was using membership as an end run around anti-discrimination laws.
Also, the "people you like" thing - that's a bit of bad faith argumentation that pops up in these discussions to avoid talking about why certain people and groups are getting the boot. If you want to argue that hate has a place at the table, then argue for it honestly.
Non sequitur, doesn't matter if the provider keeps it from being seen or if you yourself keep it from being seen. It still hasn't disappeared.
The events of the last two weeks disprove your argument here. Deplatforming works at sidelining hate, and to compare it to personal block lists is an argumentum ad absurdiam.
posted by NoxAeternum at 2:57 PM on September 18, 2022 [6 favorites]
Oh, and it's [Truth Social] also stopped paying its bills to its web-hosting service.
"But it's my nature," shrugged the scorpion.
posted by ctmf at 3:58 PM on September 18, 2022 [9 favorites]
"But it's my nature," shrugged the scorpion.
posted by ctmf at 3:58 PM on September 18, 2022 [9 favorites]
“Conservatism consists of exactly one proposition, to wit: There must be in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect."Whether or not this particular bit of Trumpism is overturned by the Supreme Court, and I am not optimistic that it will be, we're going to see more of this going forward and we're going to need a Democratic Party that acknowledges the problem instead of pretending harder that the problem doesn't exist.
I don't know what the solution is, but I do know that we can't get a solution as long as the Democrats deny that there is a problem.
We come back, again and again, to the Democratic belief in values neutral governance. A faith that so long as the system exists and they keep playing by the rules justice is the inevitable result. The faith that Michelle Obama encapsulated in her phrase "when they go low, we go high".
Its clear that our current crop of elected Democrats are unsuited to the task. What isn't clear is how to replace them, and how to have any hope at all that those we replace them with will be even marginally better suited to the task.
posted by sotonohito at 7:29 PM on September 18, 2022 [10 favorites]
We come back, again and again, to the Democratic belief in values neutral governance. A faith that so long as the system exists and they keep playing by the rules justice is the inevitable result. The faith that Michelle Obama encapsulated in her phrase "when they go low, we go high".
This isn't a Democratic problem, it's a cultural problem. We have, for over a half century, taught the idea that it is possible to have a system that treats hate neutrally, that "the answer to bad speech is more/better speech." That needs to be untaught, and we need to set the standard that nobody's humanity is up for debate.
posted by NoxAeternum at 7:45 PM on September 18, 2022 [23 favorites]
This isn't a Democratic problem, it's a cultural problem. We have, for over a half century, taught the idea that it is possible to have a system that treats hate neutrally, that "the answer to bad speech is more/better speech." That needs to be untaught, and we need to set the standard that nobody's humanity is up for debate.
posted by NoxAeternum at 7:45 PM on September 18, 2022 [23 favorites]
As Jean-Paul Sartre said of conservative fascists in 1944:
"...If you press them too closely, they will abruptly fall silent, loftily indicating by some phrase that the time for argument is past."
The phrase those who want to be perceived as arguing in good faith (but aren't) often use is "We will have to agree to disagree." (Translation: I can't prove a thing I say but I refuse to accept your argument or evidence no matter how compelling.")
posted by Gelatin at 6:06 AM on September 19, 2022 [3 favorites]
"...If you press them too closely, they will abruptly fall silent, loftily indicating by some phrase that the time for argument is past."
The phrase those who want to be perceived as arguing in good faith (but aren't) often use is "We will have to agree to disagree." (Translation: I can't prove a thing I say but I refuse to accept your argument or evidence no matter how compelling.")
posted by Gelatin at 6:06 AM on September 19, 2022 [3 favorites]
On the other hand I use that phrase with transphobes, homophobes, and others when i just don't have the spoons to fruitlessly engage with their demented world view. IE: don't wrestle with a pig, you get dirty and the pig likes it.
posted by Mitheral at 6:38 AM on September 19, 2022 [8 favorites]
posted by Mitheral at 6:38 AM on September 19, 2022 [8 favorites]
RonButNotStupid asked, way back in the thread:
How can a bunch of conservatives create a crazy-ass ruling like this out of whole cloth without causing our entire legal system to explode in a cloud of contradictions? [1]
…
How much hypocrisy can the system tolerate before it loses legitimacy? [2]
It depends on who's asking and how much faith people (still, somehow) have in a system with inadequate guardrails.
Sotonohito: We come back, again and again, to the Democratic belief in values neutral governance. A faith that so long as the system exists and they keep playing by the rules justice is the inevitable result.
NoxAeternum: This isn't a Democratic problem, it's a cultural problem. We have, for over a half century, taught the idea that it is possible to have a system that treats hate neutrally, that "the answer to bad speech is more/better speech."
Arguably the judiciary has already lost its legitimacy. There were irregularities with the last three appointments to the Supreme Court (the Senate refused, with no precedent, to consider Garland; Kavanaugh had previous disqualifying behavior and lied under oath; Coney Barrett, inexperienced and arguably unqualified, was rammed through despite the Senate's previous new "precedent" of not confirming a Justice "during an election year") and a fourth Justice's wife was involved heavily in the movement to overturn the last election, and that Justice has failed to recuse himself in cases where his wife has been implicated on one side. The recent decision in Dobbs ignored the Supreme Court's long held practice of stare decisis (letting previous decisions stand) and basically attempted to invent precedent in order to find a previous decision invalid. And that's just the Supreme Court.
So-called "conservative" court appointees (approved by the Federalist Society) are difficult, if not impossible, to eject from the courts, because our government relies on the idea that nobody would ever be so bold as to appoint someone unqualified or who'd let politics get in the way of the law. Recent rulings (in the Fifth Circuit, or, say, Florida) have made it pretty clear that these appointments have put people in the courts who will turn a blind eye to inconvenient precedent and seek strange interpretations of the law in order to achieve politically desired outcomes. Unfortunately, while you can vote politicians out of office, for the most part you can't impeach judges for bad rulings. Traditionally the courts have been allowed to police themselves, and the standards for censure are weak and tradition-bound, so the court system only rarely gets around to any sort of discipline of problem judges.
In other words, from where I sit the courts are poisoned and we're already in a constitutional crisis because of it. Democratic party leadership continues to behave as if they neither recognize this crisis nor expect to be able to do anything about it, so expect the Federalist Society to continue to get everything it wants for the foreseeable future.
posted by fedward at 7:38 AM on September 19, 2022 [20 favorites]
How can a bunch of conservatives create a crazy-ass ruling like this out of whole cloth without causing our entire legal system to explode in a cloud of contradictions? [1]
…
How much hypocrisy can the system tolerate before it loses legitimacy? [2]
It depends on who's asking and how much faith people (still, somehow) have in a system with inadequate guardrails.
Sotonohito: We come back, again and again, to the Democratic belief in values neutral governance. A faith that so long as the system exists and they keep playing by the rules justice is the inevitable result.
NoxAeternum: This isn't a Democratic problem, it's a cultural problem. We have, for over a half century, taught the idea that it is possible to have a system that treats hate neutrally, that "the answer to bad speech is more/better speech."
Arguably the judiciary has already lost its legitimacy. There were irregularities with the last three appointments to the Supreme Court (the Senate refused, with no precedent, to consider Garland; Kavanaugh had previous disqualifying behavior and lied under oath; Coney Barrett, inexperienced and arguably unqualified, was rammed through despite the Senate's previous new "precedent" of not confirming a Justice "during an election year") and a fourth Justice's wife was involved heavily in the movement to overturn the last election, and that Justice has failed to recuse himself in cases where his wife has been implicated on one side. The recent decision in Dobbs ignored the Supreme Court's long held practice of stare decisis (letting previous decisions stand) and basically attempted to invent precedent in order to find a previous decision invalid. And that's just the Supreme Court.
So-called "conservative" court appointees (approved by the Federalist Society) are difficult, if not impossible, to eject from the courts, because our government relies on the idea that nobody would ever be so bold as to appoint someone unqualified or who'd let politics get in the way of the law. Recent rulings (in the Fifth Circuit, or, say, Florida) have made it pretty clear that these appointments have put people in the courts who will turn a blind eye to inconvenient precedent and seek strange interpretations of the law in order to achieve politically desired outcomes. Unfortunately, while you can vote politicians out of office, for the most part you can't impeach judges for bad rulings. Traditionally the courts have been allowed to police themselves, and the standards for censure are weak and tradition-bound, so the court system only rarely gets around to any sort of discipline of problem judges.
In other words, from where I sit the courts are poisoned and we're already in a constitutional crisis because of it. Democratic party leadership continues to behave as if they neither recognize this crisis nor expect to be able to do anything about it, so expect the Federalist Society to continue to get everything it wants for the foreseeable future.
posted by fedward at 7:38 AM on September 19, 2022 [20 favorites]
I see enough daylight between Impeachment and "Shall hold their offices during good behavior" to see a way for some alternate (and very, very radical) solutions such as pro-roguing judges/courts that are very much much not displaying good behavior.
I also don't think the dems will ever have the confidence to orchestrate such a thing, regardless of how bad it gets. And certainly not Biden (and these would be executive calls on the same constituional footing as Marbury v Madison, which is to say there's nothing in the rules where tye dog can't play football).
posted by Slackermagee at 10:00 AM on September 19, 2022 [4 favorites]
I also don't think the dems will ever have the confidence to orchestrate such a thing, regardless of how bad it gets. And certainly not Biden (and these would be executive calls on the same constituional footing as Marbury v Madison, which is to say there's nothing in the rules where tye dog can't play football).
posted by Slackermagee at 10:00 AM on September 19, 2022 [4 favorites]
I'll admit I'm somewhat paralyzed by the question of what to do about it. Saying "hey, these judges suck and their rulings are trash and shouldn't become precedent" is one thing, but neither is there an extant, functional structure for rooting out shitty judges, nor does there seem to be the political will to deal with the problem. You could idly think, "oh, we need a judicial review board," but that board could be politically manipulated just as easily as the courts were in the first place. I think the long term solution to political influence on the judiciary requires a combination of judicial term limits and rules on pool selection that prevent review panels composed of judges appointed primarily (or entirely) by a given party. Right now, though, we have one party that has successfully politicized the courts and is simultaneously able to use "don't politicize the courts" messaging as a successful defense, while the other party still hasn't even come to terms with the fact that the politicization has already happened. We're a long way from meaningful judicial review.
Anyway. I hate when people just catastrophize here, and I hate that the Federalist Society has been so successful that I find myself backed into that corner. I will stop talking about this now, before I become the guy ranting about how the courts are effectively practicing Moon Law and we're all doomed.
posted by fedward at 10:27 AM on September 19, 2022 [9 favorites]
Anyway. I hate when people just catastrophize here, and I hate that the Federalist Society has been so successful that I find myself backed into that corner. I will stop talking about this now, before I become the guy ranting about how the courts are effectively practicing Moon Law and we're all doomed.
posted by fedward at 10:27 AM on September 19, 2022 [9 favorites]
> fedward: "I'll admit I'm somewhat paralyzed by the question of what to do about it."
Here's this from an article by Dahlia Lithwick & Mark Joseph Stern on Slate, "The Solution to the Trump Judge Problem Nobody Wants to Talk About":
Here's this from an article by Dahlia Lithwick & Mark Joseph Stern on Slate, "The Solution to the Trump Judge Problem Nobody Wants to Talk About":
There are solutions out there for the problem of Trump’s runaway judges. Expanding the courts—even just the lower courts—is the most bulletproof. Congress has periodically added seats to the federal judiciary from its inception to help judges keep up with ever-ballooning caseloads. Today’s litigants (who are not named Donald Trump) often face yearslong court delays. The Judicial Conference, a nonpartisan government institution that develops administrative policies, has begged Congress to add seats to the lower courts. [...]posted by mhum at 4:26 PM on September 19, 2022 [11 favorites]
There are other worthy ideas too. Term limits for justices and lower court judges. Limits on courts’ jurisdiction to strike down democratically enacted laws. Modest reforms that restrict the Supreme Court’s ability to suppress voting rights before an election. Let’s hear them all. (God knows Biden’s court reform commission studied them extensively, to little end.)
Ok, given that many upper-level US courts are now presided-over by conservative-sympathetic judges, and that these courts are producing some strange and precedent-breaking decisions like this moderation decision, and the Trump doc "special master"... is it possible or likely that through appeals, the legal errors and flaws of these decisions will be recognized and corrected?
Stated another way, is it possible that the US legal system itself is robust enough to curb or correct these legally dubious judgements? With/without the changes listed by mhum above, and/or simply stuffing courts with as many Democrat-friendly judges as possible?
posted by Artful Codger at 4:34 PM on September 19, 2022 [1 favorite]
Stated another way, is it possible that the US legal system itself is robust enough to curb or correct these legally dubious judgements? With/without the changes listed by mhum above, and/or simply stuffing courts with as many Democrat-friendly judges as possible?
posted by Artful Codger at 4:34 PM on September 19, 2022 [1 favorite]
> Artful Codger: "Stated another way, is it possible that the US legal system itself is robust enough to curb or correct these legally dubious judgements?"
Unfortunately, the article I linked is quite pessimistic on that front. From that article:
Unfortunately, the article I linked is quite pessimistic on that front. From that article:
If there were a principle that best embodies why progressives are losing ground so quickly—even as they are correct on the facts, and the law, and the zeitgeist—it must be this tendency to just keep on lawyering the other side’s bad law in the hopes that the lawyering itself will make all the bad faith and crooked law go away. But for those who are genuinely worried that democracy will rise or fall based on whether a case lands before their judges or others, merely explaining legal flaws in pointillist detail isn’t an answer. And soberly explaining that Cannon was wrong about most stuff but correct about two things is decidedly not an answer, either. You do not, under any circumstances, have to hand it to them.posted by mhum at 4:58 PM on September 19, 2022 [9 favorites]
[...]
Until and unless those of us who are shocked and horrified at lawless rulings by lawless Trump judges are prepared to propose structural solutions, the aggregated effect of criticizing their rulings won’t be to restore the rule of law or even to restore public confidence in the rule of law. The aggregated effect will be just to confirm that we will all be living under the thumb of Donald Trump’s lifetime-appointed hacks for many decades.
[...]
But the chorus from the left, the middle, and the sane right that the lawlessness is lawless only affirms that we cannot ever escape this closed loop of Trump’s judges. Being really mad but doing nothing to change things is a terrible strategy for democracy and for public confidence in the courts. It creates the illusion that if we work really hard to debunk corrupt rulings, we can force Trump judges to see the light, or feel shame, or do something different. Meanwhile, the targets of our meticulous takedowns laugh at the pains we take to prove them wrong. They. Do. Not. Care.
We get it. Lawyers are trained to lawyer. But if you are lawyering within a system you believe to be broken, or immoral, or lawless, and you aren’t standing up with meaningful fixes for that system, you are, fundamentally, acceding to that lawlessness. It is a moral victory to point out the errors, but it’s also a tacit concession that the system is, in fact, legitimate, no matter how low it may go. Every one of us is going to need to decide how long we can continue to operate that way.
Facebook, Twitter, etc. all use very opaque algorithms to control what content makes it into your "feed". I think this sort of thing is bullshit, precisely because it doesn't give you any idea why certain posts are being preferenced over others, but that cuts both ways: FB et al certainly have the ability to be much more subtle in how they 'moderate' content than they currently are. Rather than have a 'Report' button that sends posts to a human moderator to judge against a set TOS, they could implement systems that just gradually reduce the visibility of posts—and of any future posts by the same user, or associated users—if they create negative engagement, or contain keywords that might create systemic liability for the platform, or are likely to be illegal in other jurisdictions (i.e. places with hate-speech laws), etc. etc.
There wouldn't be any easy way to even know if you've been moderated in that way, because the system is so opaque. Hell, they could full-on shadowban people, or just route them into a cesspool filled with upvote-bots and Markov-chain spampost generators, all upvoting each other and posting linkspam about weight-loss drugs, forever. (I'm imagining a Danteian circles-of-hell setup, where as your posts get increasingly toxic, you get shuffled deeper and deeper into the algorithmic wasteland, until eventually you're spewing your content at millions of 'followers' who are all bots, screaming into the ether until you finally say something that's actually legally actionable even in a shithole like Texas.)
The planet-brains of the 5th Cir. do not have any idea, I think, just how many millions of hours of engineer time a company like Facebook is capable of throwing at this problem, if they really get a proverbial gun put to their head (and by 'head', I mean 'revenue stream').
posted by Kadin2048 at 7:23 PM on September 19, 2022 [1 favorite]
There wouldn't be any easy way to even know if you've been moderated in that way, because the system is so opaque. Hell, they could full-on shadowban people, or just route them into a cesspool filled with upvote-bots and Markov-chain spampost generators, all upvoting each other and posting linkspam about weight-loss drugs, forever. (I'm imagining a Danteian circles-of-hell setup, where as your posts get increasingly toxic, you get shuffled deeper and deeper into the algorithmic wasteland, until eventually you're spewing your content at millions of 'followers' who are all bots, screaming into the ether until you finally say something that's actually legally actionable even in a shithole like Texas.)
The planet-brains of the 5th Cir. do not have any idea, I think, just how many millions of hours of engineer time a company like Facebook is capable of throwing at this problem, if they really get a proverbial gun put to their head (and by 'head', I mean 'revenue stream').
posted by Kadin2048 at 7:23 PM on September 19, 2022 [1 favorite]
I see enough daylight between Impeachment and "Shall hold their offices during good behavior"
Me too, totally. But guess who would decide not only what that means, but whether or not each individual case met the criteria? The SC, and they're the worst. It's cops investigating the cops, but worse.
As usual, it's really difficult to deter someone with no sense of shame or embarrassment, and nothing to lose because destruction of the whole system is the point.
posted by ctmf at 9:47 PM on September 19, 2022 [2 favorites]
Me too, totally. But guess who would decide not only what that means, but whether or not each individual case met the criteria? The SC, and they're the worst. It's cops investigating the cops, but worse.
As usual, it's really difficult to deter someone with no sense of shame or embarrassment, and nothing to lose because destruction of the whole system is the point.
posted by ctmf at 9:47 PM on September 19, 2022 [2 favorites]
I'm pretty sure that soup kitchens and shelters retain the right to refuse service without charging a fee to harmful/belligerent individuals,
Come back when you've been the one in the soup kitchen line. Sticks and stones may break my bones but words will never hurt me. Of course there is handling violence and danger, But can you really tell crazy from "don't like them"? Think long and hard about this. Be homeless for a year.
As you may note, this very website uses a similar mechanism.
As I did note. Pretty sure that's the whole membership and refusal of service thing.
Deplatforming works at sidelining hate, and to compare it to personal block lists is an argumentum ad absurdiamI can't prove a thing I say but I refuse to accept your argument or evidence no matter how compelling
Neither of us can prove anything though we both have compelling arguments. One side refuses arguments and evidence, so does the other side refuse arguments and evidence. Can the other side "prove a thing"? That's just Forensics (the collective term for both speech and debate). You have one side held up to proof, the other side arguments and evidence. Even lacking proof, where is the other sides argument and evidence? Does the "compelling" side actually have "proof"?
There wouldn't be any easy way to even know if you've been moderated in that way, because the system is so opaque.
Just like Metafilter! :)
I have argued (well not quite argued) that deletions should have a memail about the deletion. Partly because I sometimes forget whether I posted something or NOPE'd out and might just mistakenly say pretty much the same thing a second time because I'm not sure that I actuall did (and it was silently deleted) or if I just went away and got distracted and then do the same thing again.
So frustrating sometimes. (oh wait...) So frustrating sometimes! (need that !)
posted by zengargoyle at 11:45 AM on September 20, 2022 [1 favorite]
Come back when you've been the one in the soup kitchen line. Sticks and stones may break my bones but words will never hurt me. Of course there is handling violence and danger, But can you really tell crazy from "don't like them"? Think long and hard about this. Be homeless for a year.
As you may note, this very website uses a similar mechanism.
As I did note. Pretty sure that's the whole membership and refusal of service thing.
Deplatforming works at sidelining hate, and to compare it to personal block lists is an argumentum ad absurdiamI can't prove a thing I say but I refuse to accept your argument or evidence no matter how compelling
Neither of us can prove anything though we both have compelling arguments. One side refuses arguments and evidence, so does the other side refuse arguments and evidence. Can the other side "prove a thing"? That's just Forensics (the collective term for both speech and debate). You have one side held up to proof, the other side arguments and evidence. Even lacking proof, where is the other sides argument and evidence? Does the "compelling" side actually have "proof"?
There wouldn't be any easy way to even know if you've been moderated in that way, because the system is so opaque.
Just like Metafilter! :)
I have argued (well not quite argued) that deletions should have a memail about the deletion. Partly because I sometimes forget whether I posted something or NOPE'd out and might just mistakenly say pretty much the same thing a second time because I'm not sure that I actuall did (and it was silently deleted) or if I just went away and got distracted and then do the same thing again.
So frustrating sometimes. (oh wait...) So frustrating sometimes! (need that !)
posted by zengargoyle at 11:45 AM on September 20, 2022 [1 favorite]
Why not just ignore posts you don’t like? That’s what a former mod told me. I have the emails, DM me.
posted by Ideefixe at 2:03 PM on September 20, 2022 [2 favorites]
posted by Ideefixe at 2:03 PM on September 20, 2022 [2 favorites]
I have argued (well not quite argued) that deletions should have a memail about the deletion.
Good news, maybe with the new Steering Committee, we can finally get zengargoyle v. cortex overturned.
posted by ctmf at 2:37 PM on September 20, 2022 [4 favorites]
Good news, maybe with the new Steering Committee, we can finally get zengargoyle v. cortex overturned.
posted by ctmf at 2:37 PM on September 20, 2022 [4 favorites]
Neither of us can prove anything though we both have compelling arguments.
Except that I did provide evidence for my side, in pointing out how forcing a major CDN provider to stop protecting a website devoted to the terrorizing of transgender individuals has resulted in that website and its community collapsing, letting their victims have a measure of peace. We've also seen that when hatemongers lose access to their platforms, it does undercut their access and reach.
Is deplatforming a perfect solution? No, because there is no such thing. But it does demonstratibly work.
Sticks and stones may break my bones but words will never hurt me.
This canard is a contemptable lie, from the physiological (there are studies showing the physical health repercussions of bigotry) to the societal, with things like the hierarchy of genocide showing how words are used as a stepping stone to violence. And as more people realize that this canard is a lie, the tolerance for hate speech is declining.
As I did note. Pretty sure that's the whole membership and refusal of service thing.
Again, any business retains the right to (within the constraints of anti-discrimination law) refuse service to whomever they please. The membership fee is purely to introduce a bit of social friction to control who joins proactively, which keeps the less determined malcontents at bay.
But can you really tell crazy from "don't like them"?
Once again, "don't like them" is bad faith argumentation, because as it turns out, there are a lot of socially appropriate reasons to not "like" someone and exercise one's freedom of association to not have them around - like that person espousing bigoted beliefs. So if you want to argue that the hateful and bigoted should be tolerated, then make that argument - don't try to turn it into an anodyne "difference of opinion" and expect people to ignore what you're doing.
posted by NoxAeternum at 2:42 PM on September 20, 2022 [4 favorites]
Except that I did provide evidence for my side, in pointing out how forcing a major CDN provider to stop protecting a website devoted to the terrorizing of transgender individuals has resulted in that website and its community collapsing, letting their victims have a measure of peace. We've also seen that when hatemongers lose access to their platforms, it does undercut their access and reach.
Is deplatforming a perfect solution? No, because there is no such thing. But it does demonstratibly work.
Sticks and stones may break my bones but words will never hurt me.
This canard is a contemptable lie, from the physiological (there are studies showing the physical health repercussions of bigotry) to the societal, with things like the hierarchy of genocide showing how words are used as a stepping stone to violence. And as more people realize that this canard is a lie, the tolerance for hate speech is declining.
As I did note. Pretty sure that's the whole membership and refusal of service thing.
Again, any business retains the right to (within the constraints of anti-discrimination law) refuse service to whomever they please. The membership fee is purely to introduce a bit of social friction to control who joins proactively, which keeps the less determined malcontents at bay.
But can you really tell crazy from "don't like them"?
Once again, "don't like them" is bad faith argumentation, because as it turns out, there are a lot of socially appropriate reasons to not "like" someone and exercise one's freedom of association to not have them around - like that person espousing bigoted beliefs. So if you want to argue that the hateful and bigoted should be tolerated, then make that argument - don't try to turn it into an anodyne "difference of opinion" and expect people to ignore what you're doing.
posted by NoxAeternum at 2:42 PM on September 20, 2022 [4 favorites]
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posted by NoxAeternum at 4:03 PM on September 17, 2022 [23 favorites]