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naraburns  nihil supernum  2yr ago (text post)   32391 thread views

Culture War Roundup for the week of October 31, 2022

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What if, but for the government's action, the content would have stayed up?

If the government is truly acting without coercion, either explicit or implied, it's not censorship. On a knitting forum, this might be true. On Twitter or other social media, it's not.

I disagree, and I'll go one step further: if the government merely published recommended speech codes and websites freely implemented the recommendations, without any aid from the government in enforcing the speech codes, this would still be state action and a violation of the First Amendment.

In Georgia v McCollum it was held that defense attorneys exercising peremptory challenges in voir dire were performing state action, and so were barred from racial discrimination in exercising those challenges. In Norwood v Harrison the court found that providing free textbooks to segregated private schools was a form of prohibited state action.

Imagine if a city government published a recommendation for which parts of the city different races ought to live. It's a mere recommendation, there's no kind of enforcement mechanism, no cost or benefit to obeying or disobeying. Even so, I have no doubt that SCOTUS would find this to be a Fourteenth Amendment violation.

Governments don't just randomly produce recommendations, so almost any recommendation from the government is implied coercion, including that. The clause "if the government is truly acting without coercion" is a rare event.

Of course they do. See the food pyramid.

Suppose the food pyramid recommended healthy foods for white people and junk food for black people. What would SCOTUS say to the black man suing the government after his steady diet of Big Macs made him obese and diabetic? No one forced you to follow the recommendation?

It exists, it's just rare. Also, this recommendation is not aimed at a specific target that can be easily punished.

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