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As people here might recall, I believe very strongly that social media companies should be forbidden from removing any material that would be protected by the First Amendment from censorship or censor by the government. And, I am pretty close to a free speech absolutist in most respect. Yet, I do not see, from what is in the Intercept article, much support the claim of "blatantly unconstitutional" conduct. IF government officials intended to compel social media companies to remove material, that would be blatantly unconstitutional. If there was no such intent, but social media companies felt that they were being compelled, that might not be unconstitutional at all: "a State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State." Blum v. Yaretsky, 457 U.S. 991, 1004 (1982).
There doesn't seem to be much evidence in that article that any conduct has fallen on the "blatantly unconstitutional" side of the line. For example, you say that there is a web portal "where government officials can just straight up demand things be taken down," but that is not what the article says: "There is also a formalized process for government officials to directly flag content on Facebook or Instagram and request that it be throttled or suppressed." Now, again, maybe in reality those are not requests, but rather demands, but evidence for that conclusion is not in that supposedly damning article.
Not also that the article says that these efforts started during the Trump Administration, so I would not hold my breath re impeachment, absent evidence of very different behavior more recently.
In the final analysis, all of these companies have rules forbidding speech which is protected by the First Amendment. For govt officials to notify them that some post by User X violates those rules might be wrong, but it is awfully difficult to claim it is unconstitutional, let alone blatantly so. After all, if a user posts, "16 year old girl looking to get laid by adult" in a state where the age of consent is 16, that is protected speech which might well violate the terms of service; is it "blatantly unconstitutional" for a govt agency to notify the company of the existence of the post? Nor is it likely unconstitutional for the govt to help a social media company improve its methods of finding content that violates its terms of service; I assume that social media companies forbid gang-related speech (which, again, is protected by the First Amendment), but it would not be unconstitutional for the LAPD to inform FB that "slobs" is a derogatory term used by Crips to refer to Bloods.
So, again, although the actions set forth in that article might be immoral, poor policy, or 100 other things, we need a lot more specific evidence to conclude that it is unconstitutional at all, let alone blatantly unconstitutional.
Enough evidence to get them in legal trouble? Probably not. But there's a very dangerous aspect to the government knowing that they filed requests under the authority of the government and seeing the posts not come down. It's the kind of thing where the government can lean on a company and start asking some questions like "Why'd you refuse our request?" where both sides know that the government can make life hell for the company.
FB and Twitter are probably large enough that they could fight back, but it's not a good setup, imo.
Yes, I agree, and as I said social media companies IMHO should not be taking any of that stuff down (note, however, that the article states that only 35% of flagged posts were moderated). But there is a difference between1) the claim that what the government did was wrong; 2) what the government did was illegal; and 3) what the government did was blatantly illegal. The evidence for 2 and 3, given the current state of the law, is sorely lacking at this point.
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There's not enough to convict anyone in there, but give me a special prosecutor and a couple of years and I'll produce some heads. Ain't no way you run this kind of operation without committing some crime, and if necessary that's why we invented all those process crimes to go after clever criminal conspiracies. Then we can appeal it all the way to the keepers of anglo-american civilization and see how they think about "malinformation".
I'm going to just ignore all the accurate legalese you've painstakingly weeded through and say that, as it was with the NSA spying on everyone, even if the feds hired a legion of lawyers and greased every palm to make sure their treasonous conspiracy to subvert the constitution by laundering censorship through private companies can't be prosecuted, it doesn't change it's nature.
I don't really need to build an analogy since we have the NSA's blatant violation of the 4th amendment available, but let's do it anyways just for the fun of it.
Let's say that the government disbanded the Marines and hired them all back as PMC contractors, and let's say that they strongly hinted at asset management companies that they should let the contractors stay in the homes of their renters.
Is this a blatant 3a violation?
Moreover, if the answer is no, what the hell is the point of having a constitution?
As implied by the quote I cited, if by "strongly hinted" you mean threatened sanctions for failure to do so, then yes. There is plenty of caselaw on that very issue. And if that is what happened re social media, then there was a First Amendment violation here. But I already said that.
BTW, I don't want to go off on a tangent, but whether the NSA violated the Fourth Amendment is actually "a rather difficult question". See also here
I must say I find it pretty risible by now the way we pretend that it could ever be the case that the State can do anything without carrying with it the implied threat of it's might.
But alas, this is one of the load bearing fictions of Liberalism. The idea that State and society are distinct. I haven't dared yet to think of what lies beyond the shattering of that particular illusion.
The state and society are antithetical. Per hobbes society is the group of men agreeing to resolve their disputes through appeal to the sovereign... the sovereign is not a party to this deal, and remains forever in the state of war.
Thus societies ample ability to liquidate the state...
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TL;DR there will never be enough evidence to stop people saying "haha you can't prove it and also you deserve it"
Given the very first sentence in my post, I am very curious how you infer that I think "you deserve it."
I don't think he was referring to you as the 'people' above.
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Because it is unusual to see a 'free speech absolutist in most respects' who writes a post about government censorship of social media arguing that the government were maybe doing the wrong thing (but maybe just stemming the tide of real life porno scenarios) but were definitely not doing anything blatantly unconstitutional because they didn't have to force their comrades to cooperate with them.
You don't understand that all of the following can be true: "I think x is wrong," "I think x should be unconstitutional" and "x is not unconstitutional under current law"? You must have hated Justice Scalia. And anyone with principles.
I don't think I failed to understand anything. I even understand how you can use semantics to claim to be a free speech absolutist in most respects while excusing the government's censorship of its political enemies because everyone involved is ideologically aligned and so force isn't necessary. I've been watching social media companies do it for the past two decades.
Nope, you indeed failed to understand. Stating that x is wrong but not unconstitutional is not "excusing" it. It is called being an adult and acknowledging that all of my personal preferences are not magically enshrined in the Constitution.
Oh are we arguing about constitutionality? I thought we were arguing about how believable your claim to be a 'free speech absolutist in most respect [sic]' is. I contend it isn't particularly believable, because you seem way more interested in trying to shame people who don't understand constitutional law than discussing a prospiracy to suppress the speech of political opponents (because you have had ample opportunity over these posts to do either and have exclusively tried to do the first).
There is no shame in being ignorant of the niceties of constitutional law. As for the rest, perhaps you need to read more carefully.
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Arguing over whether something is constitutional is silly to start with. The only people deciding that are the Supreme Court, and if they could decide that growing your own crops for your own consumption is interstate commerce, then they can decide literally anything is or isn't constitutional.
The other problem with your argument is that it would mean U.S. citizens have basically no constitutional rights, as long as their violation is laundered through private companies.
Surely the OP's claim that the actions are "blatantly unconstitutional" was a claim that they are unconstitutional under current precedent, which is not a silly claim at all.
As for whether my argument means that US citizens have no rights at all "as long as their violation is laundered through private companies," I suggest you reread the quotation I included, which says the exact opposite. And see the voluminous caselaw on state action in general.
To clarify, I ultimately don't believe constitutions are paper documents or even lawyerly interpretations thereof but the living compact that creates a sovereign nation and makes it legitimate.
That's supposed to be the meaning of the word. The document is called after the compact, not the other way around. But I understand that isn't the most common usage.
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That still sounds pretty silly. A judge needs to decide whether what you bring up as precedent is relevant to a particular case.
Sorry, I guess I misunderstood. The disagreement is over whether it's blatantly unconstitutional or might be constitutional, not whether it's constitutional or not?
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