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naraburns  nihil supernum  2yr ago (text post)   Edited 2yr ago   34789 thread views

Culture War Roundup for the week of November 14, 2022

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We are talking about whether he should be restored now, are we not?

Yeah, and a question asked in this comment chain was: "No, seriously, what's so important about Twitter/FB that the POTUS needs to be on it?". So we are discussing a scenario where he's the POTUS, right?

it is whether a govt social media account can engage in viewpoint discrimination. The case was about the right to speak

But it wasn't a government social media account, and no one's right to speak was limited. Even if we decide that both of those things are true just because the court said so, that just means Twitter is limiting the right to speak of all Twitter users.

But it wasn't a government social media account ... and no one's right to speak was limited

Except that the court held that indeed it was, for First Amendment purposes, and that indeed they were, under very longstanding principles of First Amendment law.

that just means Twitter is limiting the right to speak of all Twitter users.

You have your facts wrong. The issue was Trump blocking people, not Twitter. Note that in court, Trump did NOT argue that Twitter was blocking anyone, but that he was, but that he was doing so as a private person. Alternatively, he argued that doing so was "government speech" -- a terrible argument, but nevertheless a refutation of the claim that Twitter was the one doing the blocking.

Except that the court held that indeed it was, for First Amendment purposes, and that indeed they were, under very longstanding principles of First Amendment law.

I don't believe that a judge saying something automatically makes it true.

You have your facts wrong.

No I don't. I agree with the facts as you stated them.

The issue was Trump blocking people, not Twitter. Note that in court, Trump did NOT argue that Twitter was blocking anyone, but that he was, but that he was doing so as a private person.

So just as a hypothetical, if Trump asked Twitter to block that journalist from responding to him, and Twitter obliged, that would have been fine, according to you?

I don't believe that a judge saying something automatically makes it true

Perhaps not, but when a judge reaches a conclusion by applying well-established law to uncontroverted facts, it is incumbent upon those who claim that the judge has erred to explain why, not simply to say "in my untutored opinion, it is wrong."

So just as a hypothetical, if Trump asked Twitter to block that journalist from responding to him, and Twitter obliged, that would have been fine, according to you?

No, because under even more well-established law, that sort of joint action would probably constitute state action and hence bring Twitter's action under the ambit of the First Amendment.

Perhaps not, but when a judge reaches a conclusion by applying well-established law to uncontroverted facts, it is incumbent upon those who claim that the judge has erred to explain why, not simply to say "in my untutored opinion, it is wrong."

If he did, in fact reach that conclusion by applying principles, you can bring that reasoning up in the discussion, rather than just say "a court said it".

No, because under even more well-established law, that sort of joint action would probably constitute state action and hence bring Twitter's action under the ambit of the First Amendment.

Cool. So since we know various alphabet agencies have access to an API where they can ask for the removal of content, would you then agree that if Trump's account was banned following such a request, then the ban was illegal?

If he did, in fact reach that conclusion by applying principles, you can bring that reasoning up in the discussion, rather than just say "a court said it".

  1. It wasn't a "he", it was a they - a three-judge panel of the Second Circuit

  2. The decision is easy enough to find, and of course it cites all sorts of black letter law. It appears, to anyone who is at all familiar with First Amendment law, to be pretty much a no brainer - which is probably why the decision was unanimous, and why the petition for rehearing en banc was denied.

So since we know various alphabet agencies have access to an API where they can ask for the removal of content, would you then agree that if Trump's account was banned following such a request, then the ban was illegal?

As always re state action, that depends on the specific facts. For example, if the govt is merely telling Twitter that they found a tweet that they think violates Twitter's terms of service, then no. If they said, "remove this tweet or else," then yes. If it is somewhere in between, then it depends. I do note that the very article you link says that social media companies took action on only 35 percent of the items flagged by the government, which seems to imply that this is closer to the former than to the latter.

BTW, AFAIK, Twitter, et al, are wrong to censor any speech that is protected under the First Amendment, which includes pretty much everything Trump has ever said (other than some things that might constitute defamation). But, unfortunately, the law currently allows them to do so. Perhaps that will change; with any luck, Florida and Texas will win their lawsuits on that very issue.

For example, if the govt is merely telling Twitter that they found a tweet that they think violates Twitter's terms of service, then no.

Then why is it wrong when Trump is "merely telling Twitter" to remove something?

The key part is NOT the "merely telling" part, but rather the "violates Twitter's term of service" part, versus "they are expressing a viewpoint I disagree with."

PS: You ask, why is one "wrong" while the other isn't, but as I said, IMHO both are wrong (at least re terms of service re speech that is protected from government censorship by the First Amendment), but only one is legally problematic.

What if Trump told Twitter that something should be removed because it violates Twitter's terms of service, but Twitter's terms of service are vague enough that almost anything could be said to violate or not violate it? And what if the government told Twitter to remove something under similar circumstances?

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It wasn't a "he", it was a the

Not relevant.

The decision is easy enough to find

Everything we talk about here is easy enough to find. What's the point of participating in a discussion, if you're just going act like this?

As always re state action, that depends on the specific facts. For example, if the govt is merely telling Twitter that they found a tweet that they think violates Twitter's terms of service, then no. If they said, "remove this tweet or else," then yes.

Why was it so clear cut when the scenario was "Trump asks them to have the person blocked", and suddenly there so many things to consider when the scenario is "the FBI asks for Trump to be banned"? Keep in mind my original scenario did not involve an "or else".

Note that I actually said not that it was probably state action. The general rule is that if govt can't do X, it cannot enlist a private party to do X in its stead. That is particularly the case re such bedrock violations as viewpoint discrimination. But if Trump had been able to demonstrate that the comments violated the company's existing terms of service, that would be different -- that is not enlisting a private party to do anything it was not already doing. But AFAIK, no one has made that claim, including Trump.

PS: Did, in fact, the FBI ask for Trump to be banned? Because the article you link doesn't say that.

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