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naraburns  nihil supernum  1yr ago (text post)   Edited 1yr ago   34760 thread views

Culture War Roundup for the week of November 14, 2022

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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?

In these hypotheticals, Trump WAS the government; he is subject to the First Amendment only when he is a government official acting in the capacity thereof. So the answer would be the same in both cases. Today, as a private citizen, he is free to block whomever he wishes, so there is no need for him to ask Twitter to do it: "President Trump established his account, with the handle @realDonaldTrump, (the "Account") in March 2009. No one disputes that before he became President the Account was a purely private one or that once he leaves office the Account will presumably revert to its private status." Knight First Amendment Inst. at Columbia Univ. v. Trump, 928 F.3d 226, 231 (2d Cir. 2019).

The point is that "telling Twitter that it violates their terms of service" and "telling Twitter to get rid of something I disagree with" are identical, because Twitter's terms of service are vague enough that you can point to something you don't like and plausibly claim it violates Twitter's terms of service. So I don't see how you can distinguish between the government doing one and the government doing the other.

Even assuming that Twitter's rules of service are in fact that vague, which they do not seem to be, as I and others have pointed out many times, courts are not morons, and you are very unlikely to have hit upon a loophole that no one has thought of before. It has been the law for a good 80 years that vague rules which grant excessive discretion to silence speech are invalid, precisely because such rules can be "made the instrument of arbitrary suppression of free expression of views on national affairs." Hague v. C.I.O. 307 U.S. 496, 516 (1939). There are hundreds of cases on that issue.

Also, even if rules are not vague on their face, it is unconstitutional to enforce them in way which discriminates based on viewpoint. Eg: Hoye v. City of Oakland, 653 F.3d 835, 850-852 (9th Cir. 2011)[finding city enforced its facially valid "Bubble Ordinance" around abortion clinics in an impermissible manner by permitting individuals to approach another to offer help in accessing an abortion but forbidding approaching to discourage abortion].

It has been the law for a good 80 years that vague rules which grant excessive discretion to silence speech are invalid... even if rules are not vague on their face, it is unconstitutional to enforce them in way which discriminates based on viewpoint

In this scenario, it's Twitter which is enforcing the rules arbitrarily. Twitter will remove posts when the government says "this violates your terms of service", but only if in addition to being a government request, it fits Twitter's ideology. (Yet without the government request, Twitter wouldn't remove the posts.)

Is this wrong?

Wasn't the assumption that the government is in cahoots with Twitter, and that they were taking advantage of the vague rules as a cover for viewpoint discrimination? If the decision to discriminate based on viewpoint is wholly that of Twitter, there probably is not a constitutional issue.

Why don't we deal with a more realistic example: Twitter prohibits tweets "praising, celebrating, or condoning" violence, including but not limited to "violent acts committed by civilians that resulted in death or serious physical injury, e.g., murders, mass shootings; attacks carried out by terrorist organizations or violent extremist groups (as defined by our terrorism and violent extremism policy); and violent events that targeted protected groups, e.g., the Holocaust, Rwandan genocide." Such tweets are, however, protected speech under the First Amendment, and the government cannot ban or punish such statements. Can they, however, notify Twitter when they find such a tweet? My understanding of current law is that merely doing that would not convert Twitter's subsequent removal of said tweets into state action within the ambit of the First Amendment. Note that I said that that is MY UNDERSTANDING OF CURRENT LAW, not MY PERSONAL POLICY PREFERENCE. Because my personal policy preference is the opposite, as I have stated.

Now, it is possible that there is case law that says that the govt cannot alert a private party when it knows that the private party will then act in a manner that would violate the Constitution were the govt to do the same thing, perhaps dating to the civil rights era, or perhaps in the context of the Fourth Amendment. But I don't know of any.

Yet without the government request, Twitter wouldn't remove the posts.

That is definitely not enough to convert Twitter's action into state action; the Supreme Court has held that "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)

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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