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The printed media part is really telling. The print media have managed to maneuver themselves into a position wherein the government (probably rightly) doesn't feel it can get away with pressuring them to remove, say, a "factually incorrect" op-ed. I can't see the government being stupid enough to try do such a thing, and if it did I can't see it ever winning if it were taken to court. Self-crafted narratives about journalism being the nation's immune system against tyranny mean that journalists enjoy a much more generous interpretation of the First Amendment than plebs. When plebs say something "factually incorrect" according to the feds, it's not only within the government's rights to try to suppress that speech, it might even be their duty (it's impressive how consistently bad KBJs opinions are btw). This journalist/pleb distinction afaik doesn't exist in the constitution but here we are. If twitter anons had just written op-eds instead, even in a pop-up right-wing twitter website formatted like a newspaper I bet this case would be perceived very differently.
Also, the traceability argument is very strange. Does the First require the government to be successful in its attempts to limit speech or is the attempt enough? The former seems ridiculous and not at all in keeping with precedent. If the government throws someone in jail to stop their speech, but they keep espousing the same view in jail, or even if being imprisoned Streisand effect's their speech to greater prominence, that would still be an obvious 1A violation despite the government's actions not limiting their speech and perhaps even promoting it. Surely if the government takes an action intending to limit speech that would be illegal if successful, it must also be illegal if unsuccessful.
I'm not sure if the likely bad ruling is because of the desire to not feed the "rogue reactionary court" narrative, because of a general view that allowing the unwashed masses to say things online is so dangerous that the danger of allowing it outweighs the law itself, or because it's ruled that Covid was such a special circumstance that the law doesn't apply. None of these seem like good reasons to me. I'm considering going into law and think constitutional stuff could be interesting, but seeing how SCOTUS cases actually go is depressing.
Because it would never have happened in the first place. The lawsuit was filed because the government successfully pressured social media sites into censoring regime-critical opinions. A newspaper or journalistic outfit, even a very thoroughly regime aligned one, would have told the government to F off. This isn’t Europe; they can totally do that even if they later get nailed for some technical tax issue that no one in history has ever been prosecuted for. You’ll notice Fox News isn’t at the center of this case.
It’s a form of harassment. The newspaper or TV network is happy to go to court against the government; indeed it’s a great story if Fox News or the Wall Street Journal can regularly update its readers on the government’s attempted censorship of its journalists.
But for Meta, which doesn’t really make any money from news (barring some meager ad sales on news videos), government attention is only negative. Zuck didn’t have to fold, but at the same time, Zuck doesn’t want to waste half his year in endless hearings at the FTC or in whichever congressional chamber the Dems have a majority.
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This is another one where I thought Aguinaga knocked it out of the park:
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When I explain these sorts of cases to my wife, she asks why I'm not interested in doing law, and every time, I wind up answering that this is exactly why I don't want to! You can have a case that just seems obviously, incontrovertibly correct, but if you've got a justice that already decided what they'd like to do, it's not very hard for them to use brilliant legal reasoning to do what they want to do.
Not a lawyer, but I think this is much less of an issue in the day-to-day practice of law than when one's arguing novel and politically charged issues in front of the Supreme Court, or even in the kinds of court cases that you hear about in the news.
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I came to the same conclusion a long time ago. Think of cases where an employee for a company was doing something stupid in violation of all OHSA, safety protocols, policy and direct orders from their manager. The employee now has a disability/requires ongoing expensive medical care. A judge will often twist the law into a pretzel to justify giving the employee money because the employee needs money to live and the company is involved and has money. Simple as that. Legalese is just the obfuscating ink cloud to provide some plausible deniability for the erroneous judgment.
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Probably the most frustrating aspect of legal practice when you're autistically determined to reach the 'right' conclusion as a matter of law.
You can come armed to the teeth with precedent, facts, and legal argumentation and if you run into a Judge who is dead set on ruling a certain way you can 'lose' when they either rely on some particularly ambiguous precedent or some esoteric dissent or some novel legal concept they pulled straight from thin air (or read in a creative law review journal).
The Spirit of Aloha, for example.
Hence why I prefer when the Supreme Court sets out rules that at least sort of tie the law to something tangible and mostly immovable, rather than trying to weave increasingly intricate webs of reasoning to maintain an increasingly farcical standard which keeps collapsing when it comes into contact with the real world.
To be fair to Hawaii's Supreme Court, the spirit of aloha is a state legal standard established by statute in 1986. To be fair to anyone reading, normally statutes don't override constitutions, and this is definitely an example of a statute so hilariously vague that it's given judges a blank check to decide whatever they want.
Yep, quite fair.
I'm not even mad that they cite it, rather that the promulgate the idea that it can override constitutional rights and effectively grant the government extra authority if it argues for it artfully enough.
I'd be okay, on the other hand, referring to the "The Spirit of the Revolution" embodied by the Declaration of Independence as a justification for ignoring government restrictions in most cases.
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It's because conservatives are generally in favor of censorship (which I suppose is closest to your "unwashed masses" suggestion), and leftists are generally in favor of censorship of the right. So we get a First Amendment that only applies to left-wing views. I'm sure if the government pressure in this case had been over information about how kids can access resources on queer sexuality, there'd be 3 more votes for "no you can't do that".
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