Today’s 5th Circuit Decision–Netchoice v Ken Paxton–Stuns Big Tech

Today's Netchoice opinion out of the 5th Circuit stuns Big Tech, which claimed that it had a First Amendment right to muzzle viewpoints of users. No you don't, said the Court. An excerpt:

A Texas statute named House Bill 20 generally prohibits large social media platforms from censoring speech based on the viewpoint of its speaker. The platforms urge us to hold that the statute is facially unconstitutional and hence cannot be applied to anyone at any time and under any circumstances.

In urging such sweeping relief, the platforms offer a rather odd inversion of the First Amendment. That Amendment, of course, protects every person’s right to “the freedom of speech.” But the platforms argue that buried somewhere in the person’s enumerated right to free speech lies a corporation’s unenumerated right to muzzle speech.

The implications of the platforms’ argument are staggering. On the platforms’ view, email providers, mobile phone companies, and banks could cancel the accounts of anyone who sends an email, makes a phone call, or spends money in support of a disfavored political party, candidate, or business. What’s worse, the platforms argue that a business can acquire a dominant market position by holding itself out as open to everyone—as Twitter did in championing itself as “the free speech wing of the free speech party.” Blue Br. at 6 & n.4. Then, having cemented itself as the monopolist of “the modern public square,” Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017), Twitter unapologetically argues that it could turn around and ban all pro-LGBT speech for no other reason than its employees want to pick on members of that community, Oral Arg. at 22:39–22:52.

Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say. Because the district court held otherwise, we reverse its injunction and remand for further proceedings.

In the meantime, during Congressional testimony, Facebook admits that it has been coordinating with the Whitehouse & CDC to censor FB users' constitutionally protected speech.

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FIRE Files Suit to Address First Amendment Problems with Florida’s “Stop Woke Act”

Once again, FIRE steps up when First Amendment rights are threatened. No matter where someone is on the political spectrum, good intentions are a poor guide to abiding by the First Amendment. This time, the problem is Florida's Stop Woke Act. Excerpt from FIRE's press release:

The First Amendment doesn’t allow Florida law to declare which concepts are too challenging for students and faculty to discuss in a college classroom.

Stop WOKE Act restricts college student and faculty members’ ability to play devil’s advocate, express viewpoints University of South Florida’s First Amendment Forum is the first student group to challenge the law in court TAMPA, Fla., Sept. 6, 2022 — To protect free speech, the government must censor. That’s the absurd argument put forth by Florida lawmakers in the controversial “Stop WOKE Act.”

The law suppresses viewpoints disfavored by Florida lawmakers, threatens tens of millions of dollars in annual funding for universities that don’t crack down on faculty who “promote” an opinion on a government blacklist, and encourages people to report other Americans to government authorities if they “advance” those views — all in the name of “individual freedom.”

Today, a professor and student group from the University of South Florida sued to protect professors’ ability to teach and students’ ability to learn. The lawsuit, filed by the Foundation for Individual Rights and Expression, alleges that the higher education provisions of Florida’s “Individual Freedom” law (dubbed the “Stop WOKE Act” by its proponents), impermissibly chill free expression and promote unconstitutional censorship on the state’s college campuses.

“Without the freedom to engage in vigorous and robust debate about important issues and contentious concepts, a college education is just an exercise in memorizing facts and repeating government-approved viewpoints,” said FIRE attorney Adam Steinbaugh. “That’s not freedom or education.”

The Stop WOKE Act, passed on an exclusively party-line vote and signed by Gov. Ron DeSantis on April 22, prohibits “instruction” on eight specific “concepts” related to “race, color, national origin, or sex”that may run counter to government officials’ notions of “freedom.” For example, the bill unlawfully restricts discussions of advantages or disadvantages of a particular race or sex; whether individuals are unconsciously biased based on race or sex; and whether certain virtues — including “merit, excellence, hard work, fairness, neutrality, objectivity, and racial colorblindness” — are racist.

But in restricting which ideas may be considered in a college classroom, Florida’s political leaders ran headlong into the First Amendment.

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Dysfunctional Conversation at Colleges, By the Numbers.

New report by FIRE and the news is not good:

More than three in five students (63%) expressed worry about damaging their reputation because of someone misunderstanding what they have said or done, and just over one in five (21%) reported that they feel a lot of pressure to avoid discussing controversial topics in their classes.

Twenty-two percent reported that they often self-censor. Roughly three in five students reported they would feel discomfort publicly disagreeing with a professor about a controversial topic or expressing an unpopular opinion to their peers on a social media account tied to their name.

At this link, you can download FIRE's brand new report.

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Caitlyn Flanagan’s Warning About Free Speech

We still have a First Amendment, but Caitlyn Flanagan warns us that we are closing up shop on free speech:

America was the first country in history to enshrine a formal, legal, and enforceable protection for free expression, ensuring that people have the right to speak no matter who’s pissed off or how powerful they are.

Whenever a society collapses in on itself, free speech is the first thing to go. That’s how you know we’re in the process of closing up shop. Our legal protections remain in place—that’s why so many of us were able to smack the Trump piñata to such effect—but the culture of free speech is eroding every day. Ask an Oberlin student—fresh outta Shaker Heights, coming in hot, with a heart as big as all outdoors and a 3 in AP Bio—to tell you what speech is acceptable, and she’ll tell you that it’s speech that doesn’t hurt the feelings of anyone belonging to a protected class.

And here we are, running out the clock on the American epilogue. The people on the far right are dangerous lunatics and millions on even the center left want to rewrite the genetic code.

If you don’t want to stick around for the fire sale (The Federalist Papers! “Letter From Birmingham Jail”! Everything must go!) and you’re not too eager to get knifed on a Friday morning because of something you said, you might want to look into relocating to one of the other countries shaped by the principles of the American Revolution. They aren’t hard to find. Just go to Google and type in the free world.

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Rumble’s Antitrust Suit Against Google

Matt Stoller offers an update on this case. Is it really about Google prioritizing certain viewpoints?

Many Republicans believe that progressives are running Google or other big firms, and these executives are making censorship choices about how to elect more Democrats or foist health choices on the public. They do this, so goes the theory, even if it means making less money. While it's certainly the case that plenty of conservatives get knocked off big tech platforms, so do many others with all sorts of viewpoints (like pro-choice advocates marketing abortion pills on Instagram). More importantly, Google executives are heavily motivated by money, and they would vastly prefer not to have to deal with difficult censorship decisions that amount to which politically powerful customers to piss off.

What is really happening is that these firms are trying to monopolize a market, and then exploit their resulting power to generate cash. Only, in speech or cultural markets, fostering a monopoly means not only that you are able to extract profits. It also means, willingly or no, you become a powerful influence over speech. Large publishing houses choose who gets published and who doesn’t, and that confers significant power. The more dominant the publishing house, the more power. Search engines or social networks are vastly more concentrated, but a similar dynamic exists. Once you control society’s single search engine or social network, editorial choices, whichever direction they lead, help determine what is heard in the public square. So what these executives are doing isn’t trying to censor, but trying to ensure that they have market power in targeted advertising, search advertising or book sales. They simply end up as speech police, because that’s what it means when you build a monopoly that can determine who gets to be heard and who doesn’t.

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