Technology

Conservative Attacks on 'Big Tech' Are Turning the Constitution on Its Head

No, states can't use the 10th Amendment to overturn the First Amendment.

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Throughout my life, conservatives have believed the U.S. Constitution means what its authors intended. While it can sometimes be challenging to apply the document's verbiage to modern times, conservatives know that when the founders wrote, "Congress shall make no law" they meant that, "Congress shall make no law." Easy peasy, as the saying goes.

By contrast, liberals have often championed a "living and breathing" Constitution—one that evolves with the times. They don't mean proper change via amendment, but through "enlightened" court interpretations. Like shamans, liberal justices don't obsess over the founders' intentions, but on truths found in penumbras. Go figure, but their divinations usually conform to their own biases.

In a bizarre twist, conservatives are now sounding like liberal jurists rather than traditionalists on some key constitutional questions. Let's take the First Amendment, which the founders viewed with particular significance given that they placed it, well, first in the Bill of Rights. These days, conservatives are busy reinterpreting its meaning and have been quite creative with their new interpretations and divination.

For instance, Florida's Republican Gov. Ron DeSantis recently signed a law that applies governmental moderating standards to social-media companies. It fines tech companies if they suspend political candidates prior to elections, lets the state attorney general and even private citizens sue these companies if they believe they've been treated unfairly, and gives online publishers a list of enforceable editorial conditions.

That's obviously a government restriction on speech given that the government is mandating that private publishers behave in a certain way. Yet writing in American Spectator, the Heartland Institute's S.T. Karnick has discovered such a novel method of interpreting that law that he would have made former Justice Thurgood Marshall, the late justice who was known for his creative constitutional gyrations, quite proud.

"Defenders of Big Tech routinely argue that these companies have a right to do whatever they want because they are not government entities. That is false," Karnick wrote. "The fact that they are in the private sector does not change the definition of the word" censorship. If we erase the distinction between private censorship (which we all do) and government censorship, however, we essentially erase the First Amendment.

The Constitution forbids Congress specifically from regulating private speech, but then the 14th Amendment applied most of the Bill of Rights to the states and their governments. Karnick also argues that the 10th Amendment gives Florida the right to exercise its authority on this basic-rights issue, which is a rather odd position for a conservative.

If the 10th Amendment, which vests many powers in the states rather than the federal government, can be justified to obliterate constitutionally protected rights, then California can ban firearm ownership, despite what the Second Amendment says. If you don't think rights should apply to tech companies whose decisions anger you, then they might not apply when your decisions anger others.

The "Fairness Doctrine," which mandated equal time for political views on "public" airwaves, offers a template for what conservatives now are suggesting. Its elimination allowed for the proliferation of conservative talk radio, given that such imbalanced programming previously was verboten. What would happen if the Biden administration could force broadcast outlets to balance the views of Mark Levin and Tucker Carlson? Take a guess.

Many of these conservatives are like liberals in another important way. They seek to control private-sector companies because they don't like how they operate. For instance, David Marcus complained in a Fox News column last week about the media's Johnny-come-lately coverage of the theory that the coronavirus emerged from a Chinese laboratory.

Yes, the media mostly treated that story as a conspiracy when Donald Trump had postulated it—but are treating it seriously now that Trump is gone. So what? Publications can print whatever they choose, some do a lousy job and all of them are biased. My conclusion is the media should learn from its mistakes, but Marcus' take is more draconian.

"Nobody is checking the fact checkers, and it is time that changed," he wrote. "It's time for government to regulate the fact checking industry." He named Politifact and Associated Press as examples of organizations that need government oversight as they advise social media—even though they are journalism organizations.

Marcus claims the First Amendment forbids regulation of "in-house" fact checkers, but he carves out the exception for independent checkers—something he appears to have pulled from thin air just like the living-and-breathing jurists. "This may seem antithetical to traditional conservative values of small government," he says, but we ought not be "slaves to orthodoxy."

Perhaps the Biden administration should appoint a regulator to fact-check Marcus' writing for the next few weeks—and then he can report on the experience. Thanks to First Amendment "orthodoxy" that won't happen, but it's time for conservatives to grow a thicker skin and stop attacking the constitutional protections all of us enjoy.

This column was first published in The Orange County Register.

NEXT: The Media's Lab Leak Debacle Shows Why Banning 'Misinformation' Is a Terrible Idea

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  1. How come the only time I hear about the Constitution anymore is when it’s being used to bludgeon the descendants of the people who wrote it?

    You can take that constitution and shove it sideways up your ass.

    1. So the founding fathers were speech controllers? Defending free speech defames them and their descendants? What else do you have for us today? Trumpanzees gone apeshit at the Gates of Zirn, did it for the love of the “rule of law”, and for procedural, voter-driven democracy?

      1. No, big tech are speech controllers.

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    2. Didn’t realize any Italians let alone a DeSantis wrote the Constitution.

      Our downfall was letting in the descendant’s of Rome into our country; what have the Roman’s every done for us, apart from medicine, irrigation, health, roads, cheese and education, baths and the Circus Maximus.

      1. You forgot Romanian Lettuce! Lettuce all praise Romanian Lettuce!

        1. Lettuce all praise Romanian Lettuce!
          Romaine.
          All hail Ceasar dressing

          1. Who made the salad?

            1. Emerson, Lake & Palmer made the salad!

              Care for some brain salad?

              https://en.wikipedia.org/wiki/Brain_Salad_Surgery

    3. Commies at unreason always forget that corporations are subject to state regulation, even if it violates the 1st Amendment.

      Americans have constitutionally protected rights under the constitution. Corporations have select rights.

      Lefties cant have it both ways. They cant ban church services during Kungflu hysteria but demand Friendface and Twatter are protected from state law preventing arbitrary discrimination.

      Since America is in Civil war 2.0 anyways, Lefties have no constitutional protections as far as Im concerned.

    4. Big Tech 100% wants to control the narrative in this country. Big Tech was given immunity through section 230 to provide a platform for users to freely speak and say whatever they want without the Big Tech companies being held liable for content. Big Tech over time decided to start censoring people. The deal is void. You start controlling the speech, you lose section 230 and you act under the same laws as a news organization. Florida forcing them to allow all speech is EXACTLY what they were required to do under section 230 in the first place. It’s the very reason they were given immunity. Retards everywhere!!!! Who is this author? Wtf?

  2. Cue the conservaturd commentators and speech controller wannabes here, to loudly proclaim their love of the Constitution, while actually believing (and acting) as if “Constitutional” means “whatever we can get away with. And if we need to bash a few heads and have a few “Constitutional” insurrections to get our way, so be it! Eggs and omelettes, you know!”

    1. After reading a goodly portion of the Fauci email escapade this week, I see how it’s liberals blurring the line between free speech and censorship. With Zuckerberg asking “Tony” dozens of times how Facebook could assist his overreach and flat out lies in the whole “pandemic” charade, it’s clear that the social media behemoths are thicker than thieves with the libs embedded in the federal govt. These companies (Twitter, Facebook, Instagram) have moved far beyond what they try to portray themselves as, simple mom and pop companies just trying to do what’s best for everybody. They censored the speech of a sitting US President merely because they didn’t agree with him politically. Every move they made in this fiasco was designed to drive up the fear factor of this fake flu pandemic in order to enable the libs to conduct a wholesale raid on the electoral system.of America. The entire mask bullshit, which depending on which flip flop of Fauci’s you believe was necessary or just a show to “give people hope”, was used by leftists to shutter schools for the best part of 2 years, depriving children of social activities such as sports, proms, and various school clubs. Where does this generation go to to get the best years of their young lives back? No one has asked that question as they busily Zoom the CRT and Gender Equity bullshit into the brains of their captive audience, with no pesky school boards or parents to get in the way. These companies need to be brought under the control of some kind of organization in order to ensure they don’t use their “fact checking” to change the way America receives their information any more than they already have. DeSantis at least has the balls to try something, which is a far cry from.what Biden and Cackling Kamala have done.

      1. “…was used by leftists to…(dictate, rule by fear)” Govt. is force, not reason, rights, choice, which, used for any reason, by anyone, is immoral and impractical, in the long run. That explains why/how the constitution which institutionalizes force is unAmerican, an irrational attack on rights. It amounts to violating rights in the name of protecting them. Tacking on “T.D.I.” and “TBOR” was a political trick to get the states to accept what amounted to an attack on state sovereignty.
        But being ruled by a state mob Is just as bad. Only govt. by reason, rights, choice is sustainable. By choice, I mean personal choice, not a mob or a majority, choosing for everyone, like it or not. That’s how we got “Prohibition”, an embarrassment to a so-called “land of the free”.

      2. The former president is still going around spreading lies about the 2020 election. He’s committing ongoing violence to the very idea of the United States. We are an embarrassment, and may never regain our stature, and that’s gonna suck for you considering our global stature was the only thing papering over a bunch of terrible rotting domestic policy outcomes. And that’s if we don’t outright become the next Poland.

        Facebook got that orange cunt elected and created his very own cult. To truly rectify what they have done, they should self-immolate.

  3. 1. “While it can sometimes be challenging to apply the document’s verbiage to modern times, conservatives know that when the founders wrote, “Congress shall make no law” they meant that, “Congress shall make no law.” Easy peasy, as the saying goes.”

    Great point; now do “shall not be infringed”.

    2. “That’s obviously a government restriction on speech given that the government is mandating that private publishers behave in a certain way.”

    Except that, by law, they are NOT publishers. A significant distinction. Would you feel different if the law prohibited the burning of all newspapers that carried a certain candidate?

    3. “can be justified to obliterate constitutionally protected rights, then California can ban firearm ownership, despite what the Second Amendment says.”

    And they are doing so – – – –

    4. “Yes, the media mostly treated that story as a conspiracy when Donald Trump had postulated it—but are treating it seriously now that Trump is gone. So what?”

    So such clearly political operations are not reported as campaign contributions, in violation of federal election laws.

    1. He also misses the fact that ending 230 won’t force speech on these companies, it would just open them up to lawsuits they previously were not open to.

      1. +1000000000000000000000000000000000

      2. In this rare instance a governmental concept turned into law and had the desired effect. Section 230 was put in place so that hundreds of billions of dollars of investment in the roll out of the internet (and co-axial cable) would occur. So the pipelines rolled out including the Internet Search Providers (ISP). Sites like Facebook and Twitter are certainly publishers, not pipelines. They should not operate with exception to liability.

    2. “While it can sometimes be challenging to apply the document’s verbiage to modern times, conservatives know that when the founders wrote, “Congress shall make no law” they meant that, “Congress shall make no law.” Easy peasy, as the saying goes.”

      Wouldn’t the law that contains Section 230 be in violation of this?

  4. Let’s take the First Amendment, which the founders viewed with particular significance given that they placed it, well, first in the Bill of Rights.

    They didn’t place it first. The first amendment in the list sent off to the states for ratification was the amendment that determined how the House of Representatives would grow in size with population increases. With a constitutionally driven formula at the cap (one district for every 50,000 people) that would have resulted in a House of 6000+ members today.

    Which fell one state short of ratification very early on (coastal states without a ‘frontier’ to expand population into opposed it – and then people realized there was a typo in the amendment)

    1. “that would have resulted in a House of 6000+ members today.”

      Would that have required the representatives to speak from anti-gravitational pods floating around a huge chamber?

      1. Womp womp. Again.

  5. “It’s time for government to regulate the fact checking industry.”

    Behold the modern right.

    1. And the saintly, enlightened modern left? Something about thought crime?

    2. Yeah jeffster will never get this right no matter how hard he tries. It’s all the fat cells interfering with his brain function and the loads of twinkies in his gut.

    3. Jeff prefers political fact checks that can silence speech.

      He never speaks against this behavior. For him if it isnlegal it is fine. He is a fascist. Slavery by corporations working in line with government makes jeff a jolly boy.

  6. it’s time for conservatives to grow a thicker skin and stop attacking the constitutional protections all of us enjoy

    And what about progressives? What should they do? Or are they not attacking the Constitution when they push for “hate speech” exemptions to the First, gun control laws contrary to the Second, abolition of the Electoral College and proportional representation of the states in the Senate, a federal take-over of state election laws, blatant discrimination based on race and sex and national origin, a demand that the President ignore his oath of office and the separation of powers, and so much more?

    1. The usual cast of characters is about to show up and complain about your “both sides” not being the same thing. Because to them, hate speech is the same as yelling “FIRE!” in a crowded theater. Meanwhile, making the social media companies decide whether they want to be content moderating entities that are responsible for what their editors allow to be published, exposing them to libel lawsuits, or outlets for user generated content where they are shielded by Section 230, is Nazism.

      1. Section 230 does not make these distinctions.

    2. How do you manage to survive at work? This habit of continually evading responsibility for something in your control while pointing the finger at someone else is like poison in a workplace and the fastest way of destroying relations with customers.

      I don’t understand how this habit persists when talking politics because in the workplace it gets you fired by the end of the day. It’s pervasive here – and I don’t mean this comment personally. Are you people retired and just yelling get off my lawn?

    3. Look, you know the drill. Conservatives are always wrong. Progressives are occasionally misguided.

    4. Two wrongs don’t make a right, children.

  7. “The constitution says that Facebook has to post my trump-is-jesus memes!!! If they don’t I’m being persecuted!!!”

    1. “The election was stolen by $150,000 in Facebook ads!”

    2. Trump-is-Jesus? https://www.bbc.com/news/av/world-us-canada-49429661
      President Trump: ‘I am the chosen one’

      He STILL IS The Chosen One! Chosen by The People’s Votes!!!

      Fluoridated water is chock-full of tiny little Hunter Biden homunculi (one each per each fluorine atom, with a tiny sub-atomic Hunter Biden working the tiny little brain-control levers, and chucking an evil laugh) as they FORCED tens of millions of fluoridated-water-drinking voters to NOT vote for Trump! AGAINST their wills!

      Had it NOT been for trillions of tiny little EVIL Hunter Biden homunculi, Dear Leader Chosen One would still be in power!

    3. Strawman arguments seem endemic to leftist posters.

      1. Strawman? Florida literally just passed a law saying facebook had to host all politicians.

        Are you really that dense?

        1. From one strawman to another. Are you really that dense?

        2. Like when Trump had to not block his Twatter followers?

          Civil War 2.0 means that Lefties have no constitutional protections anymore.

  8. That this article directly follows Soave’s piece on the abject corruption of the social media platforms attempting to suppress “misinformation” is hilarious. It is arguable that how the GOP is attempting to combat this problem is legally sound, but the practices of Big Tech are no longer philosophically defensible.

    1. The First Amendment also covers speech you disapprove of. There is nothing incompatible about both articles.

  9. Probably the thing to do is to break up Twitter and Facebook, maybe even Google, into smaller entities. Standard Oil had about 80% of the market for about twenty years and the price of kerosene, the big seller in those pre-automotive days, dropped the whole time. Still the company was broken up. The same arguments used for that – arguments strongly supported by the tech giants – could be used again.
    The silencing of any discussion not beneficial to Progressives is the cause of these awful proposals to use government power in the nature of public discussion. We should let there be a market again.

    1. Hey, nothing is allowed to get bigger than government.

  10. “Throughout my life, conservatives have believed the U.S. Constitution means what its authors intended.”

    LOL

  11. https://twitter.com/peterboghossian/status/1400610740478693376?s=19

    We warned you. Few listened. Now, here we are: 

    What Happens When Doctors Can’t Tell the Truth? Whole areas of research are off-limits. Top physicians treat patients based on race. An ideological ‘purge’ is underway in American medicine. [Link]

    1. For a minute I thought you might be talking about the psychiatrist who just lectured at Yale about how she wanted to “fire a revolver into the head of any white person she saw“. Her lecture was about psychopathy among white people BTW.
      https://bariweiss.substack.com/p/the-psychopathic-problem-of-the-white

  12. The conservatives’ actions are being driven by concerns about the outcome of the antitrust suits that are progressing against Facebook and Google. The progressives pushing those suits and negotiating the consent decrees are openly pushing them to exclude opinions that are typical of conservatives. After all, in the progressive mind, opposition to abortion is misogynistic, support for a border wall is xenophobic, opposition to gay marriage is homophobic, and opposition to affirmative action and reparations is racist.

    Progressives are openly advocating regulation for social media and break ups over their failure to restrict this speech, and we haven’t even started talking about the way social media clamps down on “conspiracy theories” like the ones about the lab leak and Hunter Biden’s emails. Expecting conservatives at the state level to take that lying down is unreasonable. And even if protecting the speech of conservatives violates the First Amendment, isn’t more speech better in that regard than progressives censoring it–even if neither option is desirable or just?

    Regardless, this issue is much like the coverage I see of states that are supposedly attacks voting rights. If we’re not talking about those actions against the backdrop of H.R. 1, we’re not really discussing the whole issue. These things happening in the states aren’t happening in a vacuum, and some of them are happening as a reaction to other things that are happening at the federal level. Telling us that the price of bottled water is going up isn’t really telling us the whole story if what’s really happening is that there’s an enormous hurricane headed our way.

    1. +1000000000

      Corporations are not entitled to all the same constitutional protections as individual Americans. They get many of them but not all.

      Anti-Trust legal actions scare the Lefties because they are usually popular and very effective in knocking certain corporations down a peg in how much power they think they have.

      Especially once the primary motivation for Fuckface and Twatter is not making money but undermining our Constitution and election integrity.

    2. I’m sure someone will be along shortly to complain about your post.

  13. https://twitter.com/NationalFile/status/1400565563802456068?s=19

    BREAKING: Twitter suspended ICAN after they announced their plans to release thousands more of Anthony Fauci’s emails, also obtained through a FOIA request.

    [Link]

    1. Argument by anecdote. How original.

      1. Do you blindly ignore any and everything that ruins your little bubble?

      2. Are you saying ICAN wasn’t suspended? Or that it didn’t happen after their announcement?

  14. ‘By contrast, liberals have often championed a “living and breathing” Constitution—one that evolves with the times.’

    At least until they can strangle it in a bath tub.

  15. WTF!! Talk about some of the most deceiving smelly lefty-propaganda B.S. Democrats are the one’s who want to repeal Section 230 for censorship. Republicans want to repeal Section 230 for ‘private property’ forced freedom of speech.

    Reason; blame conservatives for what democrats want to do??
    This B.S. is getting unbelievable.

    1. You need to re-read Alinsky.

  16. Having quickly looked up Gitlow v New York, which seems to be the case cited for the proposition that the 1st Amendment is incorporated against the States by the 14th Amendment, I was surprised to find that the majority opinion has no more than this to say :

    The precise question presented, and the only question which we can consider under this writ of error, then is whether the statute, as construed and applied in this case by the state courts, deprived the defendant of his liberty of expression in violation of the due process clause of the Fourteenth Amendment……

    …….For present purposes, we may and do assume that freedom of speech and of the press which are protected by the First Amendment from abridgment by Congress are among the fundamental personal rights and “liberties” protected by the due process clause of the Fourteenth Amendment from impairment by the States. We do not regard the incidental statement in Prudential Ins. Co. v. Cheek, 259 U. S. 530, 259 U. S. 543, that the Fourteenth Amendment imposes no restrictions on the States concerning freedom of speech, as determinative of this question.

    In other words :

    (a) the question presented seems to have stipulated the incorporation of the 1st Amendment against the States, and so the court did not decide that, it just assumed it, and
    (b) there was prior obiter against the idea of incorporation

    So rather thin.

    And textually, the argument that the 1st is so incorporated seems much thinner than for say the 2nd Amendment.

    It would obviously be rather inconvenient if the 1st Amendment did not apply against the States, but it’s not at all obvious that the text supports it. Incorporation is of course an ancient and much chewed slipper, but since conservative jurists are not supposed to be rooting for conservative policy, per se, but for conservative methodology, ie the primacy of the text, it’s not unconservative to doubt that stuff that judges pulled out of their rear ends 100 years ago is any more faithful to the Constitution than the stuff they pull out of the same place these days.

  17. social media is social corrosion, which libertarians love (look at Somalia a typical libertarian project).

    1. Belarus is a typical conservaturd project. Please move there… THEY would appreciate your “thoughts”!

    2. Commies hiding as Libertarians like those things.

  18. While some conservative intellectuals honored the first amendment, others did not, and the conservative base never did. This has been so since the beginning. The first amendment gave you the right to say the correct things, print the correct things, and belong to the mainstream Christian denomination of your choice.

    Court advances in the first amendment have generally been considered to be liberal or progressive advancements. The erosion of obscenity and pornography laws, for example. The Ginsburg case, the Flynt case, the Lenny Bruce case. All progressive touchstones of history. The only exception is religion, and then only recently, and then only in regards to Abortion. Catholic charities not having to buy birth control for their employees is now a right revered by the same ideology that decries the idea of Native American religious ritual using Peyote, the same ideology sometimes suggests the outright banning of Islam.

    Conservatives are NOT libertarians, despite some resemblance in the rhetoric they stole from the latter. As 2000-2021 show, conservatives are NOT interested in smaller fiscally responsible government. And they certainly are not interested in the personal choices for others.

    1. Hey Brandy your link in your posting-name is busted FYI! Aborted for slow or non-existent load!

      Good post, well written, I do agree…

    2. Catholic charities not having to buy birth control for their employees…

      If this is about the Little Sisters of the Poor case, you should note that it wasn’t about whether they would have to pay for contraceptive coverage, as they were already being offered a way to opt out. What they objected to was that doing so would still result in the employees getting contraceptive coverage without cost sharing, even if the Little Sisters didn’t have to pay, thus they were still implicated in the “sin”. Basically, they just didn’t want their employees getting birth control for free, regardless of whether the Little Sisters had to pay for it or not. It makes you wonder if they would have barred their employees from using their wages to buy birth control if there was any way of making that happen.

  19. It’s not that complicated: You can be in favor of a clean fight, no low blows, all you like.

    But after you’ve spent a while being kicked in the nads, and your opponent pulls a knife and starts talking about coming back with a gun, you either drop to his level, or accept that you’re going to bleed out in the gutter.

    For all practical purposes the Constitution the right were defending is dead, and isn’t coming back. The right either adapts to that reality, or loses.

    Now, if the right does adapt to that, and the left starts losing as a result, maybe the left will decide that restoring constitutional government is better than the right winning without it. Maybe.

    But as long as the left can win by blowing off the Constitution, and count on the right losing by refusing to, the Constitution is doomed.

    And I wish that weren’t the case. I wish the right had wised up about the threat the left posed BEFORE things got this bad. Not let the left take over so many institutions.

    But they didn’t, and we’re now in the Constitution’s end game, and the left is looking forward to existing Erdogan’s train the first chance they get.

    1. Oh, please. It is precisely this “the other side’s actions justify mine” attitude that will kill the Constitution.

      America used to be about trying to make a better world and be a better person.

    2. The Republicans have not been meeting the tactics of Democrats on constitutional issues and court nomination fights with any sort of proportional response. Besides, the argument I often hear is that Democrats would do what the Republicans just did, if given the chance, so that justifies it! Do unto others before they do unto you is the mantra of the right now. Or to use your analogies, Republicans think that Democrats would pull a knife, so they had better come out guns blazing.

      1. Besides, the argument I often hear is that Democrats would do what the Republicans just did, if given the chance, so that justifies it!

        Perhaps this is a function of who you’re listening to ?

        If you want a specific example of why you need to get out more, consider the judicial confirmation wars and the filibuster.

        It was the Ds that started filibustering judges when they lost control of the Senate in 2003. Before then both parties had happily used their Senate control to delay or prevent unsuitable nominees from coming up for a vote (ie a la Garland in 2016.)

        In 2005, the Rs started talking about getting rid of the filibuster but they didn’t actual do it. And then when the Ds didn’t like the Rs filibustering after Obama got in, they did abolish the filibuster.

  20. Now? Oh cmon- they were falling all over themselves to praise the expansion in DC v Heller.

    They’ve always been privy to wanting their own way regardless of the means and will be hypocritical whenever it suits them.

    1. Oh, shitlunches.

      Heller wasn’t an expansion. It was a partial restoration.

    2. All gun control is unconstitutional.

      No background checks, no limits on guns or ammo, no machine gun restrictions….

      Specifically prohibited by the 2nd Amendment.

      Civil War 2.0 means Lefties dont have constitutional protections anymore.

  21. “Florida’s Republican Gov. Ron DeSantis recently signed a law that…lets the state attorney general and even private citizens sue these companies if they believe they’ve been treated unfairly….”

    Does not every other private business in the US operate under these conditions already? Why should social-media companies be any different?

    1. And I forgot to add that Greenhut is a cuck.

      1. Plus, many lawsuits will be about their shady ToS.

        I successfully got a chargeback from a company because I sued them when they violated MY Terms of Service after accepting my money. When I sent my ToS to their legal department, I received a settlement offer and check within 2 weeks.

        Companies think they can change their ToS every day and that is a binding contract.

        1. It doesn’t work that way with Facebook and other companies that don’t charge you anything to use their website. Their lawyers have made sure to put clauses in the ToS that basically say, “Fuck you if you don’ t like changes to our ToS.”

  22. Thing is, many of the states’ constitutions have their freedom of expression guarantees written very differently from that of the USA’s. While the US Constitution puts it as a restraint on Congress’s lawmaking, many of the states ostensibly invest their people with freedom of expression as a right, with no limitation as to whether a positive or negative one, or distinction as to its exercise vs. government or private parties.

  23. BOTH SIDES!!!!

    “Stop censoring” versus “censor harder!”

    Yeah, totally the same. /s

  24. The Leftists were right about one thing: the Constitution is just a piece of paper. It died the moment we stopped respecting what it stood for.

    The problem with the Constitution and the constitutional process is that it presumes a unified, non-subverted nation exists. The only time in recent history we came close to that ideal was the immediate aftermath of 9/11.

    Right now, the majority of politicians are bad faith actors exploiting processes and systems as a means to an end. When one party believes that the ends justify the means, others must follow suit. Fire must be fought with fire. Too many people believe the naive ideology of Justin Trudeau that killing your enemies means they win. There is a difference between starting and finishing a fight, as much as we’ve tried to eliminate that difference from civil society.

    The idea that we should allow subversives to screw us royally and that we cannot do anything because they use private organizations is asinine. There is no difference between the government and a corporation controlling everything as the government is a corporation. Their control is protected by law and the full force of the government.

    Good on DeSantis for telling the social media cults to eat a dick.

  25. “It fines tech companies if they suspend political candidates prior to elections,”
    Is the author saying that punishing tech companies for silencing their political opponents counts as government silencing political opponents?
    Seems to me the government is saying “you are not allowed to silence your political opponents”.

  26. the government is mandating that private publishers

    If they were actually private publishers, they’d be liable just like any other private publisher for what they choose to publish.

  27. If I do not like a website or newspaper or media outlet a lot, I just do not go there. Someone might not like the political opinions of Fox News, but we do not have the government ban or regulate because Fox is private property owned by the shareholders of Fox. JUST like Twitter, Facebook etc are owned by the shareholders of those companies. It DOES NOT MATTER if those companies offered people the chance to post their opinions. Those companies do that at their discretion just as much as you can allow someone to put up a yardsign on your property and then tell them to remove it.

  28. I am quite sure I am an outlier, but I believe this is where everyone gets the Constitution wrong. The Constitution states that my rights are UNALIENABLE, or stated another way, cannot be taken away BY ANYONE–public or private. Yes, the Constitutions states all of the rights the government may not usurp, but that does not give carte blanche power to every non-government entity to take away my rights. Corporations were unheard of at the time the Constitution was written (they existed–East India Trading Company–but were so few and rare as to be non-existent). The vast, vast majority of Americans did not have a employer they had to report .They were self-employed–farmers and traders and self-employed blacksmiths. My employer may not take away my rights, just the same as my government may not take away my rights.

    1. And on the ‘real’ debate — Having rights doesn’t *entitle* one to other people’s or corporations resources.

      An extremely selfish and completely criminalistic ideology of the left.

  29. I’m afraid the Constitution was turned on its head long ago. The 14th amendment was not intended to empower the federal judiciary to command and control the States through its interpretation which, if we’re honest, is highly subjective, and perhaps unavoidably so.

    “Congress shall make no law” is quoted twice in the opening paragraph of this insipid article. Yet the subheadline just previous stated “No, states can’t use the 10th Amendment to overturn the First Amendment.” One has nothing to do with the other. Congress is not the States.

    1. I think you’re right that the incorporation of the bill of rights against the states is not explicitly laid out by the 14th amendment but was developed in later court decisions. However, Greenhut is correct that rejecting incorporation does mean California would be able to outlaw private gun ownership as much as it would allow Florida to regulate private speech. Even if you accept that outcome, incorporation is so well established that no one in my experience completely rejects federal oversight of state governments even if they otherwise claim to support states rights.

  30. The issue has not a thing to do with the first amendment, rather it hangs on the difference between a publisher and an ISP. How is it that Greenhut does not understand this?

    Big tech wants to read sec 230 as allowing them to filter content at their whim. Fine and dandy, but that makes them publishers by any other name. Since the communications decency act distinguishes between providers and publishers, I do not see how one can read the text allowing providers to remove objectionable language so broadly as to make a provider indistinguishable from a publisher. Section 230 did not seek to protect publishers, it was intended to allow users to block offensive material while granting providers of interactive computer services protection to make good samaritan screening of offensive material without risking being treated as a publisher. Moreover such an excessively broad reading would undercut two of the findings in 230.
    (A) Findings
    (3)The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.
    (5)Increasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services.
    At some point the courts will have to define how much filtering by an ISP is in keeping with sec 230. Florida is pushing for the courts to draw a bright line while Greenhut and others are kicking dirt to obliterate that line.

    Lastly if SCOTUS reads the first amendment as loosely as does Greenhut and finds no distinction between publishers and providers, either publishers will gain protection from libel, or providers will lose the protection sec 230 sought to provide. We should not want either to occur.

    1. I’m sure Elizabeth Warren is thrilled that MAGA useful idiots are supporting her agenda of overturning Section 230.

      1. Allowing abuse of a good policy over an extended period of time usually leads to the downfall of that policy, but it doesn’t have to happen.

        SCOTUS could smackdown a few of the worst offenders and allow them to be sued as publishers rather than providers. This would require the court to declare how much supposedly good samaritan filtering an ISP may do without being treated as a publisher. There is now a long track record to review and it shows that some providers are pushing a particular political POV rather than acting as providers.

  31. One wonders what REASON will do when the IT monopolies decides to deplatform REASON itself: cut off its access to the Internet, terminate its social media, cancel its bank accounts.

    Will the editors of REASON still promote (maybe by signal flags?) the rights of corporate monopolies?

    Real question. Perhaps the editors will issue a statement on this matter…

    1. Ironically it wasn’t “IT monopolies” that solely ‘decided’. It was Democratic Politicians calling and ?requesting? the termination and de-platforming be done.

      Government is the only entity that makes threats at the point of Gov-Guns. There’s no worse threat than the *power* a “Guns” monopoly has to *force*. What made the USA great was using that *force* to ensure Individual Liberty and Justice. What’s killing the USA is using that *force* for Nazism (def; National Socialism — Redistribution, ‘Cult’ Regulation, Mob-Rules, etc..).

      Which falls right inline with the “cancel bank accounts” threat created by Gov-Guns taking over control of all banks by the Federal Reserve Act which predictably launched the Great Depression.

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  34. Big tech’s government legal protections moves it out of the “private company” area and into a monopoly like area. That is a huge difference that the woke liberal left-wing socialist Reason fails to recognize.
    Just like utilities can’t do whatever they like because they have been eliminated from competition by the government, Big tech should also not be allowed to do whatever they want because of government protections that not only absolve them from liability but severely limits competition.

  35. Most republicans have not been conservatives for a long time.

  36. Do you people not feel disgusted with yourselves, having discovered the virtues in government regulation–no, not to protect basic worker rights, not to protect humans from discrimination based on race, not to protect people from being poisoned by cheapskates with a burger joint–but to protect Donald fucking Trump’s fee-fees on the internet.

    I mean, it’s just so fucking sad.

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