The Circularity of Fulton

The law is reviewed with strict scrutiny because of the exemptions. And the state's interest is not compelling because of the exemptions.

Chief Justice Roberts's majority opinion in Fulton is very short. And the constitutional analysis is circular. In short, the law is reviewed with strict scrutiny because of the exemptions. And the state's interest is not compelling because of the exemptions. Take out the exemptions, and it is not clear how this case would come out. Let's walk through the analysis.

First, the Court finds that Philadelphia's regime is not generally applicable because the government has the power to grant exemptions:

Like the good cause provision in Sherbert, section 3.21 incorporates a system of individual exemptions, made available in this case at the "sole discretion" of the Commissioner. . . .

No matter the level of deference we extend to the City, the inclusion of a formal system of entirely discretionary exceptions in section 3.21 renders the contractual nondiscrimination requirement not generally applicable.

Second, because the regime is not generally applicable, the law would be reviewed with strict scrutiny.

CSS has demonstrated that the City's actions are subject to "the most rigorous of scrutiny" under those precedents. Lukumi, 508 U. S., at 546. Because the City's actions are therefore examined under the strictest scrutiny regardless of Smith, we have no occasion to reconsider that decision here.

A government policy can survive strict scrutiny only if it advances "interests of the highest order" and is narrowly tailored to achieve those interests. Lukumi, 508 U. S., at 546 (internal quotation marks omitted). Put another way,so long as the government can achieve its interests in a manner that does not burden religion, it must do so.

Third, the Court does not consider whether the policy is "narrowly tailored." Instead, it analyzes whether the government has proffered compelling state interests.

Fourth, the Court favorably cites O Centro, a RFRA case, which held that compelling interests must be defined with some precision:

The City states these objectives at a high level of generality, but the First Amendment demands a more precise analysis. See Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U. S. 418, 430–432 (2006) (discussing the compelling interest test applied in Sherbert and Wisconsin v. Yoder, 406 U. S. 205 (1972)). Rather than rely on"broadly formulated interests," courts must "scrutinize[] the asserted harm of granting specific exemptions to particular religious claimants." O Centro, 546 U. S., at 431. The question, then, is not whether the City has a compelling interest in enforcing its non-discrimination policies generally, but whether it has such an interest in denying an exception to CSS. 

(Roberts wrote O Centro in his first term on the bench.) This passage may be the most important jurisprudential development of the entire case. In theory at least, courts could find that enforcing non-discrimination policies, by itself, is not a compelling interests. Alas, the Roberts Court doesn't quite go that far. The following two paragraphs on pages 14 and 15 are very much limited to the specifics of the case.

Fifth, the power to grant exemptions renders the City's interest not compelling. Yes, the same exemptions that triggered strict scrutiny in the first place:

That leaves the interest of the City in the equal treatment of prospective foster parents and foster children. We do not doubt that this interest is a weighty one, for "[o]ur society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth." Masterpiece Cakeshop, 584 U. S., at ___ (slip op., at 9). On the facts of this case, however, this interest cannot justify denying CSS an exception for its religious exercise. The creation of a system of exceptions under the contract undermines the City's contention that its nondiscrimination policies can brook no departures. See Lukumi, 508 U. S., at 546–547. The City offers no compelling reason why it has a particular interest in denying an exception to CSS while making them available to others. 

Fulton strikes me as circular. If the exemptions are removed, the state would seem to have a compelling interest, and the law would be generally applicable. CSS is back to rational basis land under Smith. The entire constitutional analysis turns on these specific exemptions.

Do many non-discrimination ordinances have such unbridled discretion to grant exemptions? Would this regime have any impact in the ongoing Jack Phillips litigation in Colorado? I'm not sure how far this decision can extend to other contexts.

Comments

[Martinned]

Conservatives famously understand unintended consequences better than liberals, so we can only interpret this one way: the Chief wants jurisdictions all over the country to strip the (religious) exemptions out of their non-discrimination laws.

[Michael P]

That’s not the kind of exemption that violates the Constitution in this case. The problematic exemptions here are at the sole discretion of a bureaucrat. There are good reasons to strip those out when they are granted in discriminatory fashion.

[Brett Bellmore]

That’s the problem with this ruling, just as with Masterpiece; The Court can’t seem to rule in favor of religious liberties, without providing instructions on how to get away with the infringement next time, even against the same person/org.

[Queen Amalthea]

Anytime a Court lays down a rule for its decision isn’t it telling the next party how to ‘get around’ (not run afoul of the rule) next time?

[Brett Bellmore]

It’s the difference between having ruled that, no, you don’t have to bake the damn cake, and having ruled that you don’t have to bake the damn cake if the prosecution was undeniably a product of religious animus. The former isn’t providing a way to get around the liberty, (Not the rule, the right itself.) the latter is.

[Queen Amalthea]

So you’re saying the Court should try to decide things on the most broad level possible? That doesn’t seem very…conservative.

[Dilan Esper]

Animus matters, though, and I would actually think y’all on the right would think it is important.

Isn’t the right wing mantra “we don’t hate gay people, we don’t have any animus towards them, we just have a sincere, principled, religious belief against certain conduct”? If that’s the mantra, then that’s the line that anti-discrimination law would draw if you think there’s a First Amendment freedom to discriminate for religious reasons.

If you mock a distinction between animus and religious belief, well, doesn’t that give away the game? Doesn’t that prove what most liberals already believe, which is that you guys don’t really think that God condemns homosexuality, but rather just want gays to suffer in the hopes that they will be scared straight?

[Bored Lawyer]

The animus here is anti-religious animus. So your thesis makes no sense.
Not to mention that the person/action distinction is one that courts in this context have rejected every time. Just try saying, I’ll hire homosexuals, but not homosexuals who practice homosexuality. That would be held to be discriminatory in every state that outlaws orientation discrimination, and soon at the federal level ala Bostock.

[Dilan Esper]

Right, because the orientation and the conduct are related. It’s like refusing to employ anyone who is menstruating is sex discrimination.

But the animus test that Brett was condemning was the Romer v. Evans “animus” framework for striking down anti-gay discrimination. In other words, it asks whether laws are motivated by distaste for gays. And as I said, I would think religious right types, who are constantly telling us that they have nothing against gay people but just have a religious objection, would endorse such a test. But they don’t, because they all know that they actually DO have animus towards gays.

[Brett Bellmore]

“Animus matters, though, and I would actually think y’all on the right would think it is important.”

No, I tend to be a more “What did they do?” guy, I don’t so much care why people did something. That’s too much like mind reading.

If it’s something they were entitled to do, who cares why they did it? If it’s something they weren’t entitled to do, again, who cares why they did it?

Haven’t you noticed the right’s hostility to ‘hate crimes”? Forget hate, that they violated somebody’s rights ought to be bad enough, your nose isn’t extra broken if somebody punches you out of ‘animus’.

[Dilan Esper]

If you feel that way, then you should have no problem with simply prohibiting discrimination against gay people, no matter what the motivation. Focus on conduct. It’s just as bad for gay people if the reason for the discrimination is someone’s faith.

[Brett Bellmore]

No, I have a huge problem with doing that, because, while I’m not a “Libertarian” anymore, I’m still a “libertarian”, and I want to live in a FREE society. Not a society where everybody is forced to act according to somebody’s idea of virtue, or else. A free society.

Freedom is what you find between what people ought to do, and what they can be forced to do. Between what they shouldn’t do, and can be forced to refrain from. I don’t want to live in the “All that’s not forbidden is mandatory!” dystopia, and that’s where we’re headed.

I don’t think gays or straights, blacks or whites, atheists or Christians, have any right to not be discriminated against, in the private sector. You don’t have any right in other people’s choices, until those choices violate your negative rights.

[Sarcastr0]

Brett, as I have said many times, history shows us your definition of free yields a society that is a lot less free.

[Brett Bellmore]

Actually, history shows we never tried my definition. Went straight from mandating discrimination to prohibiting it, and now we’re slouching back into mandating it again.

[Sarcastr0]

You continue to argue Jim Crow included only de jure discrimination?!

Come on, man, that’s ahistorical claptrap.

[Bored Lawyer]

Or perhaps they know that animus can be disguised, especially with a sympathetic judiciary. Making one’s rights depend on a subjective determination of whether one’s mind has “animus” is fraught with peril.

[Bored Lawyer]

“It’s like refusing to employ anyone who is menstruating is sex discrimination”

That’s laughably absurd, but most judges today buy it.

[Brett Bellmore]

I’m not sure you actually understand the meaning of “circular” reasoning. Because that’s not what you’re describing here.

[Sebastian Cremmington]

You spin me right ’round, baby
Right ’round like a record, baby
Right ’round, ’round, ’round
You spin me right ’round, baby

[Michael P]

If there are exemptions, there must not be circular reasoning. There are no exemptions from circular reasoning, so if there is circular reasoning, there must not be exemptions. Ladies and gentlemen of this supposed jury, I ask you, does that make any sense? It does not! If the reasoning fits inside a circle (on Kashyyyk or on Endor), you must acquit!

[Brett Bellmore]

To be clear, it’s perfectly non-circular to say that, if a law permits exemptions to be granted on a discretionary basis, it is, definitionally, not a law of general application.

I eagerly await the day this reasoning collides with the existence of prosecutorial discretion, by the way. That would seem to leave very few laws of general application indeed.

“Fifth, the power to grant exemptions renders the City’s interest not compelling.”

It’s not the interest in general which was rendered not compelling, but rather the City’s interest in not extending such an exemption to CSS. That it is not a law of general application results in the City having to justify as a particular matter its refusal to let CSS have an exemption.

[ReaderY]

I think, on reflectioj, you may be right here, and Professor Blackman may indeed be raising a sleeper issue, because traditional prosecutorial discretion has an “any reason or no reason” (except for unconstitutional reasons, like race.)

But I think this decision doesn’t yet create that problem. The Commissioner is an administrator, not a prosecutor, and doesn’t have the kind of discretion that a prosecutor has unless given it by law. And if the law explicitly vests discretion, then it reflects a special determination that exceptions aren’t a problem.

One could argue that prosecutorial discretion doesn’t come from the legislature, it comes from separation of powers, and hence the existence of prosecutorial discretion doesn’t reflect the existence of a special legislation determination of the sort at issue in thiss case. The discretion in this case is part of the law and created by the legislature; general prosecutorial discretion is not.

That may be enough of a difference to matter.

In Police v. Newark, which Alito decided as a 3rd Circuit judge and drives the underlying philosophy, the law itself also created the relevant exception.

[Queen Amalthea]

There might be a difference between a law with spelled out exemptions and ‘exemptions’ created by administrative discretion in implementing/enforcing the law. The latter is probably inevitable.

[Brett Bellmore]

It’s true that prosecutorial discretion is basically unavoidable in a “3 felonies a day” regime, where there are so many and so much law that normal life would be impossible if all laws were universally and strictly enforced.

It’s also true that the existence of prosecutorial discretion takes off the pressure to do anything about that “3 felonies a day” regime. So it’s hardly an unalloyed good. Ideally, the laws should be such that prosecutorial discretion would be a rare thing, comparable to executive pardons. Not necessary for everything to not grind to a halt.

[Queen Amalthea]

The number of laws may exacerbate things but I don’t think it’s a necessary cause, I think any and all laws invite discretion in enforcement. Take just one law: speeding. Trying to ticket everyone who even goes 1 mph over the posted limit is just impossible. I agree that discretion leads to some very troubling questions though….

[Brett Bellmore]

Speeding is a horrible example of unavoidable prosecutorial discretion, truly horrible. Speed limits are set where they are, not because those limits make any sense, but so that a large fraction of the population will speed, and thus be available to ticket in order to generate revenue.

Ask any traffic engineer about this: Speed limits almost never make sense from a safety perspective, they’re virtually always too low. And that’s why they’re too low: To make sure people will speed, and can be ticketed.

[Krayt]

The power to grant exemptions is right in alignment with the historical nature of government: people who get in the way, to get paid to get back out of the way.

This, a new development (in brazenly being written into law, ancient in practice), along with the regulatory state, are trying to put the dictate back into dictator. Men speaking words, without a vote, that you have to go to jail for for violating.

The power to pass law by decree. That legislators “monitor” this has about as much effect in practice as a dictator’s “legislature’s” rubber stamp.

[ReaderY]

What’s the problem here? The law says it’s OK to give an excption to anyone at all for any reason or no reason, how can it possibly not be consistent with the law, on the law’s own terms, to give an exception to religious prople?

If prosecutors excluded all black people from juries, would you be similarly arguing that prosecutorial discretion has to be absolute or our our whole constitutional framework has to tumble? Your logic strongly suggests you would be.

Do you want a world where prosecutorial discretion means black people get systematically excluded from juries? There are certain crimes that only black people are ever get prosecuted for?

If you don’t think the constitution requires such a world, what’s your problem here? Prosecutorial discretion hasn’t been absolute since the Civil Rights era first found previously routine prosecutorial practices like these to be unconstitutional.

Religion here is as textual a cafegory as race.

[Brett Bellmore]

Krayt is pointing out that enacting laws providing the executive with unlimited discretion as to whether to enforce them, forbidding conduct then handing out exceptions, is in effect legally enacting dictatorship.

In the limit, you could forbid everything, with the executive allowing only what they felt like permitting.

As he says, politicians are in the business of getting in people’s ways, and then accepting bribes to get back out of the way. This sort of legal discretion formalizes that sort of corruption.

[ReaderY]

I think, on reflection, you may have a point. See my comment above.

As noted there, in this case the legislature itself created the discretion. Administrators like the Commissioner don’t have absolute discretion unless the legislature gives it to them. So here the law itself says that discretion is in order and exceptions are never a problem.

Prosecutorial discretion comes from separation of powers, not the legislature. It doesn’t represent a legislative determination.

So I don’t think it follows from this case that an exception has to be provided for every criminal law.

Moreover, there is a backstop. Yoder itself said, and arguably made it a condition, that exceptions apply to religions whose adherents are “generally law abiding.”

This requires a certain amount of line drawing.

The person who refuses to press a pedestrian signal button at the crosswalk on the Sabbath is still generally law-abiding despite the jay-walking. But the person who wants human sacrifice isn’t. There is a lot of gray in between.

At any rate, even id prosecutorial discretion invalidates everything, which for the reasons explained above I don’t think it will, I think Yoder provides a backstop. If the crime involved is sufficiently serious, it takes one out of the “generally law abiding” category and one doesn’t have a First Amendment claim in the first place.

[ReaderY]

I don’t see the logic problem.

Sole discretion means you can potentially make an exception for anything.

The equivalent of saying you think everything is potentially exceptable is saying you think nothing absolutely has to be included. That’s saying you think nothing is compelling right there.

In order for a compelling interest to exist, the state first has to assert it. If the law itself says the state’s interest isn’t compelling, as it does here, then that’s the law of the case.

[Queen Amalthea]

I imagine what’s going on here is that the more thoughtful conservatives realize that if Smith is abandoned we’ll get the floodgates opened on claims of religious exemptions. It used to be a conservative thing to try to combat that kind of thing.

[Brett Bellmore]

Historically, you had the government generally allowing Christianity breathing room, (Things like the Blaine amendments aside.) and minority religions were suffering. So the left championed religious liberty to protect the minority religions. So far, so good.

The left was victorious on this point, yay. Genuinely yay, I agree that religious liberty never should have been limited to ‘traditional’ religions.

The left’s point prevailed, and was adopted as a matter of widespread political agreement.

Then the Court flips on religious liberty, it isn’t so fond of it anymore, because it’s starting to create workload. So we get the RFRA, then the Court strikes down the RFRA, and now we have a RFRA mosaic, federal and some states, but not uniform.

Then the left got enough power to be effectively hostile to ‘traditional’ religion. Suddenly, religious liberty as a general principle doesn’t look so good to the left, and looks really good to the right.

Same exact thing is going on for freedom of speech, for the same reason: The left is only in favor of liberties the right can enjoy so long as it is out of power, and those liberties are only restraining the right. Once the left gets power, liberty looks worse, because it is the left itself restrained.

So the left, which helped champion the RFRA, is now hostile to it, and trying to get it struck down everywhere.

[Queen Amalthea]

I don’t think the left is predominately hostile to religion, rather they are very sympathetic to those protected by recent anti-discrimination laws and so want to limit exemptions to those laws. If you want to see what hostility to a religion looks like, look at the Right and Islam.

[Brett Bellmore]

Yeah, talk to the Rev. about that.

The left is, in my experience, happy about the rights of minorities, where those minorities can be used to break down existing power structures and social arrangements. Useful minorities.

Minorities that are challenging the left’s power, or the social arrangements the left is trying to impose? They’re not so useful.

[Queen Amalthea]

1. I don’t think ‘the Rev’ is illustrative of much of anything other than the Rev.

2. I think the left is pro-underdog, yes. And conservative Christians are, at best, a very recent and not nationally an underdog, they are the former uber-establishment now not in power in some places nationally. And the left is less sympathetic to them, for two reasons that don’t assume bad faith: 1. as the up to recent power they are who many on the left has been fighting, so it’s hard to be sympathetic and 2. they are only recently and still barely a ‘minority,’ therefore exemptions for them would put a big hole in laws the left values.

[Queen Amalthea]

“Then the left got enough power to be effectively hostile to ‘traditional’ religion.”

I do think there’s some truth in here. For most of our history there was kind of a ‘hegemony’ of somewhat conservative Christianity in many areas of our nation. That hegemony has been quite challenged/broken in recent history. So now you’ve got a large number of people who in some areas will find themselves at odds with the law. The law didn’t much challenge their religious practices, know in ways it might.

This naturally means though that suddenly there’s a *lot* of people who think about religious exemptions/accomodations. A small number of people wanting those can be fairly easily tolerated relative to a large number. So it becomes a much more serious threat to certain laws. Liberals tend to value the laws in question more.

I think that explains things more than ‘hostility’ to religion be either side.

[Brett Bellmore]

The key distinction, from a libertarian standpoint, is, what sort of exemptions/accommodations are being requested?

Are you asking somebody to get out of your way, to leave you alone? Or are you demanding something of somebody? And, if the latter, did they already contractually agree to provide it?

It’s the distinction between negative and positive rights: All non-contractual rights are negative, rights to have people leave you alone. That’s because negative rights don’t conflict with each other, you can leave an infinite number of people alone simultaniously.

Positive rights conflict. Every time positive rights expand, total liberty contracts, the number of things you can be forced to do increases.

From this perspective, these cases are easy: The Masterpiece Cake guy just wants the gay couple to leave him alone, they ‘just’ want to force him to bake them a cake, or else. How is this hard? Tell the gay couple to find a different bakery.

CSS just wants to find orphans foster parents CSS would think good for them, but can’t command that those orphans end up with them; CSS is, in the end, just suggesting who would be good foster parents, isn’t compelling anybody to do anything. The state wants CSS to either be open to suggesting foster parents CSS thinks would not be good, or stop making suggestions. Why is it skin off anybody’s nose if CSS doesn’t think gays or unmarried heterosexual couples would make bad foster parents? Said couples have plenty of options besides CSS.

In the end, if you pursue non-discrimination to the point of insisting people act affirmatively, not just refrain from messing with other people, you’re not increasing liberty. You’re contracting it.

[Queen Amalthea]

The major Civil Rights Acts had provisions that people act affirmatively (give blacks rooms at their inns, serve them meals, etc). Bad things for liberty?

[Queen Amalthea]

Also, the current push by conservatives to make social media carry messages they don’t want to. Affirmative act.

[Brett Bellmore]

I don’t personally advocate forcing social media to carry things they don’t want.

But these platforms have been extended the privilege, not right, of having content they carry not treated as their own for purposes of tort law. And that privilege was granted on the basis that they would NOT be exercising editorial powers, and so did not have to take editorial responsibilities.

That condition had a specific and narrow carve-out for moderating ‘offensive’ content, where it was made clear what offensive meant. And that carve-out got blown wide open by failing to enforce the “in good faith” language in Section 230.

What I advocate is that they be held to the original deal, or lose the privilege.

[David Nieporent]

And that privilege was granted on the basis that they would NOT be exercising editorial powers,

You have been told hundreds if not thousands of times that this is 100% false. Indeed, it is 180°off. The point of giving them immunity was to encourage them to exercise those powers.

[Brett Bellmore]

Wrong. Take another look at the structure of Section 230. Section 230 provides TWO sorts of immunity.

(c)(1) provides that. “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” That’s the biggy, that allows a mega-corp like FB or Twitter to permit literal terrorists to post content that goes live without being looked at by human beings. It essentially makes them common carriers. It was all that was necessary for the platform model to be viable. You could have stopped there, and FaceBook and Twitter could have still come into existence.

(c)(2) permits, and ONLY permits, (does not require) “voluntary” actions “taken in good faith” to restrict defined offensive content, or provision of blocking software to the user. It does not condition the immunity from (c)(1) on actually doing any such thing. Rather, it allows such actions to be immune to the tort system so long as they are done in good faith for specified reasons.

The only mandate is (d), the requirement to notify customers of the availability of parental control software. Aside from that, the service has no obligations at all, except to remove content pursuant to other legal mandates.

(c)(1) is great as it is. Perhaps the only amendment it needs is to underscore that content the platform actively solicits and pushes out to the user IS content the service originates. (‘Fact’ checks, for instance.)

My point here is that where things went wrong was the failure to enforce the (c)(2) requirement that such blocking be “taken in good faith”, and to remove defined ‘offensive content’. Failure to enforce those requirements transformed a limited carve-out from common carrier status into full blown editorial power.

Only without the normal legal obligations of such power.

The platform models would still be viable if (c)(2)(A) were repealed. People could still use third party blocking applications to curate the content they saw, but the platforms could no longer get away with censorship.

Either restore the limits of (c)(2)(A), or repeal it. Neither option is a 1st amendment violation.

[David Nieporent]

I don’t know why you think you’ve rebutted what I said by saying things that disprove your claims. I didn’t say one word about mandates. I said “encourage.”

I didn’t say anything about the immunity from (c)(1) being conditioned on anything. I’ve said the opposite, repeatedly explaining to people like you that the rest of your analysis is wrong.

My point here is that where things went wrong was the failure to enforce the (c)(2) requirement that such blocking be “taken in good faith”, and to remove defined ‘offensive content’. Failure to enforce those requirements transformed a limited carve-out from common carrier status into full blown editorial power.

Once more: there is no such (c)(2) “requirement.” Even in the absence of (c)(2), there is no cause of action for removing a user’s content. The first amendment, not (c)(2), is what allows a website to remove user content. There is no “carve out” from “common carrier status.” Websites were not, and never have been, common carriers. (I use the term “website” for simplicity, but of course at the time that § 230 was written, it was focused more on services like Compuserve and Prodigy.)

Only without the normal legal obligations of such power.

There are no “obligations” of such power.

The platform models would still be viable if (c)(2)(A) were repealed. People could still use third party blocking applications to curate the content they saw, but the platforms could no longer get away with censorship.

Again, 100% wrong. Repealing (c)(2)(A) would impose no obligations on websites. Platforms would be 100% free to “get away with censorship,” and would suffer no legal consequences for so doing.

[Brett Bellmore]

“Once more: there is no such (c)(2) “requirement.””

You can say that however many times you want, but the words are still there in Section 230.

It’s not that they can’t remove content without (c)(2). Of course they could. It’s that without (c)(2), <b<such removals wouldn't be immune to civil liability. Every time they demonetized somebody, or took down content for vague or fraudulent reasons, they could be hauled into court.

Sure, they’d often prevail in court. Maybe even usually. But the process is the punishment, and they’d have lost their shield against the process, their automatic “we win, go away!” card.

Properly, they should only have that immunity, on the plain terms of Section 230, for good faith removals. The problem is that the “in good faith” language has been ignored, and they’re being allowed to take down content for any reason they want, or none at all, and still escape civil liability.

[Josh R]

David:

Even in the absence of (c)(2), there is no cause of action for removing a user’s content. The first amendment, not (c)(2), is what allows a website to remove user content. There is no “carve out” from “common carrier status.”

Didn’t Florida just enact a law which gives candidates for office, large-scale online publishers, and cable/broadcast channel owners a cause for action if their content is deleted by a social media platform? Eugene has argued social media platforms should be legally treated as common carriers which would then imply the First Amendment doesn’t preclude Florida’s statute.

Brett:

Properly, they should only have that immunity, on the plain terms of Section 230, for good faith removals. The problem is that the “in good faith” language has been ignored.

230 says the provider needs a good faith reason to believe deleted material is “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.” If Twitter honestly thinks Trump’s tweets are objectionable, I’m not following how his removal wasn’t in good faith. So, I am not seeing how “good faith” has been ignored.

[David Nieporent]

You can say that however many times you want, but the words are still there in Section 230.

Those two words don’t mean what you want them to mean, but you miss my point, which is that they impose no “requirement.”

It’s not that they can’t remove content without (c)(2). Of course they could. It’s that without (c)(2), such removals wouldn’t be immune to civil liability.

Civil liability for what?

Every time they demonetized somebody, or took down content for vague or fraudulent reasons, they could be hauled into court.

Hauled into court for what? Your statement is literally true in that anyone can file a frivolous lawsuit, like that Kraken guy who tried to sue MLB for moving the All-Star Game. But like that Kraken guy, it wouldn’t prevail. What claim do you think someone could bring? Such claims would only sound in contract, but these sites’ contracts with their users expressly allow the sites to do these things.

[Josh R]

Civil liability for what?

In Florida , deleting posts by either a candidate or a journalistic enterprise.

[David Nieporent]

Didn’t Florida just enact a law which gives candidates for office, large-scale online publishers, and cable/broadcast channel owners a cause for action if their content is deleted by a social media platform?

Unless Disney owns it!

Eugene has argued social media platforms should be legally treated as common carriers which would then imply the First Amendment doesn’t preclude Florida’s statute.

While I confess that I am aware of but have not yet had a chance to dive into Prof. Volokh’s arguments, I do not think that the phrase “common carrier” is a magic incantation that allows the government to override the 1A.

But I would point out that even assuming that, e.g., Twitter could be classified as a common carrier, Brett is making a categorical argument about the CDA, rather than making an argument about a handful of large social media companies. Nobody would contend that reason.com/volokh could be deemed a common carrier, but under Brett’s preferred application of the relevant legal principles, people could sue if Prof. Volokh was deleting comments here.

[Brett Bellmore]

Yup. Public accommodations laws? A terrible idea.

I understand how they came about, but hard cases make bad law, and bad law should be contracted, not expanded.

Nobody is going to die of exposure, or starve, because they had to go to the bakery next door to get their wedding cake or flowers. Particularly when they sought out that bakery, or photographer, specifically in order to be rejected.

[Queen Amalthea]

“courts could find that enforcing non-discrimination policies, by itself, is not a compelling interests. Alas, the Roberts Court doesn’t quite go that far. ”

It’s always seemed to me that a problem with ‘compelling interests’ tests is who are nine unelected Justices to determine what is or isn’t a ‘compelling interest?’ That seems like the kind of thing that should be democratically decided. Someone might think ending commercial discrimination is a compelling interest (indeed, many think that one of our proudest moments was when the Civil Rights movement produced legislation to do that). Someone might think that curbing social media censorship is a compelling interest. Someone might think animal welfare is a compelling interest. Etc.

Having nine justices (well, I guess just 5) decide these matters seems a concerning way to do this. I can certainly see how some conservative minded justices, especially those raised on the conservative judicial philosophy en vogue up until recently opposing ‘judicial supremacy’ being reluctant to open that can of worms in this area.

[ReaderY]

Traditionally, a compelling interest was an interest implicating the survival of the whole society – war, pandemic, conflagration, flood, things like that. Measures aimed ar concrete large-scale dangers and disasters.

Then you get the most serious of traditional imdividual offenses, things like corruption in government and judicial administration, murder, that kind of stuff.

In Atlanta Hotel, the Supreme Court characterized civil rights laws as a species of morals legislation, just like laws against gambling, prostitution, etc.

So the traditional characterization establishes that interning Japanese citizens for fear of their becoming a fifth column is a compelling interest, but civil rights laws are not.

Justice O’Conner’s concurrence in Smith argued that the state has a compelling interest in controlling potentially dangerous drugs. In my view, drug laws are more akin to moral laws than they are to laws against murder or bribery.

If you let judges decide what’s compelling based on whatever they feel is important, rather than based on objective, narrowly dwfined special exceptions, you’ll get decisions about compelling interest that are legislative in character, reflecting nothing more than judges’ political views.

[Brett Bellmore]

I think that distinction has gone by the wayside, just like the distinction between malum prohibitum and malum in se, and today “compelling interest” really does just mean the judge agrees something is important.

[tkamenick]

This doesn’t seem unusual at all.

“Nobody is allowed to speak” – complete prohibition on exercise of First Amendment rights triggers strict scrutiny. And the same prohibition will be what dooms the law.