Judge Oldham Bails Out Texas

Episode 422 of the Cyberlaw Podcast

The big news of the week was a Fifth Circuit decision upholding Texas's law regulating social media speech suppression. The decision was poorly received by the usual supporters of social media censorship but I found it both remarkably well written and surprisingly persuasive. That does not mean it will survive the almost inevitable Supreme Court review but Judge Oldham wrote an opinion that could be a model for a Supreme Court decision upholding the Texas law.

The big hacking story of the week was a brutal takedown of Uber, probably by the dreaded Advanced Persistent Teenager. Dave Aitel explains what happened and why no other large corporation should feel smug or certain that the same cannot happen to them. Nick Weaver piles on.

Maury Shenk explains a recent European court decision upholding sanctions on Google for its restriction of Android phone implementations.

Dave points to some of the less well publicized aspects of the Twitter whistleblower's testimony before Congress. We agree on the bottom line – that Twitter is utterly incapable of protecting either U.S. national security or even the security of its users' messages. If there were any doubt about that, it would be laid to rest by Twitter's dependence on Chinese government advertising revenue.

Maury and Nick tutor me on The Merge, which moves Ethereum from "proof of work' to "proof of stake," massively reducing the climate footprint of the cryptocurrency. They are both surprisingly upbeat about it.

Maury also lays out a new European proposal for regulating the internet of things – and, I point out, for massively increasing the cost of all those things.

China is getting into the attribution game. It has issued a report blaming the National Security Agency for intruding on Chinese educational institution networks. Dave is not impressed.

The Department of Homeland security, in breaking news from 2003, has been storing the contents of phones it seizes on the border. Dave predicts that DHS will have to further pull back on its current practices. I'm less sure.

Now that China is regulating vulnerability disclosures, are Chinese companies reluctant to disclose vulnerabilities outside China? The Atlantic Council has a report on the subject, but Dave thinks the results are ambiguous at best.

In quick hits:

• The Senate has confirmed Nate Fick as the first U.S. cyber ambassador
• I reiterate wit evidence my cynical view that Apple's app rules are not so much concerned about protecting your privacy as about taking share from Google and Facebook in the advertising market
• Nick lays out the latest Treasury Department guidance on sanctions and tornado cash
• Maury explains how the Indian government persuaded 50 million Indians to geotag their homes
• And I tell listeners how the FBI and Silicon Valley could be working together to identify conservatives for potential criminal investigation.

Download the 422nd Episode (mp3)

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Comments

[Darwinnie]

Social media speech suppression? You mean content moderation? Give me a break.

[Jaypd]

Don't feed the troll

[Nige]

Can't flood the zone with bullshit if the zone has a moderation policy.

[AmosArch]

Can you guys make up your mind whether you want government interfering with private tech companies or not? First you were all for it. Then you started whining and moaning about about how much you cherished balls to the wall laissez faire freemarkets for like the first time ever when Google et al started bringing down the hammer on conservatives. Then you were cheering on Biden and Co cracking the whip on these same companies because even this amount of censorship is somehow not enough for you and calling for obstacles to be thrown in front of Musk when he was considering buying Twitter. Now you're back to banging the free market drum again?

Its almost as if you have zero principles beyond destroying your ideological opponents by any means.

[apedad]

"The disclosures Tuesday appeared to prompt some bipartisan soul-searching among lawmakers, many of whom spoke of a combined failure to bring enforcement against tech companies. Sen. Lindsey O. Graham (R-S.C.) said that he was working across party lines with Sen. Elizabeth Warren (D-Mass.) to create a regulatory system that would imitate one in Europe, where lawmakers have taken aggressive action to penalize American tech companies.

Graham and Warren are on opposite ends of the political spectrum, and Graham’s proposal signals how dramatically some Republicans’ positions on tech regulation have evolved in recent years." (WaPo, 9/13/22)

Looks like both sides are still trying to figure it out.

[AmosArch]

Yup Linda is totally representative of current conservative opinion on internet regulation like Lyndon LaRouche is an exemplar of every democrat position. Although I suppose everybody to the right of Bernie Sanders must look like a foaming rightwing zealot to contemporary Dems.

[apedad]

I suppose when you're on the losing side, it does look like everyone is against you.

[Sarcastr0]

There is something quite telling how you are comparing Democrats to conservatives.

You claim an ideology, but you oppose a party. Because that's what conservativism is nowadays - oppositional over ideological.

[Nige]

I think tech monopolies are terrible, but this just signals an effort to capture them, not breakthem up or regulate them.

[David Nieporent]

What monopolies?

[Nige]

All of them.

'The monopolistic practices of big-tech,' if you prefer.

[shawn_dude]

Calling them a monopoly doesn't make them one.

Can you describe the ways in which the wide variety of social media sites are each a monopoly?

[ah....Clem]

Isn't twitter, as the 17th largest social media site in the US, a monopoly? I mean, there's only 16 other sites to participate in that have as many users. Sounds like a monopoly to me.

And doesn't the right to free speech include the right to be heard? By everyone? Even those who don't care to hear your crap?

/sarcasm

[Nige]

Google, Amazon, Microsoft, Twitter, Facebook, all massive dominating tech platforms that squeeze out competition and squash innovation. They might not be full monopolies, but they're very monopolistic.

[ah....Clem]

And TikTok, Instagram, Apple, Messenger, WhatsApp, WeChat, QQ,
Qzone, Sina Weibo, Pinterest, Tumblr, Reddit, LinkedIn, Snapchat and a bunch of others.

I tell you, we are up to our frickin eyeballs in monopolies. Everytime I go on line I find another damned monopoly social media site has cropped up. It's infuriating how those kids keep making monopoly social media sites. Dammit, the govnmint needs to do something to stop this. FRAUD!!!!!

[Sarcastr0]

Its almost as if you have zero principles beyond destroying your ideological opponents by any means.
It's more like you throw together random articles, posts, and tweets that made you mad, declared they all represented the left, and then got mad they disagreed.

[Heresolong]

"China is getting into the attribution game"

They weren't before? Who did they blame for Covid? Remind me? US military in Kansas or something?

[ah....Clem]

Hard to believe that I'm reading a defense of Oldham's atrocious ruling on a libertarian blog. "Hurrah! Three Cheers for destroying the First Amendment!"

A core principle of the First Amendment is that the state may not restrict speech, nor may it compel speech. Lots of precedent for these two tenets.

Oldham simply ignores the second part, and a very large body of 1A precedent establishing it. TL;DR - a Trump judge issues a Trump ruling.

The dissent seems to get it right. So did the district court. With the circuit split, this should go to the Supreme Court in due time.

[ReaderY]

Libertarians have defended people’s right to own and sell body parts.

There are 7years of famine. The chair of Pharoah Corporation, which has cornered all the grain silos, requires alnybodye who wants too eat to sell their mouths for food.

Does the First Amendment protect the Pharoah’s right to muzzle the peasants? After all, since the peasants have signed a contract wheeby the Pharoah legally owns the mouths, anything coming out of those mouths legally belongs to the Pharoah, not the peasants. The contracts say so!

If the peasants complain that this makes their life unendurably hard, is the constitution unequivocally on the Pharoah’s side? Does it really destroy the First Amendment for the state to cabin the Pharoah’s right to muzzle the peasants as the Pharoah sees fit?

[NOVA Lawyer]

That's an argument about economics and monopolizing a necessary commodity, not free speech.

Certainly, Pharaoh Corporation, in normal times with numerous competitors, could refuse to sell grain to a buyer from coming on Pharaoh Corp. property to pick up grain bearing a banner indicating the holocaust did not go far enough. And, in response to that single incident, Pharaoh Corp. could implement a general policy prohibiting buyers from coming on Pharaoh Corp. property bearing signs with messages they don't approve or coming to pick up grain with trucks painted with messages they don't like. That may or may not be a profitable policy, depending on how common it is for consumers to engage in political/ideological speech when buying grain and how disfavored the messages are by the general public. However, it surely is within the law and isn't a free speech issue. The buyers are still free to carry their message on public property, their own property, and the property of merchants who don't have a moderation policy or who have a moderation policy that allows their hateful views.

You had to imagine a situation that was intolerable and, to do that, you had to imagine Pharaoh Corp. had power over people's lives beyond being just a grain merchant. The precise way Pharaoh Corp. used or misused that power is really irrelevant. The problem in the situation is that Pharaoh Corp. could extract any concession at all from people because their choice was submit or starve.

So we agree that wealth inequality and the concentration of wealth in the hands of a few is a huge problem. But your hypothetical has nothing to do with free speech.

[ReaderY]

I personally agree, but that’s only because I think what the Texas law prohibits has nothing to do with free speech either.

The relevant issue is that social media companies claim to actually own their users’ speech. They claim it’s their speech. In the hypothetical, the Pharoah Corporation has a contract saying it owns all of the peasants’ speech, similarly making everything they say its speech.

[David Nieporent]

The relevant issue is that social media companies claim to actually own their users’ speech.

No, they don't. I've called out this error by you multiple times. There is no such thing as owning speech. (There's copyright, of course, but that doesn't seem to have anything to do with this discussion.) And they don't claim any such thing. The only thing they claim to own is their own servers.

They claim it’s their speech.

You are completely misunderstanding the concept. They claim that they're being forced to distribute it, and that doing so is a form of speech. Just like Barnes & Noble selling Mein Kampf doesn't mean that Barnes & Noble owns the actual words of the book, but the very fact that they're selling it is their speech.

[ReaderY]

One of the ways that the post office defeated civil rights efforts in the South is that post offices would simply discard mail to or from people who attempted to sue. No mail, and the court would eventually dismiss the suit for non-prosecution.

Would it be your position that a private mail carrier would have a constitutional right to do this? After all, a common carrier statute supresses white supremacist post masters’ speech by requiring them to store, convey, and communicate information they very strongly disagree with in exactly the same way these social media sites are compelled to store, convey, and communicate information they very strongly disagree with.

[NOVA Lawyer]

....in exactly the same way these social media sites are compelled to store, convey, and communicate information they very strongly disagree with.

You don't know what "exactly the same" means.

Delivering a closed envelope that contains a stamp, an address, and, perhaps, a return address, is not the same as publishing to the general public a message on your website with your logo.

Does this hypothetical common carrier notify senders of mail that they may discard envelopes sent to certain recipients? (Or that they will be opening the envelopes to examine the contents and may discard them if the contents violate their moderation policy?)

Because such a policy would likely be extraordinarily detrimental to their profits, which is why you don't find such actions on any widespread basis among private mail carriers. But, obviously, social media companies face different incentives because the service they provide isn't simply delivering a closed package quickly and efficiently, their service is publishing the information in the package on their website and promoting content to increase views thereby increasing revenue and maximizing profits. They have determined that consumers prefer a moderated platform to an unmoderated platform. And the market seems to like that decision, even if significant sectors don't like the precise contours of the moderation.

These comment threads are moderated for a reason. All of your arguments are against moderation entirely. Your arguments don't admit of a middle ground. And because they don't, they fail as a free speech argument. It is beyond dispute that someone spamming racial epithets on any reputable comment section can be banned, consistent with the First Amendment, by a private individual or corporation running the comment section. Ergo, moderation policies are constitutional. You just don't like where a private corporations have drawn their lines.

[Nige]

'Because such a policy would likely be extraordinarily detrimental to their profits,'

Not if it was in line with the ideology and culture of a sginificant political faction, which could afford it protection, preferential treatment and the custom of its base. It might even be an ideology promoted and sustained through the monetary contributions of its wealthy owner, and of other like-minded or opportunistic owners of businesses, meaning that the owner could be helping create the political milieu where his ideologically-driven business practices are both acceptable and profitable.

Other than that I agree with you, but from the point of view that private/political and profit/ideology are more complicated relationships.

[NOVA Lawyer]

Yours is a fair point. Mine, put simply is that, to the extent there is a problem, it isn't a free speech question as much as concentrations of wealth and power.

from the point of view that private/political and profit/ideology are more complicated relationships

And that point of view is well taken. Those relationships are quite complicated.

My main point is that a rule that the government gets to say what may and what must be published by private actors is, it should hardly need to be said, a bad idea. Hence, the First Amendment.

[ReaderY]

You fail to articulate a difference. What is a stamp if not the postal service’s logo? What else does a social media platform do other than post, ie. transmit, users’ messages? What makes addressing through paper and ink different from IP addresses for First Amendment purposes? You focus on the fact that one is pen and ink and the other electronic. But so what?

Second, since when does the First Amendment fail to protect speech addressed to a single recipient as distinct from the public?

Finally, assuming it matters, social media companies like Facebook claim the right to control speech directed at groups, i.e. a small number of users rather than the public as a whole.

[David Nieporent]

Second, since when does the First Amendment fail to protect speech addressed to a single recipient as distinct from the public?

Who said that the FA doesn't protect it?

But broadcasting is a different concept than sending a private message.

[NOVA Lawyer]

You fail to articulate a difference.

I made a distinction between (A) a closed envelope containing a message whose contents only the sender and receiver know unless the sender or receiver chooses to publish those in some way to another person or the general public (or subset thereof) and (B) a public message posted on a privately owned website (whether posted to anyone with an account or to select friends, the entire purpose of social media companies is to publish the statements of one person for, generally speaking, public consumption.

You’d have a point if Google or another email provider was only delivering email with which it agreed or, less perfect but at least arguable, if social media companies censored DM’s based on political content.

since when does the First Amendment fail to protect speech addressed to a single recipient as distinct from the public

You misunderstand the argument.

It’s not that the 1A doesn’t apply to speech between individuals, it’s that the services provided by social media companies are fundamentally different from services provided by mail carriers. That’s why most people make analogies to newspaper opinion pages and paid advertisements or to television or billboards.

If you disagree, please distinguish the 1A issues raised by Masterpiece Cakeshop and wedding photographer cases.

And, full disclosure, I don’t find it tenable for religious people to use 1A as both a shield from discrimination in commercial transactions by others against them and a spear to permit discrimination in commercial transactions by them against others. If moral objections to carrying a message hold sway in private commercial transactions (which I think they should, at least generally), then anyone can avail themselves of morally objecting to carrying the message (whether a newspaper letters-to-the-editor page, a baker, a photographer, or a social media company).

(Full disclosure: I absolutely agree that, in cases like Masterpiece Cake (which was determined on religious discrimination, not free speech grounds), the First Amendment protects bakers from writing messages with which they disagree on cakes, etc., or custom designing cakes for events to which they are morally opposed. I think it goes too far to allow discrimination based on generic cakes available for sale to the general public as those don’t carry any message and don't require the baker to do anything other than they always do which is simply bake a cake and generically ice/decorate it. But it seems to me, you would have to think, to maintain any consistency, that bakers should have to sell cakes with any message the consumer wants, no matter how objectionable the baker finds it. Messages on cakes, or artistically decorated cakes themselves, are a lot more like social media posts than are closed envelopes.)

[shawn_dude]

There were no competitors to the post office then, for a number of reasons, not the least of which was the government created it and runs it. But you've chosen an apple to compare to a turnip. Both are mostly spherical and you can eat both but the similarities end there.

A mail service isn't a publisher. They are a delivery service. They are not expected to open and review the contents generally. They do, however, have their own terms of service. For example, limits on mailing some flammable/explosive items. The contents of the material are not made public but merely delivered whole.

There are private delivery services that limit their service to specific types of items or from specific types of businesses. Why shouldn't they be able to pick and choose customers to deliver alcohol or sex toys or maybe kosher foods or Christian books?

Meanwhile, social media firms are publishers who are historically allowed to limit the focus of the material they publish.

[ReaderY]

As the opinion says, several social media companies have such a lock on key market segments that relevant businesses similarly have no effective choice. If videos is what you so, you pretty much have to use Youtube to get your message out. We

[David Nieporent]

If videos is what you so, you pretty much have to use Youtube to get your message out.

Apparently you haven't heard of TikTok, Twitch, Vimeo…

[Rev. Arthur L. Kirkland]

" Hard to believe that I'm reading a defense of Oldham's atrocious ruling on a libertarian blog. "

You are not. This is a movement conservative blog masquerading in unconvincing, garish libertarian drag.

[Kords]

The Fifth Circuit opinion was great apart from the fact that it criticized a party for relying on binding precedent, discarded that same precedent, and re-wrote Section 230 to favor its own pre-ordained outcome.

[David Nieporent]

Well, it didn't re-write Section 230 so much as completely ignore it.

[ah....Clem]

Well, they definitely misquoted it. From the ruling:

"But the Platforms’ argument finds no support in § 230(c)(2)’s text or context. First, § 230(c)(2) only considers the removal of limited categories of content, like obscene, excessively violent, and similarly objectionable expression."

Note the use of "similarly objectionable" when Sec 230 uses the phrase "otherwise objectionable"

That's either incredibly sloppy writing or it is deliberately misleading. The ruling then proceeds to claim that any material that is not "similarly objectionable" to obscene or violent material is not covered by Sec 230 when it's very clear from the actual language that "otherwise objectionable" includes many things, and is not limited to just the enumerated categories.

Seems to me that this kind of mis-representation would get you an F in Intro to Law, even at a fourth tier law school.

[David Nieporent]

Yeah, I called out that exact lie on one of the other threads here about it. Another big lie: Oldham also claimed that in 230 Congress made a factual finding that "platforms aren't publishers." But Congress did no such thing; there are factual findings in 230, but that isn't one of them. And of course "platforms" is a made up term not found in the statute at all.

But he also decided that 230 didn't preempt the Texas law even though the plain text of 230 preempts the Texas law.

[Kords]

Yeah this is exactly what I was thinking about.

[ah....Clem]

I recall seeing a quote from the ruling where Oldham criticized the plaintiffs for only citing precedent and not advancing "original" interpretations of the constitution, but I can't seem to find that in the ruling.

Do you have a pointer to that line in the ruling? (I saw it on twitter, so it might have been fake)

[ah....Clem]

Found it:

"Rather than mount any challenge under the original public meaning of the First Amendment, the Platforms instead focus their attention on Supreme Court doctrine.”

That's pretty breathtaking in its arrogance. The plaintiffs cited Supreme Court precedents. Isn't that how its supposed to work?

[Kords]

An attorney who advanced novel constitutional arguments while ignoring on-point Supreme Court precedent would be committing malpractice. It is absolutely not the role of lower courts to engage in constitutional reinterpretations in the face of contrary precedent.

[wolfefan]

I just admire the manly way Stewart Baker handles TSA checkpoints and boards airplanes.