President DeSantis's First Supreme Court Nominee

Episode 423 of the Cyberlaw Podcast

This episode features a much deeper, and more diverse, examination of the Fifth Circuit decision upholding Texas's social media law than we did last week. We devote the last half of this episode to a structured dialogue  between Adam Candeub and Alan Rozenshtein about the decision. Both have written about it, Alan critically and Adam supportively. I lead off, arguing that, contrary to legal Twitter's dismissive reaction, the opinion is a brilliant and effective piece of Supreme Court advocacy. Alan thinks that's exactly the problem; he objects to the opinion's grating self-certainty and refusal to acknowledge the less convenient parts of past case law. Adam is closer to my view. We all seem to agree that the opinion succeeds as an audition for Judge Oldham to become Justice Oldham in the DeSantis Administration.

We walk through the opinion and what its critics don't like, touching on the competing free expression interests of social media users and of the platforms themselves, whether there's any basis for an injunction today, given the relative weakness of the overbreadth argument, and whether "exercising editorial discretion" is a fundamental right under the first amendment or just an artifact of older technologies. Most intriguingly, we find unexpected consensus that Judge Oldham's (and Justice Thomas's) common carrier argument may turn out to be the most powerful argument in the case when it reaches the Court.

In the news roundup, we focus on the sprint to pass additional legislation before the end of the Congress. Michael Ellis explains the debate between the Cyberspace Solarium Commission alumni and business lobbyists over enacting a statutory set of obligations for systemically critical infrastructure companies.

Adam outlines a strange-bedfellows bill that has united Sens. Amy Klobuchar (D-Minn.) and Ted Cruz (R-Texas) in an effort to give small media companies and broadcasters an antitrust immunity to bargain with the big social media platforms over the use of their content. Adam is a skeptic, Alan less so.

The Pentagon, reliably braver when facing bullets than a bad Washington Post story, is performing to type in the flap over fake social media accounts. Michael tells us that the accounts pushed pro-U.S. stories but had met with little success before Meta and Twitter caught on and kicked them off their platforms. Now the Department of Defense is conducting a broad review of military information operations. I predict fewer such efforts and don't mourn their loss.

Adam and I touch on a decision of Meta's Oversight Board criticizing Facebook's automated image takedowns. I offer a new touchstone for understanding content regulation at the Big Platforms: They just don't care, so they've turned the whole effort over to second-rate AI and second-rate employees. There's a lot of explanatory power there.

Michael walks us through the Department of the Treasury's new flexibility on sending communications software and services to Iran.

And, in quick hits, I note that:

• The Justice Department's China Initiative continues to suffer pushback,
• We should all expect bad things from the emergence of  violence as a service, and
• Russian botmasters have suddenly discovered that extradition to the U.S. may be better than going home and facing mobilization.

Download the 423rd Episode (mp3)

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Comments

[ah....Clem]

Justice Oldham?

You mean the guy who either cynically or incompetently substituted "similarly objectionable" for "otherwise objectionable", an error that would get you an "F" in any 1Law class?

Shirley, you jest.

(Yeah, you're probably right that it was a SCOTUS audition. Shows how far down we've fallen.)

[Bill Falcon]

I just want Ron Paul in charge of the Fed and an admin free of any neocon types especially in foreign policy

[SRG]

I'd want someone in charge at the Fed who has appropriate knowledge and experience and isn't a gold-standard loon (parsed in two ways).

[Michael D]

#EndTheFed
You do not need a gold standard for that to happen.

[M L]

This.

[bernard11]

No loons at the Fed, please.

Paul is a loon. Not to mention an antisemitic asshole.

[Michael D]

How about no Fed at all. Forget who runs the place.

Labeling Ron Paul an antisemite is probably one of the dumbest labels I have ever seen used on Ron Paul.

[Rev. Arthur L. Kirkland]

I attended a Ron Paul rally years ago.

What a shambling collection of misfits, malcontents, kooks, and disaffected losers. They enjoyed being among fellow misfits, though, and even seemed to begin to feel somewhat normal for a short time as the evening developed.

[Bubba Jones]

Didn’t the courts use the common carrier argument when Trump tried to block people from his official Twitter account? Or do I misremember.

And definitely. The platforms have delegated content moderation to an autistic help desk staff. Anything that triggers any of the meat robots gets purged without recourse.

The goal is to minimize risk to the revenue stream.

[Sarcastr0]

Right to petition.

Autistic?

[ah....Clem]

Right. When the president does something (i.e. blocks some user) it’s *government* action with all the 1A implications that say the government can’t do certain things that restrict speech or the right to petition. When twitter or facebook or Reddit or one of their users blocks someone, it’s not *government* action and the 1A implication is that the non-governmental actor has the right to do it.

On the other topic, the vast majority of moderation is automated and pre-publication, despite Oldham’s woefully ignorant proclamation that:

“The Platforms do not choose or select material before transmitting it: They engage in viewpoint-based censorship with respect to a tiny fraction of the expression they have already disseminated.”

That’s not how this works. At. All.

[M. Potter]

The Supreme Court vacated the Second Circuit decision since Trump was out of office/suspended from Twitter at the time. Justice Thomas's concurrence from the denial of certiorari implicitly assumed there wasn't sufficient state action but spent the bulk of his opinion describing social media platforms being treated as common carriers as a hypothetical response to the problem of forum centralization in the industry.

[Syd Henderson]

Starting Halloween early?

[Moderation4ever]

I love the story of the Russian botmaster wanting to make his case in American courts. This answers the question, "what is better an American prison or conscription in the Russian Army".