"New York Attorney General v. Blogging Law Professor re: Online Hate Speech"

I had such a great time talking to Prof. Genevieve Lakier (Chicago) and Prof. evelyn douek (Stanford) about the New York law mandating that social media platforms have "hateful conduct" policies, and about Volokh v. James, the case challenging the law. You can hear it on the Moderated Content podcast:

Comments

[Noscitur a sociis]

I see there will be a telephonic hearing on the preliminary injunction next Monday. Do you know if the public is permitted to attend via the call in number on the docket entry?

[Frank Drackman]

Sure Poindexter, any Tom's Dick and Hairy can call in.

[Jonathan Affleck]

This type of stupid law goes away if SCOTUS agrees with we when I assert that a social medium platform is a message common carrier. A common carrier has no 1st Amend right to deny common carriage or to remove property on the way to its destination from bailment.

The law abridges not social medium platform freedom of expression. The law abridges user 1st Amend rights.

This issue was already litigated once before in NY. See my petition to SCOTUS for a writ of certiorari pp 22-23, "Dial-A-Porn".

[Josh R]

Eugene agrees with you as applied to Facebook. But, he claims this blog is covered by the law even though it is not a common carrier.

[Jonathan Affleck]

Once upon a time a legal professional understood that common carriage could be in some sense redirected to a subordinate carrier.

The Volokh conspiracy blog holds out common carriage to commenters and depends on the Reason blog to provide common carriage. Reason blog depends on some blog host to provide common carriage. The blog host depends on some ISP (a common carriage), which gets telecommunications common carriage service from an NSP.

Circuit switched common carriage was similar. When a landline customer deal with one common carrier. In the completion of a call there were usually at least other common carriers -- possibly more.

Please read MGL c 159 s 1. The statute was enacted in 1869 when legal professions understood the issues like 2nd nature.

Every common carrier of merchandise or other property shall receive, transport and forward all property offered for such purposes by other such carriers as promptly, faithfully and impartially, at as low rates of charge, and in a manner and on terms and conditions as favorable to the carrier offering such property, as he on the same day and at the same place receives, forwards and transports, in the ordinary course of business, property of a like description offered by persons other than such carriers. Such carrier shall not discriminate against any particular person or subject him to any undue or unreasonable prejudice or disadvantage. The supreme judicial or superior court shall have jurisdiction in equity to enforce this section.

[Josh R]

I don't think subordinate common carrier status ought to apply to a blog's comments. The blog owner (and Reason) are doing something different than receiving, transporting or forwarding content. They are creating content. That suffices in my view to break the chain so that common carrier status doesn't apply to Reason (or any content further down the chain).

[Jonathan Affleck]

It's called a quasi-common carrier -- an entity that provides common carriage and some other service or product.

It's unusual but a newspaper that does its own shipping could also provide letter or package common carriage -- why not?

Amazon Whole Foods is a brick and mortar grocery store, but its delivery service provides common carriage of a grocery order to a customer. In Massachusetts, where common carriage law is strict, Amazon is always quick to replace lost groceries.

Anyway, if SCOTUS grants cert, it may address the issue of a comments section. I used to be a newspaper editor back in the 70s. There are several ways for a newspaper website to avoid common carriage obligations in the comments section of an article. One way -- the newspaper could implement the full "letters to the editor" model of print journalism. All letters could be sent to an editor that would decide which letters to publish.

[Josh R]

Eugene mentioned in the podcast that dealing with comments is a difficult issue that he hasn’t made up his mind on. However, he stresses that regulations of common carries must be viewpoint neutral. So, he is all in on challenging the law (he is firmly convinced the law is not viewpoint neutral (I think he is likely correct) even assuming you are right about this blog (or its comments) having common carrier status.

[Rev. Arthur L. Kirkland]

While 'making up his mind' about dealing with comments, Prof. Volokh has repeatedly decided to censor and ban liberal commenters for making fun of or criticizing his fellow conservatives. Whatever his eventual claimed position, his record includes plenty of viewpoint-driven censorship.

The rest of his positions on freedom of expression also tend to flutter with the then-current, conservative-leaning political winds.

[Life of Brian]

Prof. Volokh has repeatedly decided to censor and ban liberal commenters for making fun of or criticizing his fellow conservatives. Whatever his eventual claimed position, his record includes plenty of viewpoint-driven censorship.

For sufficiently small values of "repeatedly" and "plenty," as well as sufficiently distorted definitions of "making fun of" and "criticizing."

Other than that, Mrs. Lincoln, spot on as always.

[David Nieporent]

Amazon Whole Foods is a brick and mortar grocery store, but its delivery service provides common carriage of a grocery order to a customer.

JFC, you don't have the first clue what the phrase "common carrier" means. To quote Wolfgang Pauli, "This isn't right. This isn't even wrong."

[Jonathan Affleck]

David Nieporent continues to show his deficiency in legal knowledge. He needs possibly 3 years of refresher courses.

Amazon Whole Foods holds out carriage of grocery orders to the public under standard terms for a fee.

Amazon Whole Foods is a common carrier.

It’s not rocket science.

To tell the truth, for me rocket science is a triviality and has been since I was six years old, but rocket science would probably be challenging for David Nieporent.

[David Nieporent]

Amazon Whole Foods holds out carriage of grocery orders to the public under standard terms for a fee.

It does no such thing, you loon. Amazon delivers its own products to its own customers.

[Jonathan Affleck]

Amazon delivery holds out carriage for merchandise and property to the public under standard terms for a fee.

Amazon delivery provides common carriage.

David Nieporent is doubling down on his stupid pills.

[bernard11]

No. You are doubling down on yours.

A delivery company that will deliver anyone's goods, subject to its tariff, is a common carrier.

A company that delivers only its own goods is not. The word "common" is important.

[Jonathan Affleck]

The supporters or social medium platform abuse and discrimination seem to be total nitwits.

bernard11 is up to the octuple dose of stupid pills -- maybe he simply had his brain removed.

Common carriage refers to the public.

A common carrier can specialize its carriage.

Amazon delivery delivers my merchandise and property not its own merchandise and property.

A common carrier may be a common carrier with respect to a specific object of carriage.

A common carrier holds out carriage to the public under standard terms for a fee.

A roller coaster or Ferris wheel ride is used for common carriage.

An ocean liner and a container ship can be means of common carriage but the two craft carry different object entity types.

An oil pipeline can be a means of common carriage.

AT&T carries voice signals.

USPS carries mail.

A telegraph performs common carriage.

A railroad performs common carriage.

[David Nieporent]

bernard11 is up to the octuple dose of stupid pills — maybe he simply had his brain removed.

Martillo claims to be an adult — though to be fair, over the decades he has repeatedly changed his bio online depending on what's convenient for the moment — and yet his mode of argument is literally the schoolyard take:

"You're double stupid."
"Well, you're quadruple stupid."
"You're octuple stupid."

Can't we just cut to the chase and say that Martillo is stupid times infinity, and then move on to the part about how he doesn't understand any of the legal terms he uses? (Or ordinary English words.)

[Jonathan Affleck]

As long as Nieporent pontificates on legal areas about which he has no knowledge, I will call him a nitwit because he is. If he stops pontificating and ceases the derogatory language, which he started in lieu of rational argument, I will be polite.

He doesn't seem to understand that I started using computer technology when computers were tube-based. I became interested in the law of telegraphy and similar technologies when I was in Middle School.

One can put a letter in an envelope and mail it. One could put a letter into a telegram and transmit it. The law is the same and as long as David Nieporent denies the obvious, I will call him an idiot.

What form of property are letters? They are (usually unpublished) literary property. Letters are the subject of much caselaw.

Maybe Nieporent should buy The Cases of the Appellants and Respondents in the Cause of Literary Property, Before the House of Lords : Wherein the Decree of Lord Chancellor Apsle Was Reversed, 26 Feb. 1774. He could read the short text and become less of a nitwit.

[David Nieporent]

legal areas about which he has no knowledge,

You. Lost.

[David Nieporent]

A common carrier has no 1st Amend right

But since social media companies do have first amendment rights to do that, the only logical conclusion is that they aren't common carriers. (Also, neither "property" nor "bailments" are at issue. Still.)

[Jonathan Affleck]

A social medium platform only has a 1st Amendment right to remove a user or his content until SCOTUS says it doesn't, and I am trying to persuade SCOTUS to overrule all the ridiculous caselaw that takes 1st Amendment Rights away from a user and gives then to a social medium platform/message common carrier, which has no 1st Amendment rights to deny message transport to a user or to his content. See 9th Amendment Challenge to Social Medium Abuse.

The petition reached

• SCOTUS Nov 8;
• LinkedIn, Meta (Facebook), and the Stanford Daily Nov 9;
• the Harvard Crimson Nov 10; and
• Twitter and A Medium Corp probably Nov 12.

Maybe SCOTUS will clarify the Section 230. I have tried hard to provide SCOTUS with the best opportunity that will ever present itself. Twitter and A Medium Corp will almost certainly file oppositions. Maybe Facebook and LinkedIn will stop ignoring this litigation. I doubt that either the Harvard Crimson or the Stanford Daily has the money to participate. It's unfortunate. The behavior of these two college student newspapers has been exceptionally bad.

I argue both from an Originalist standpoint as well as from a Textualist standpoint. While strict construction has fallen into disfavor, I am a patent agent and read a textual limitation carefully.

My textual analysis is not susceptible to scrivener's error.

A 2022 social medium platform absolutely is not an ICS of Section 230.

To someone that understands the technology, Section 230 is clear.

Congress confirmed the immunities of an ICS like 1996 AOL, Prodigy, and Compuserve, which were dial-up Internet On-Ramps and message common carriers. Congress extended those immunities to an Access Software Provider, which provided similar service but was a private or contract message carrier.

Section 230 says nothing about unfettered editorial discretion or 1st Amendment rights of an ICS, whose definition a 2022 social medium platform does not meet.

The petition reached

Maybe SCOTUS will clarify the Section 230. I have tried hard to provide SCOTUS with the best opportunity that will ever present itself. Twitter and A Medium Corp will almost certainly file oppositions. Maybe Facebook and LinkedIn will stop ignoring this litigation. I doubt that either the Harvard Crimson or the Stanford Daily has the money to participate. It’s unfortunate. The behavior of these two college student newspapers has been exceptionally bad.

I argue both from an Originalist standpoint as well as from a Textualist standpoint. While strict construction has fallen into disfavor, I am a patent agent and read a textual limitation carefully.

My textual analysis is not susceptible to scrivener’s error.

A 2022 social medium platform absolutely is not an ICS of Section 230.

To someone that understands the technology, Section 230 is clear.

Congress confirmed the immunities of an ICS like 1996 AOL, Prodigy, and Compuserve, which were dial-up Internet On-Ramps and message common carriers. Congress extended those immunities to an Access Software Provider, which provided similar service but was a private or contract message carrier.

Section 230 says nothing about unfettered editorial discretion or 1st Amendment rights of an ICS, whose definition a 2022 social medium platform does not meet.

[David Nieporent]

and I am trying to persuade SCOTUS to overrule all the ridiculous caselaw that takes 1st Amendment Rights away from a user

And I'm trying to persuade Jeff Bezos to put me in his will. My goal is a bit more realistic than yours.

Also, no caselaw "takes 1st Amendment Rights away" from users. Users retain all their first amendment rights, which is to say that the government can't censor them, but private property owners are free to moderate them to their hearts' content.

A 2022 social medium platform absolutely is not an ICS of Section 230.

It 1,000% is. It is an information service that provides or enables computer access to multiple users to a computer server.

Section 230 says nothing about unfettered editorial discretion

Actually, it does. It says that they cannot be held liable for any voluntary, good faith action to restrict access to, or the availability of, objectionable material. (But, of course, the 1A also says that.)

[Jonathan Affleck]

Nieportent can always file an amicus brief in support of the respondents if he really believes his ridiculous reading of Section 230, which does not in any case apply to a 2022 social medium platform, which is not an ICS of Section 230 as I explain on pp. 23-31.

Nieporent's ridiculously expansive reading of "obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable" to grant First Amendment rights in conflict with message common carriage obligations is not consistent with ejusdem generis doctrine.

In my petition pp. 16-17 includes the following text.

A common carrier is a person who holds himself out as willing to serve any shipper who offers him a reasonable fee to transport the kinds of goods he professes to carry to a place he professes to serve, provided they were not unfit and his conveyance was not already full. See Lovett v. Hobbs, 2 Show. K.B. 127, 89 Eng. Rep. 836 (K.B. 1680); Jackson v. Rogers, 2 Show. K.B. 327, 89 Eng. Rep. 968 (K.B. 1683).

By definition, a common carrier has to serve all comers. If he wrongfully refuses to accept a consignment, he is suable in tort. See Jackson v. Rogers, 2 Show. K.B. 327, 89 Eng. Rep. 968 (K.B. 1683).

Section 230 merely states what is unfit for an ICS/Access Software Provider to transport and is consistent with the limited exception that we find to user 1st Amendment rights in U.S. v. Stevens, 559 U.S. 460, 130 S. Ct. 1577, 176 L. Ed. 2d 435 (2010).

SCOTUS has long been consistent in its treatment of unjustifiably expansive reading of a statute. See Patterson v. McLean Credit Union, 491 U.S. 164, 109 S. Ct. 2363 (1989).

[David Nieporent]

Nieporent’s ridiculously expansive reading of “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable” to grant First Amendment rights in conflict with message common carriage obligations is not consistent with ejusdem generis doctrine.

It's not "Nieporent's" reading; it's the reading of hundreds, if not thousands, of courts over the last quarter century. (Also, ejusdem generis is not a "doctrine," but a canon of construction, and the word you're missing is "otherwise.")

Also, thanks for demonstrating my point: social media companies do not:

(1) hold themselves out as willing to serve any shipper; or
(2) transport goods (which means that they don't in fact serve any shippers at all!).

Section 230 merely states what is unfit for an ICS/Access Software Provider to transport and is consistent with the limited exception that we find to user 1st Amendment rights in U.S. v. Stevens, 559 U.S. 460, 130 S. Ct. 1577, 176 L. Ed. 2d 435 (2010).

No, that's not what Section 230 "merely states." Also, for the fiftieth time, users have no first amendment rights vis-à-vis private companies. (Indeed, if they did, then 230 itself would be unconstitutional, since it expressly allows ICS to block material that is constitutionally protected.)

[Jonathan Affleck]

(1) hold themselves out as willing to serve any shipper; or
(2) transport goods (which means that they don’t in fact serve any shippers at all!).

The statute starts out with shipper because a common carrier that holds out to the public holds out to any shipper. A shipper may be another carrier as well as an ordinary customer ("persons other than such carriers").

A customer only cares that his item goes where it is supposed to go when the item is handed over in bailment to the primary common carrier. If the primary common carrier uses a secondary shipper to complete the carriage, the primary common carrier has the heightened responsibility to make sure that the secondary shipper completes the assignment.

The same logic applies to voice common carriage. If I call California, my local carrier does not deliver my voice to the end user in California. Multiple carriers are involved. The FCC only regulates interstate telecommunications common carriage. State authorities regulate the local loop often by means of state common carriage law.

Twitter, Facebook, LinkedIn, and other social medium platforms provide APIs so that another website/message common carrier can forward digital personal literary property from its user to be carried by the social medium platform whose API was integrated into the website software. The social medium platform becomes a secondary shipper. Sometimes it's helpful to understand both the law and technology.

No, that’s not what Section 230 “merely states.” Also, for the fiftieth time, users have no first amendment rights vis-à-vis private companies. (Indeed, if they did, then 230 itself would be unconstitutional, since it expressly allows ICS to block material that is constitutionally protected.)

A common carrier has a limited non-discriminatory right to decide unfitness of goods for him to carry ("the kinds of goods he professes to carry"). For instance, a common carrier of videos might only carry children's educational videos. Section 230 extends the limited non-discriminatory common carrier right to an ICS, which is not a common carrier.

[Noscitur a sociis]

Nieportent can always file an amicus brief in support of the respondents if he really believes his ridiculous reading of Section 230, which does not in any case apply to a 2022 social medium platform, which is not an ICS of Section 230 as I explain on pp. 23-31.

Your petition is going to be denied without the need for responsive briefing of any kind.

[Jonathan Affleck]

It is unlikely for any petition to be granted cert, but SCOTUS must deal with the split between the Fifth Circuit and the Eleventh Circuit.

Florida only made half the argument for common carriage while I made the other half. Four Justices are at least are sympathetic to my argument. It only takes four to grant cert.

Only someone, who isn't following SCOTUS, would consider anything a sure thing with this SCOTUS, If either Nieporent or Noscitur A Sociis is so sure of their ridiculous and ignorant arguments, he should file an amicus brief now before conference.

Twitter and Medium took my argument seriously enough to argue with me for a year before the Court of Appeals.

I discussed my analysis of Section 230 and my problems with Zeran with Justice Kagan years before her appointment. She never told me I was wrong. I am one of the few petitioners, who gets to cite himself as an authority.

[Noscitur a sociis]

If either Nieporent or Noscitur A Sociis is so sure of their ridiculous and ignorant arguments, he should file an amicus brief now before conference.

I’ll do you one better.

If your petition isn’t denied following the first conference, I will pay you $500.

If it is, you will agree never to comment here again.

Deal?

[Jonathan Affleck]

Do you think I’m stupid? I’m a B+/A- level mathematician. You have to give me odds.

According to the U.S. Supreme Court website, the Court receives approximately 10,000 petitions requesting a writ of certiorari each year. Of those, approximately 100 actually receive the writ and have oral arguments before the Court.

You have to put up at least 100 dollars to every one that I put up.

Martillo v. Twitter is so unusual that I should probably expect even better odds.

The offered bet provides even more evidence of every negative impression that I have of a clown that supports social medium platform discrimination and abuse.

Read the petition. Martin mapped out this strategy before he died. It’s an odd petition. There was never even service of the original complaint. This case does not end with a denial of cert. It begins. Likewise the case also begins if writ is received.

[Noscitur a sociis]

I’m not asking you to put up any money, just to stop spamming this site (if you lose, of course).

How much do you need me to put up for you to take the bet?

[David Nieporent]

This case does not end with a denial of cert. It begins.

Was it over when the Germans bombed Pearl Harbor?

[Jonathan Affleck]

The Section 230 definition of ICS is probably much too complex for David Nieporent to understand.

It is not surprising that he butchers and garbles the definition of ICS.

I explain how to understand ICS starting from p. 23 in my petition.

[David Nieporent]

No, you simply fabricated words and pretended 230 had different language in it than it did.

[Jonathan Affleck]

It appears that David Nieporent has never tried to understand the meaning of a statute like:
1. pre-1991 42 U.S. Code § 1981 - Equal rights under the law.
2. 42 U.S. Code § 2000a - Prohibition against discrimination or segregation in places of public accommodation.
3. 35 U.S. Code § 112 - Specification.

There are many statutes in which one must spend effort to determine exactly what each relative clause modifies and why each comma is placed where it is.

Statute [1] is probably the least difficult. The current clause (b) was added in 1991. What's the difference? See Patterson v. McLean Credit Union, 491 U.S. 164, 109 S. Ct. 2363 (1989).

How does statute [2] desegregate a public drinking fountain? I supposes one could try to argue ejusdem generis, but Courts have been consistent in demanding that a true place of public accommodation be identified. A public drinking fountain is a valve on the water main. What is a water main? A restroom is a place. Is a faucet (a valve) in a sink in a restroom a place? One word makes all the difference. Which word is it?

How was [3] [§ 112(a)] interpreted to require possession, enablement, and metes and bounds? From where do metes and bounds come? Why doesn't a Court worry about best mode any more? In applying [3], which requirement is a matter of fact, and which is a matter of law and why? I have read some fairly long documents that try to explain § 112(a), which is only the start of proper claiming.

In § 230(f)(3), which word is antecedent to "that", and which word does ", including" modify? Why? What is an access software provider from § 230(f)(4)? ASP is part of the definition of ICS. I have read a complaint that asserted Salesforce was an ASP. The case documents were like the script to a comedy. Neither the Plaintiff, the Defendant, nor the Judge knew what an ASP was. If I remember correctly, utter confusion persisted into the Court of Appeals.

[Jonathan Affleck]

Typos.
1. SCOTUS Dec 8;
2. LinkedIn, Meta (Facebook), and the Stanford Daily Dec 9;
3. the Harvard Crimson Dec 10; and
4. Twitter and A Medium Corp probably Dec 12.

[Eugene Volokh]

Common carriers most certainly do have First Amendment rights: Phone companies can express their views, as can trucking companies, and various other companies. So can other utilities that have an obligation to serve all (see, e.g., Consolidated Edison Co. v. Public Serv. Comm'n (1980)).

Likewise, when the Supreme Court upheld legal rules that require entities to host others' speech -- PruneYard, Rumsfeld v. FAIR, and Turner Broadcasting -- the entities (shopping malls, universities, and cable system operators) of course had First Amendment rights to speak. The Court held that they lacked a First Amendment right to exclude certain speakers from their property, not that they lacked First Amendment rights generally.

[Jonathan Affleck]

I believe I am making the same point that Professor Volokh makes but less directly.

A message common carrier like a 2022 social medium platform, which is not an ICS of Section 230, has no 1st Amendment right to deny a user or his content transport. In addition, hosting is not speech. In the AT&T legal department, we explicitly considered the hosting of Dial-A-Porn or other narratives in the network by Mass Announcement Network Service to be bailment and not speech of AT&T. See my petition, pp. 13-23.

AT&T or a 2022 social medium platform has 1st Amendment rights with respect to its own speech, Yet the public has a 9th Amendment right to non-discriminatory common carriage. It is nothing less than a judicial coup for the federal judiciary to take 1st Amendment rights away from the public and give them to a social medium platform.

There never was a trial in Martillo v. Twitter. My complaint was dismissed before service. My petition only deals with matters of law. My petition has not been docketed yet. When it is, I can provide blanket assent to the filing of amicus briefs. Perhaps Professor Volokh and other Constitutional scholars would like to weigh in on the issues I raise. In the petition, I tried to cover everything relevant including group distributor libel.

[Jonathan Affleck]

Likewise, when the Supreme Court upheld legal rules that require entities to host others’ speech — PruneYard, Rumsfeld v. FAIR, and Turner Broadcasting — the entities (shopping malls, universities, and cable system operators) of course had First Amendment rights to speak. The Court held that they lacked a First Amendment right to exclude certain speakers from their property, not that they lacked First Amendment rights generally.

I need to remind that the Internet belongs mostly to the government and to the public not to a discriminatory social medium platform, which does not possibly meet the definition of a Section 230 ICS. The social medium platform/message common carrier only has bailment of user digital personal literary property in its backend server. A message common carrier no more has 1st Amendment right to discard user property held in bailment than a parking garage has a 1st Amendment right to tow a garaged car to a junkyard and have it crushed.

In my petition I point out that Section 230 (a & b) constitute government designation of the Internet to be a public forum so that public forum doctrine applies to the Internet while state action doctrine applies to social medium platform discrimination within a government network, which is a constituent network of the Internet.

My gloss of Section 230 (a & b) can be found on pp 36-38.

I summarize at the end the petition.

A social medium platform is role model for Constitutional violation, statutory violation, common law violation, and nasty discrimination.

The Internet culminates technological evolution that goes back at least 180 years. Caselaw developed along with technology. The attempt of District Courts and Appeals Courts to ignore long standing and well-reasoned precedents is not judicial but is ideological and creates a legal and political disaster transforming a court of law into a court of discretionary abuse.

[A Guy]

Owned by the government? What are you on about.

So any person that builds a thing on their personal propety that connects to the internet is now the government? Because i live on a street connected to highways, am I in interstate commerce.

The fascinating thing about this is that with what you are saying, both Facebook's original "college kids only "and twitter "128 characters only policy" would be violations of the common carriage law.

It loses all sense the moment you think about it.

[Jonathan Affleck]

A Guy truly does not understand common carriage. I hope he is not a lawyer.

Original Facebook was not holding out carriage to the public. At that time Facebook was a private carrier.

The merchandise or property, which Twitter carried via message common carriage consisted of digital literary property of 128 characters or less. A common carrier does not have to transport every form of merchandise or property. A voice common carrier only holds out carriage of voice, which technically is neither merchandise nor property.

I have looked over the statistics of the largest part (by network) of the Internet. The constituent government networks of the Internet consist of constituent networks that the US government owns including US federal networks, US hospital networks, US military networks, US library networks, US museum networks, state networks, state hospital networks, state college networks, state museum networks, state library networks, and state pre-college school networks. Some types of government networks have probably slipped my mind.

Ownership of constituent Internet networks must be contrasted with ownership of the pre-Breakup AT&T circuit-switched network by AT&T. AT&T was insistent on owning every piece of the network down to the Customer Premises Equipment (CPE) -- telephone handsets for those that did not work for AT&T. AT&T was consciously avoiding issues related to public forum doctrine or to state action doctrine.

If I am not mistaken, the only circuit-switched network, which AT&T managed within the US and which AT&T did not own, was the hardened military network.

PBXs were a sort of exception in the last days of pre-Breakup AT&T, but AT&T really wanted a company to rent Centrex service from an AT&T company. When I worked for AT&T, one could only hook up a standalone AT&T PBX to the AT&T phone network, and a standalone AT&T PBX was crippled because it could not do call routing. (A company could not purchase multiple standalone PBXs and configure them to route calls between handsets attached to different standalone PBXs. If a company had multiple locations, the company connected a separate standalone PBX at each company to the AT&T network, which routed calls among the company's PBXs at each location -- one PBX per location. The terminology is somewhat confusing like all telephony technology. A PBX can refer to the whole private branch exchange or to the specific switch which connects calls within the private branch exchange.)

[David Nieporent]

I need to remind that the Internet belongs mostly to the government and to the public not to a discriminatory social medium platform,

The Internet doesn't belong mostly to any one entity, and in any case is irrelevant since you're not suing the Internet. You're suing Twitter, and Twitter's servers belong 100% to Twitter.

which does not possibly meet the definition of a Section 230 ICS.

It precisely meets it. It is an information service that provides or enables computer access by multiple users to a computer server.

The social medium platform/message common carrier only has bailment of user digital personal literary property in its backend server.

More gibberish. This is mad libs; you're just throwing random words that you think sound legalistic together despite not knowing what any of them mean or how they apply. A lot of non-lawyers mistakenly think, as you do, that law is like this: a series of obscure magic words that, if incanted in the proper tone like the famous Wingardium Leviosa scene, will cause the feather to float and the court to rule in their favor.

A message common carrier no more has 1st Amendment right to discard user property held in bailment than a parking garage has a 1st Amendment right to tow a garaged car to a junkyard and have it crushed.

Since a car is not speech, that's not even a tangentially apposite situation, and a post on twitter is no more user property held in bailment than fog is.

In my petition I point out that Section 230 (a & b) constitute government designation of the Internet to be a public forum

In my memoirs I point out that I am the King of Siam, and that's as equally accurate.

Also, once again: we're not talking about the Internet; we're talking about a private company. Which every single court in the history of ever has ruled is not a state actor.

[Jonathan Affleck]

Maybe David Nieporent has quadrupled down on his stupid pills.

The Internet may not be owned by anyone, but the constituent networks are definitely owned by many entities. I own a constituent network. I often use the UMass network, which is government owned. I often use the Boston Public Library network, which is government owned. I often use the Cambridge Public Library network, which government owned. I often use the Harvard and MIT networks, which are privately owned but not owned by Twitter.

Section 230 designates the Internet a public forum. The Internet qualifies to be a government-supported place of public accommodation.

AT&T provides voice network common carriage service, but AT&T owns its whole network (and has common carriage settlement agreement with other telephone common carriers).

Twitter provides an Internet common carriage service but Twitter owns almost nothing of the Internet.

Let's count the violations of Twitter:

1. common carriage denial,
2. common carriage discrimination,
3. civil rights discrimination,
4. public accommodation discrimination,
5. public forum doctrine violation, and
6. state action doctrine violation.

If David Nieporent believes I am wrong, he should file an amicus brief for the respondents in opposition to my petition. If David Nieporent does not file an amicus brief, we can conclude that he is just screeching his vast legal and technological ignorance vacuously.

He can find learn more info about the petition at Affidavit of Service and Certificate of Compliance.

[David Nieporent]

The Internet may not be owned by anyone, but the constituent networks are definitely owned by many entities.

Yes, of the oodles of networks that combined make up the thing called "the Internet," some are owned by the government. Many others are not. So you admit your original claim was wrong; that's a good start.

Section 230 designates the Internet a public forum. The Internet qualifies to be a government-supported place of public accommodation.

Every word there is false. Section 230 does not contain the phrase "public forum." Also, the Internet isn't a place. Also, you're not suing the Internet, so that would be irrelevant anyway. You're suing private companies.

If David Nieporent believes I am wrong, he should file an amicus brief for the respondents in opposition to my petition.

Or, I could just point at you and laugh when everyone ignores your second cert petition in this case and SCOTUS denies cert yet again.

[Jonathan Affleck]

David Nieporent must also be blind.

Since a car is not speech, that’s not even a tangentially apposite situation, and a post on twitter is no more user property held in bailment than fog is.

Could he truly have never seen a taxi that is covered with advertisements?

I used to have a Free Palestine bumper sticker on my car.

A tweet is text, i.e. unpublished literary property, which is stored in bailment in a backend Twitter server on its way to its destination.

If I ship manuscripts (also unpublished literary property) of my screenplays cross country by truck common carrier, the manuscripts may be in bailment at an intermediate location on the way to their destination.

Legally, there is no distinction between Twitter common carriage with bailment and trucker common carriage with bailment.

David Nieporent also seems totally ignorant of the law of warehousing.

I am surprised that David Nieporent never seems to be embarrassed by his own stupidity and ignorance.

See The Doctrine of Ejusdem Generis in Missouri .

[David Nieporent]

Once again, you're one who keeps losing every court case. At some point you've maybe got to realize that it's you, rather than the courts and lawyers, who are wrong about the law.

A tweet is not property. It is also not unpublished. And doesn't have a destination. And it isn't a bailment. Manuscripts, of course, are property (assuming from context you mean to refer to an actual physical pile of paper).

(To the extent that "literary property" actually has some semantic content to it, it refers to copyright. But you aren't transferring possession of the copyright — neither in the case of twitter nor in the case of your physical manuscript.)

[Jonathan Affleck]

There never was a trial. The only issue was and remains abuse of discretion. I signaled the Court of Appeals that it was no longer relevant to deal with the litigation in the Court of Appeals. The Court of Appeals released me so that I could petition SCOTUS, and I have.

As for losing every case, I repeat that service has yet to take place in Martillo v. Twitter. Burton lost at every step of his litigation until he won. At least four Justices show signs of extreme discomfort with Section 230 Caselaw.

At AT&T I used to prep an attorney to go before a Trial Court, the FCC, an Appeals Court, or once in a while before SCOTUS. I would prefer to have my old role but Martin died. It’s somewhat late in the process for an attorney to undertake to represent me in Martillo v. Twitter, but if a legal scholar of sufficient stature offered, I would be interested.

It’s worth mentioning that I can prevail in District Court if any petition results in a ruling that overturns Section 230 caselaw. The ruling does not have to result from my petition.

How is a tweet published? If I write a haiku. It's my literary property. If it's unpublished, the haiku is my unpublished literary property. I can certainly fit a haiku into a tweet.

What's the relevance of an explicit destination to common carriage?

A Twitter user does not see my tweet until he requests it -- just as no telephone user heard a Dial-A-Porn narrative until he requested it. A Dial-A-Porn narrative was held in bailment in an AT&T database. A Tweet is held in bailment in a Twitter database.

What is the legal distinction? I only perceive one difference. A white racist wants Twitter to be able to discriminate against a Twitter user that seeks message common carriage of his Tweet.

[Noscitur a sociis]

As for losing every case, I repeat that service has yet to take place in Martillo v. Twitter.

You are correct that the trial court thought your lawsuit was so worthless that your putative defendants shouldn’t have to waste their time responding to it.

The fact that you think that is a point in your favor kind of says it all.

[Jonathan Affleck]

Someone lacks understanding of legal strategy. At least four Justices seem to think Section 230 caselaw is severely broken, but it's hard to convince a lower court to overrule a higher court.

Until the Fifth-Eleventh Circuit split, the Courts of Appeals have been going over the cliff like lemmings with ridiculous decisions even if I have to admit that some of the complaints read like cartoons.

We always aimed to get to SCOTUS as quickly as possible and cared little about any proceeding in the run-up to SCOTUS.

I also have a specific problem. I suffer from logorrhea. 9000 words is somewhat too short for me. I have difficulty using only 10 words when I can use 100 words even though 10 words might have sufficed. Hence two petitions, and there will probably be at least one more trip to SCOTUS. Sometimes, the legal strategy involves wearing the Justices down. It worked in overruling Lochner. It will work in burying Section 230 and white racist discrimination by a social medium platform.

[David Nieporent]

There never was a trial. The only issue was and remains abuse of discretion.

The funniest part of this claim is that you're misusing legal terms in a way that hurts your position. You're claiming that the District Court made an error of law, which is much easier to prevail upon than a claim of abuse of discretion.

I signaled the Court of Appeals that it was no longer relevant to deal with the litigation in the Court of Appeals. The Court of Appeals released me so that I could petition SCOTUS, and I have.

No; that's more gibberish. The Court of Appeals did not "release" you; it affirmed the District Court's opinion dismissing your suit.

As for losing every case, I repeat that service has yet to take place in Martillo v. Twitter.

That's because — despite your self-proclaimed genius — you couldn't even afford the filing fee, which meant that the court had to screen your case at the outset. And it found that your case was so meritless that it was dismissed immediately. This is not a point in your favor.

What’s the relevance of an explicit destination to common carriage?

A good question for you to ponder.

What is the legal distinction? I only perceive one difference.

Why you're admitting myopia is unclear.

[Jonathan Affleck]

The funniest part of this claim is that you’re misusing legal terms in a way that hurts your position. You’re claiming that the District Court made an error of law, which is much easier to prevail upon than a claim of abuse of discretion.

You may not be incorrect, but I'm believe I am constrained by the PLRA and its caselaw, which seems to indicate that a dismissal before service can only be reversed upon a finding of abuse of discretion.

Abuse of discretion requires showing that the dismissal is not based on a sound legal conclusion.

I have been filing Notices to the Court of Appeals for the First Circuit since I first learned that Florida was going to petition to SCOTUS for writ of certiorari in Moody v. Netchoice. The panel consisted of smart Judges. I thought they would eventually realize what I wanted. The panel has no reason to issue an opinion when SCOTUS seems about to issue guidance on at least some of the major questions in Martillo v. Twitter, and my original complaint was not dismissed with prejudice.

Covid slaughtered my business while suspension from social medium platforms ruined my ability to keep up with new and existing clients.

As for an explicit destination, a trash hauler can be a common carrier. A person that uses the service of a trash hauler usually doesn't care where the hauler transports the trash.

[David Nieporent]

I have been filing Notices to the Court of Appeals for the First Circuit since I first learned that Florida was going to petition to SCOTUS for writ of certiorari in Moody v. Netchoice. The panel consisted of smart Judges. I thought they would eventually realize what I wanted. The panel has no reason to issue an opinion

You're entitled to your opinion, but the First Circuit disagreed and issued an opinion. They issued their mandate. The case is over, unless SCOTUS grants cert, which it will not.

when SCOTUS seems about to issue guidance on at least some of the major questions in Martillo v. Twitter, and my original complaint was not dismissed with prejudice.

Your original complaint absolutely was dismissed with prejudice. What on earth are you talking about? Dismissal for failure to state a claim is a decision on the merits, and is a dismissal with prejudice unless otherwise stated.

[Jonathan Affleck]

Statutory copyright is an in personam right.

One has in rem property right to literary property like a Gutenberg Bible or to a letter one receives.

Unpublished literary property can also exist in a computer memory. Until Cockle published my petition, it only existed in the form of unpublished literary property (I suppose printing and distributing 61 copies constitutes genuine publication), and I had both in rem and in personam rights to this literary property.

Can one have in rem rights to digital literary property once it becomes public?

I found a simple article written at the 4th or 5th grade level, which is entitled Demystifying cryptocurrency and digital assets. Search for "Non-fungible tokens".

[Jonathan Affleck]

My petition has been docketed. White racist supporters of social medium platform discrimination should put their money where their mouths (or keyboards) are and submit amicus briefs.

[Shamie Ervin iv]

When it's on YouTube I'll get it if it has closed captions. I'm deaf and getting deafer.

[Dr. Ed 2]

I'm just lazy and prefer to read it.

I can skim (and slow down when I want to) at a whole lot faster pace than anyone can speak....

[David Nieporent]

Many podcast apps (and YouTube players, for that matter) allow you to play at 1.25x, 1.5x, or even 2x speed. I don't normally like that, but there are some videos/podcasts where people talk so slowly that I have to do it to keep my sanity.

[Heedless]

I tried that with books on tape, but I hate Alvin and the Chipmunks, and I don’t like having them read things to me.

[Frank Drackman]

What!?!??! Speak Up!!

[Frank Drackman]

Wow, sounds great, why don't they try whatever it is that's kept that Anti-Semite Al Sharpton off of Media for the last 30 years?? (What happened to him anyway? can't be on any kind of media people actually pay attention to)

Frank

[CindyF]

There is no such thing as "hate speech". There is speech you disagree with and speech that hurts your feelings, but the solution to online speech that you consider "hate speech" is for you to ignore it.

[Mr. Bumble]

Same goes for hate crimes. The crime is the crime no matter the motivation.

[Dr. Ed 2]

A friend's brother -- a tow truck driver -- made a point to me one night: What is a hate crime? You don't do stuff like that to people whom you love....

The more I've thought about it, the more I realize how right he is.

[Michael P]

The typical legal definition is that a hate crime is motivated strongly or specifically because of the perceived identity of the victim. Whether that is worthy of escalating the punishment can be argued, but the definition is reasonably precise (although it can be hard to prove in court because it is based on the criminal's motivation).

[Frank Drackman]

and Blacks murdering Whites isn't "Hate" because that's just the way Black Peoples be

[Bored Lawyer]

Wrong. THe only "hate crime" case that made it to the US Supreme Court involved a black defendant who went after white victims.

Wisconsin v. Mitchell, 508 U.S. 476 (1993)
https://supreme.justia.com/cases/federal/us/508/476/

[Mr. Bumble]

I don't think the victim of a crime gives much of a damn about the criminal's motivation.

[Voize]

We generally don't hold people criminally responsible for accidents, even if the victims don't give much of a damn about motivation then either.

[David Nieporent]

One can't make a universal statement about what crime victims (or any other class of people) care about, but it seems implausible to suggest that most don't care. If I wronged someone and he hits me in retaliation, I'm going to be unhappy — but if someone hits me for no reason at all, I'm going to be unhappier.

Also, prosecution is not done solely for the benefit of crime victims; it's done for the benefit of the community as well. If you are a member of a group that is often the target of hate crimes — let's say the Jewish community — and you hear that a Jewish guy, say, got hurt when his girlfriend's jealous ex-boyfriend attacked him, well, sucks for that guy, but it's just ordinary crime. Shit happens. But if you hear that a Jewish guy got assaulted because a neo-Nazi group is randomly targeting Jews, then you have to fear also.

[The Margrave of Azilia]

Here is the AI's thoughtful response:

"It is true that the typical legal definition of a hate crime includes the requirement that the crime be motivated by the victim's perceived identity. However, this definition has been criticized by some as being too narrow and not adequately capturing the full range of reasons why hate crimes may be committed. Additionally, proving the motivation of the perpetrator in court can be difficult, which can make it challenging to successfully prosecute hate crimes. Ultimately, the appropriateness of escalating punishment for hate crimes is a matter of debate and can depend on the specific circumstances of each case."

[Frank Drackman]

Good for you, most of us don't have to think about it

[ReaderY]

A question to Ptofessor Volokh

Suppose a state passes the opposite sort of policy common carrier status could be mposes strictly based on purporting to be open to the public, without regard to size or quasi-monopoly power.

Could it be applied to the Thursday Open Comment Thread, but not to the rest of the blog?

After all, in this one weekly feature you hold yourself out to providing a public forum for any comments on any subject.

Having done this, could an appropriately worded law prohibit you from removing posts or users from this section of the blog? Would it apply only to that feature of the blog, and not to comments on regular Conspirator posts where you could require comments to be related to the post? Would this (or similar) assertion of editorial control over the comments defeat common carrier status?

[elnurmamedrafiev]

In other news, the 2nd Circuit has once again stayed an injunction against New York's unconstitutional gun law. There's no reasoning given, so the obvious reason is to delay as long as they can.