Free Speech Unmuted: Moody v. Netchoice and Murthy v. Missouri

Jane Bambauer and I quickly run down what happened in these two cases (both of which involved First Amendment challenges and social media).

Comments

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

IANAL, and this, to me, is exactly the kind of quibbling that results from caring more about ritual than justice, and more about governments than individuals. It really is a good illustration of lawyers' true super power, the ability to turn every question into a question of procedure.

The core problem to individuals is having accounts canceled for no discernible reason, or for inconsistent application of vague rationalizations. These social media companies market themselves as the way to stay in touch with family, friends, customers, and the general public. Their terms of service are so full of nonsense and two bit words that no one reads them, and everyone knows that, including lawyers, judges, politicians, and the businesses themselves.

People can spend years happily posting, then suddenly one day get cut off without warning, with only the most opaque appeals process, and if they decide to hold them accountable in courts, it takes years and millions of dollars.

So of course they scream to the politicians, and politicians do the only thing they're good at: screw it up with more vague and opaque laws that no one understands.

The US judicial system, and I suspect all developed countries' judicial systems, are not designed for justice. They are designed to keep the hoi polloi at bay, to make them dependent on Big Brother, and to provide excuses when necessary to put the most obstreperous of them in jail.

Having an account canceled ought to be settled in a day, the same day it is noticed. Did the company's algorithm blindly cancel someone without human intervention? Did an employee spend all of 5 seconds reviewing the cancel list? They should not be able to postpone their day of reckoning to "study the issue"; they should have done that before they canceled the account. Any request to postpone their day of reckoning ought to be treated as proof that they canceled the account without proper review.

When the system is as rigged and corrupt as all modern judicial systems are, of course politicians are going to make it worse. But so do the lawyers and especially judges who pretend everything is working fine, and the very slowness of it is a feature because it bespeaks its thoroughness.

Designating these social media giants as common carriers would be some sort of bandaid, but better yet is to leave them alone and unregulated, and with a proper responsive and cheap judicial system which would let their customers keep them regulated, rather than government regulators and slow procedural questions.

[Rev. Arthur L. Kirkland]

Artie Ray Lee Wayne Jim-Bob Kirkland -- banned by the Volokh Conspiracy for making fun of conservatives a bit too deftly for some tastes -- feels your pain.

[David Nieporent]

The core problem to individuals is having accounts canceled for no discernible reason,

Of course the laws that were at issue in Netchoice were not based on people complaining that their accounts were canceled for no discernable reason; they were based on people complaining that their accounts were canceled for very discernable reasons… that they disagree with. (“I should be allowed to promote snake oil as treatment for a deadly disease if I feel like it.”) And the core problem there is people who pay absolutely nothing for a service think they’re entitled to use said service on their own terms, rather than just being grateful they were allowed to use it at all.

Any request to postpone their day of reckoning ought to be treated as proof that they canceled the account without proper review.

There is no "proper" review. These are private businesses; one isn't entitled to any review at all before they decide they don't want to do business with you anymore.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

You missed two out of two.

1. When "the people" can't get satisfaction from a functioning judicial system, they turn to politicians who produce more bullshit legislation. Thus the two bullshit cases.

2. When companies' marketing differs from reality, something's wrong; they promise one thing and deliver something else, hiding behind opaque procedures and a broken judicial system more concerned with ritual than justice. These canceled account disputes should be cleared up the same day; the fact that the companies slow things down with expensive discovery and irrelevant court procedures is damn good evidence that they didn't internally review their actions, that some automated system just made bullshit decisions, and if they had any human review, it was so perfunctory as to be meaningless. In other words, they went off half-cocked and use the slow judicial process to make their victims go away. That is not justice.

You must be a lawyer, and that is not a compliment.

[benji]

Why should a private business have to do any of that instead of just telling them to fuck off?

[David Nieporent]

Your paragraph #2 is extremely puzzling. You seem to think that these companies are the ones taking the matters to court. The companies do clear up the matters on the same day: "we don't want you around anymore; bye bye." It's then disgruntled, ungrateful former customers who bring the matters to court where "expensive discovery and … court procedures" come into play.