The courts, well stocked with right wing nutjobs, particularly in the Confederacy, seem to be competing with each other to see who can make the most outlandish decisions, discarding not only years of precedence, but basic legal principles that even a child could understand.
The latest example (See also) is a decision from the 5th Circuit upholding a Texas law that:
makes it illegal for any social media platform with 50 million or more US monthly users to “block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression.
Of course the law provides the now commonplace ability for those offended by being “blocked, banned”, etc., to bring lawsuits seeking to enforce their right to be provided a platform from which to spew their vitriol, with the statute framed in such a way as to make it impossible for the social media platform to prevail.
I used to think that I could perform an occasional service on this blog by explaining some of the finer points of the law, but this one is too obvious. The First Amendment forbids the government from interfering in speech. It does not give each person the right to demand a platform from private parties. This law is so blatantly unconstitutional it’s hard to count all the ways in which it transgresses. There’s the fact that a state is impermissibly interfering with interstate commerce. There’s the fact that the state is requiring a publisher to publish things it prefers not to publish, which turns free speech on its head.
The 5th Circuit, taking a lesson from the Supremes, took this action without issuing a decision. Maybe the challenge of overturning mountains of precedent seemed like too much, so why bother. Far easier to issue a 15 word ruling simply setting the lower court’s legally correct ruling aside.
One irony of all this is that even rightwing judges don’t appear smart enough to see that a ruling such as this could come back to haunt them. From what I’ve seen, it’s far easier to get banned from Twitter if you’re on the left than on the right, and, consistent with the rule that if they accuse the left of something, they are in fact doing it themselves, it’s folks on the right who get all outraged by being dissed by folks on the left, who, assuming the law is fairly applied will be able to turn the law against the right. Oh, wait, I forgot that the courts will surely find a way to construe it so it only protects right wing speech.
Just a few years ago I would have written that “even this Supreme Court would never uphold this decision”, but now I’m stuck with saying that there’s a better than even chance they’ll find a way to do so. It won’t make any sense, but Alito’s recently leaked opinion proves beyond doubt that making sense is no longer a priority among the extremists on the court.
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