Battle for Section 230 - The Situation Monitoring Thread for Monitoring the Situation of the Situation Monitor's Situation Monitoring

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RichardMongler said:
Major happenings ahead, folks.
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For those who don't want to read the article:
"In 2015 a bunch of Muslims tried to violently force their religion on France. Now, the family of some American caught lackin' in Paris is being used as useful pawns by people looking to make it illegal to post Sleepy Joe memes on Boomerbook, or question why a guy decapitated by a hydraulic press is being listed as killed by a mild flu variant."

lol/lmao at suing someone besides the Feds for 'enabling terrorism'... as though all that money they gave to Syrian rebels didn't get redirected.
 
RichardMongler said:
Major happenings ahead, folks.
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I'm generally pretty confident in SCOTUS jurisprudence on the First Amendment. I can't think of anything they've gotten majorly wrong in the last couple decades. The furthest left and furthest right members are more or less on the same page when it comes to freedom of speech and most of the important recent decisions have come down 9-0.

I am not a huge fan of Citizens United, but at the same time I'd rather see them be overinclusive (i.e. "money is speech") than underinclusive (nothing but words on a page or out of your mouth are speech).

I don't see them screwing this up.
 
AnOminous said:
I'm generally pretty confident in SCOTUS jurisprudence on the First Amendment. I can't think of anything they've gotten majorly wrong in the last couple decades. The furthest left and furthest right members are more or less on the same page when it comes to freedom of speech and most of the important recent decisions have come down 9-0.

I am not a huge fan of Citizens United, but at the same time I'd rather see them be overinclusive (i.e. "money is speech") than underinclusive (nothing but words on a page or out of your mouth are speech).

I don't see them screwing this up.
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On the other hand...
 
AnOminous said:
I am not a huge fan of Citizens United, but at the same time I'd rather see them be overinclusive (i.e. "money is speech") than underinclusive (nothing but words on a page or out of your mouth are speech).
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You...do know that's not what C.U. was about and those things were decided in previous court cases, right? Like you gotta know considering you're one of the more intelligent legalkiwis here and you're just using the things people falsely attribute to C.U. cause most people are dumb and don't understand what the decision was actually about.
 
introvertedobserver said:
You...do know that's not what C.U. was about and those things were decided in previous court cases, right? Like you gotta know considering you're one of the more intelligent legalkiwis here and you're just using the things people falsely attribute to C.U. cause most people are dumb and don't understand what the decision was actually about.
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Okay what was it about then?
 
X Prime said:
https://www.theguardian.com/law/2023/feb/21/us-supreme-court-arkansas-anti-boycott-israel-law
On the other hand...
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They don't always take every case.
introvertedobserver said:
You...do know that's not what C.U. was about and those things were decided in previous court cases, right? Like you gotta know considering you're one of the more intelligent legalkiwis here and you're just using the things people falsely attribute to C.U. cause most people are dumb and don't understand what the decision was actually about.
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This is why they overruled § 441b's restrictions on "corporate independent expenditures." Expenditures are quite literally money. The Court overruled this section of BCRA specifically because it violated the First Amendment's prohibitions on limitations on political speech. True, it never includes the express phrase "money is speech," but that's a completely reasonable view of what it ruled in relation to part of the BCRA.

I pointed out that while I'm somewhat skeptical of this (the fact that it concerned a literal movie with a political point of view is more important), it's hardly a problem compared to how wrong it would have been to prohibit an independent party from producing and distributing a movie to express their political views (regardless of whether or not it is a corporation).

My bigger problem is that by leaving other parts of the statutory system in place, they essentially edited the legislation to make it more to their liking. Sometimes you can just overrule part of a statute without interfering with the rest, but this isn't one of those cases. Instead you're left with the mangled wreckage of BCRA, rather than anything Congress passed.

In short, if they were going to overrule a critical component of it, they should have just overruled it all and let Congress fix the mess.
 
X Prime said:
I get that; I'm just saying that one seemed pretty important, but what do I know?
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The specific question at issue has had a few contradictory cases. Unfortunately it often takes a couple decades before they take up a case that's getting different treatments in different courts, so they can resolve the ultimate conflict.
 
AnOminous said:
They don't always take every case.

This is why they overruled § 441b's restrictions on "corporate independent expenditures." Expenditures are quite literally money. The Court overruled this section of BCRA specifically because it violated the First Amendment's prohibitions on limitations on political speech. True, it never includes the express phrase "money is speech," but that's a completely reasonable view of what it ruled in relation to part of the BCRA.

I pointed out that while I'm somewhat skeptical of this (the fact that it concerned a literal movie with a political point of view is more important), it's hardly a problem compared to how wrong it would have been to prohibit an independent party from producing and distributing a movie to express their political views (regardless of whether or not it is a corporation).

My bigger problem is that by leaving other parts of the statutory system in place, they essentially edited the legislation to make it more to their liking. Sometimes you can just overrule part of a statute without interfering with the rest, but this isn't one of those cases. Instead you're left with the mangled wreckage of BCRA, rather than anything Congress passed.

In short, if they were going to overrule a critical component of it, they should have just overruled it all and let Congress fix the mess.
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CU didn't "equate" money and speech (more accurate is that the expenditure of money is a necessity for quantity of speech, and government limiting expenditures on speech by necessity limits that quantity which it cannot do. No ruling has actually equated the two AFAIK). Buckley v. Valeo did, and it was then upheld 2 other times before C.U.

CU just followed that precedent (and the precedents that associations of people, including corporations, have 1st amendment protections) and found it unconstitutional to limit, specifically, expenditures from corporation's (for and non-profit) general funds for anything the FEC determined to be functionally equivalent to electioneering (political speech) which is what BCRA § 203 did.
 
Fox News airs its own late night comedy show called Gutfeld. Last night, they had Kat Timpf, one of the regulars (and I believe writers), guest hosting. She used the opening monologue to voice her support for 230 and how catastrophic its repeal could be.


I think it's important to have this aired to the boomers who watch Fox.
 
introvertedobserver said:
CU didn't "equate" money and speech (more accurate is that the expenditure of money is a necessity for quantity of speech, and government limiting expenditures on speech by necessity limits that quantity which it cannot do. No ruling has actually equated the two AFAIK). Buckley v. Valeo did, and it was then upheld 2 other times before C.U.
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It quite literally did, by following the very decision you cited. The statute overruled said nothing directly about speech but about "expenditures." Literally money. In CU, the actual prohibited activity was actually speech, but the decision very clearly stated that it was the "expenditures" language that made it facially unconstitutional, while rejecting similar facial challenges to other parts of the statute.

I could see an argument that reducing it to a three word summary like that oversimplifies it, but really, anything short of the full decision with concurrence and dissent oversimplifies it, because it's a rather complicated decision.

It does, though, very clearly equate expenditures of money with speech. It doesn't simply say that 441b is unconstitutional as applied to the Hillary movie, but that it is facially unconstitutional, that it is unconstitutional under all circumstances. Compare its treatment to the other challenged aspects of BCRA, such as the disclosure requirements. Those were upheld against the facial challenge, and left open to an as-applied challenge.

441b however is entirely overruled. (I happen to agree with this but not for the same reason.)

Would it make it better if I amended the oversimplification (which is actually the prevailing phrase used to describe the case both in legal circles and in the media) by saying it as "the independent expenditure of money in the pursuit of political goals is speech?" It's more accurate, I suppose, but it's not like the other phrasing is actually deceptive. Even with the other phrasing, I doubt someone looks at a pile of dollar bills just sitting there and says "look at it, it's speech!"
 
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AnOminous said:
It quite literally did, by following the very decision you cited. The statute overruled said nothing directly about speech but about "expenditures." Literally money. In CU, the actual prohibited activity was actually speech, but the decision very clearly stated that it was the "expenditures" language that made it facially unconstitutional, while rejecting similar facial challenges to other parts of the statute.

I could see an argument that reducing it to a three word summary like that oversimplifies it, but really, anything short of the full decision with concurrence and dissent oversimplifies it, because it's a rather complicated decision.

It does, though, very clearly equate expenditures of money with speech. It doesn't simply say that 441b is unconstitutional as applied to the Hillary movie, but that it is facially unconstitutional, that it is unconstitutional under all circumstances. Compare its treatment to the other challenged aspects of BCRA, such as the disclosure requirements. Those were upheld against the facial challenge, and left open to an as-applied challenge.

441b however is entirely overruled. (I happen to agree with this but not for the same reason.)

Would it make it better if I amended the oversimplification (which is actually the prevailing phrase used to describe the case both in legal circles and in the media) by saying it as "the independent expenditure of money in the pursuit of political goals is speech?" It's more accurate, I suppose, but it's not like the other phrasing is actually deceptive. Even with the other phrasing, I doubt someone looks at a pile of dollar bills just sitting there and says "look at it, it's speech!"
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I draw a distinction between "money is speech" and "expenditure of money for the purposes of effectuating speech is also protected since it effectuates speech".

It's, at least IMO, critically important to draw that distinction, especially when having conversations with people that oversimplify it.

You can't really counter "money isn't speech and that decision should be overturned" (because money obviously isn't speech) but you can easily counter the actual case with "if government could prohibit spending money to effectuate speech, it could ban all speech that wasn't you walking and speaking using only your mouth and/or sign language. Couldn't even take an drive to a protest."
 
introvertedobserver said:
I draw a distinction between "money is speech" and "expenditure of money for the purposes of effectuating speech is also protected since it effectuates speech".

It's, at least IMO, critically important to draw that distinction, especially when having conversations with people that oversimplify it.
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The court didn't really distinguish between using the expenditure of money specifically to create a movie or something traditionally considered speech, or it wouldn't have found the statute facially unconstitutional, but just as applied. So while funding a movie was what the case was about, it would apply to any expenditure of money by a non-candidate to push a political agenda, whether it would have previously been considered not speech under the decision it overruled, specifically Austin, which found such prohibitions constitutionally tolerable.

Don't get me wrong, it's reasonable to point out that "money is speech" is far from a complete summation of the case, but it certainly made more independent expenditure directly protected as speech. Under the interpretation the lower court made, even something like the Hillary movie was found bannable, and so would Michael Moore's documentaries, which almost invariably push a political agenda of some sort, but if it left the statute otherwise intact, the expenditure of money for things previously considered constitutionally protected would have stood.
 
My biggest issue with "money is speech" is that it gave corporate personhood way more power then it should. Jeff Bezos should have freedom of speech. Amazon however, is a creature of law and laws should govern what it does. Especially as a publicly traded company.
 
mindlessobserver said:
My biggest issue with "money is speech" is that it gave corporate personhood way more power then it should. Jeff Bezos should have freedom of speech. Amazon however, is a creature of law and laws should govern what it does. Especially as a publicly traded company.
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It was liberals mostly making this argument when the decision occurred. It's funny people on the right are most mad about it now. Frnakly, I don't think politics would be any less shitty if it didn't occur. I'd rather have absolute free speech than inventing some rules to curtail it.
 
mindlessobserver said:
Amazon however, is a creature of law and laws should govern what it does. Especially as a publicly traded company.
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Amazon is an association of people, as are all corporations and partnerships. Law creates a legal entity to encompass those associations and groups and provide some liability protection, but law is still bound by the Constitution, and those rights are retained even when one is part of a group and the group is acting on their behalf. Which is why corporations and other partnerships have rights.

It's pretty fucking important that they do, too. Especially 1st amendment rights. If they didn't, Congress could arbitrarily censor or ban any works created or distributed by them.

Virtually all movies.
Virtually all books.
Virtually all video games.
Virtually all advocacy/political/activist groups.
Kiwifarms (operated by an LLC), banned (they wouldn't even bother censoring).
Internet content in general, (all ISPs and virtually all hosting services are corporations).

And that's just the first amendment.

It is important to note that they aren't fully coequal with individual people. If it's a protection that would make no sense to effect as a group, it's usually not extended to groups, and there's stuff that just hasn't been adjudicated yet.
 
introvertedobserver said:
Amazon is an association of people, as are all corporations and partnerships. Law creates a legal entity to encompass those associations and groups and provide some liability protection, but law is still bound by the Constitution, and those rights are retained even when one is part of a group and the group is acting on their behalf. Which is why corporations and other partnerships have rights.
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I think at least Tier-1 ISPs that provide nothing but connectivity should be treated as utilities. They're used to engage in speech but have no business regulating it, any more than telephone companies or banks have the right to deny service based on political disagreements.

If there are ever limitations on access to basic communications, it should only be after actual criminal proceedings.

As for things like Facebook and Twitter, the government shouldn't be allowed to use those as a default way of communicating with government agencies. There are plenty of things from the federal to the local level that are now virtually impossible to access in any reasonable way without some kind of social media bullshit. And then you have incredibly problematic like Twitter deciding they get to forbid the literal fucking President from using a communications medium.
 
It's kind of insane to find out that govt shit was being done over those apps. During Covid there was a shit ton of hoops as a therapist we had to jump through to even use phone therapy, it took months, let alone an app or anything. The only apps most agencies allowed was doxy and when the courts took up zoom some were allowed to use that.
 
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