Lessons in Law 6

Dec 2020.

Bolshevik Control

I must stay on the court in order to prevent the Bolsheviki from getting control.” Chief Justice William Howard Taft, 1929

It must have been no small peril as the Chief Justice could utter such words.

ii

On the other hand there are those who trivialize the matter using the phrase “red scare,” blaming people such as Chief Justice Taft for irrationality.

iii

The record of Communist parties’ participation in coalition governments in European countries (like France) remains unscrutinized. What you’ll find is their consistent voting for the curtailment of fundamental freedoms.

iv

In June 1919 the Overman Committee of the U.S. Senate concluded that Communism in Russia was “a reign of terror unparalleled in the history of modern civilization.

v

Since 2011, the United States National Aeronautics and Space Administration (NASA) has excluded the Chinese government and China-affiliated organisations from its activities, including using funds to host Chinese visitors at NASA facilities.” (Wkpd: China exclusion policy of NASA)

*

In 1943 the Chinese Exclusion Repeal Act of 1943, or Magnuson Act, repealed the 1882 Chinese Exclusion Act, allowing for an annual quota of 105 Chinese immigrants, at the same time maintaining the ban against ownership of property and businesses by ethnic Chinese.

*

For those who think hate speech is unprotected, please read Snyder v. Phelps, 562 U.S. 443 (2011). The Supreme Court held that the WBC [Westboro Baptist Church]’s hateful picketing was protected speech. And Wikipedia correctly cites me as the source of the protection. ([a Twitter user named] The First Amendment)

“Hate speech” is a name found by those willing to shield group lobbying from people’s scrutiny. To those who’d retort that using the n-word and other such words isn’t “scrutinizing group lobbying,” I have this to say: “One man’s vulgarity is another’s lyric.” (Justice John Marshall Harlan)

*

Les émissions littéraires et les écrivains qui se rendent sur ces plateaux sont à la littérature ce que la télé-réalité est à la réalité : de la « télé-littérature ».

*

En France nous avons eu des ministres communistes et nous avons toujours des parlementaires communistes mais demander la même liberté d’expression qu’aux États-Unis est impensable.

*

Invasive Moderation (Part 3)
The Corporate Frankenstein

For Part 1 read here, for Part 2 here.

I

Twitter is going wild with their flags, trying hard to suppress even the truth. Just shows how dangerous they are, purposely stifling free speech. Very dangerous for our Country. Does Congress know that this is how Communism starts? Cancel Culture at its worst. (Pres. Donald Trump, Dec 24, 2020)

Twitter’s flags are Twitter’s free speech. But sure go with “free speech is how communism starts” and see how far that gets you. (The First Amendment)

As a few tech companies today have the power to stifle the “free flow of information and ideas” that the First Amendment’s aim is to ensure, to do nothing about it is to make fun of the Amendment rather than to pay it due respect.

To compare Twitter’s policy with an individual’s speech is bogus. A company follows a predefined corporate purpose. At best its speech should be construed as “commercial speech,” with limited protection only.

(Nota Bene: As in the next tweets I speak of the political speech of corporations, it should be clear to you that the statement here is about what corporations are in essentia according to me, like the “End Corporate Personhood!” message on the placard there [Middle Tennessee State University’s First Amendment Encyclopedia: Corporate Speech].)

Commercial speech has only limited protection: “For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading.” (Central Hudson Central Hudson Gas & Electric Corp. v. Public Service Commission [1980]). And in the earlier state of affairs commercial speech wasn’t protected by the First Amendment at all: see Valentine v. Chrestensen (1942). – An individual’s speech isn’t subject to these conditions.

As to corporations’ so-called “political speech,” since Citizens United v. Federal Election Commission (2010) it gets broad protection but the decision deals with “political speech in the form of contributions and expenditures on behalf of candidates and political issues,” not in the form of internet moderation affecting the free flow of information and ideas. Twitter Inc. has the First Amendment right to contribute financially to the campaign trail of a candidate, that’s all, there’s nothing about First Amendment protection for flagging other candidates’ tweets in the bargain.

Next time I’ll comment on Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza (1968): “Logan dealt with right to use private property as ‘equivalent’ of public space.

ii

A corporation isn’t the government. The First Am. is applicable against the government or private entities acting under color of state law ONLY. And Twitter ain’t that. (Ava)

As the First Amendment cannot ensure the free flow of information and ideas against private encroachments, a statute is needed. I am arguing that that statute will be upheld against the private companies’ claim that it violates their First Amendment right.

Indeed, corporate speech has not as strong a status as citizens’ speech, all this ultimately deriving from the common law, where property is no source of absolute discretionary power.

The Supreme Court of the United States has to balance on one hand the free marketplace of ideas, which a statute will maintain, and on the other hand the rights of trustlike corporations, which a statute will regulate for the good of the commonwealth just as numerous statutes do already.

Corporate speech is twofold: commercial and political. Conceding that corporations’ political speech is equally protected (since Citizens United), that’s not the case of their commercial speech. This alone enables one to say that corporations have less First Amendment rights than individuals. => 1>.5+.2

But wait… how can you argue with… MATHEMATICS!??!?! (Allen)

Algebra is as good a form of logical thinking as another.

At least according to Bertrand Russell.

But a true algebraic formula here would be: 1>.5+x 0<x<.5 or 1>1/2+x 0<x<1/2

Given different >levels< of scrutiny by courts, one could easily translate the whole thing into algebraic formulae.

iii

Because of Citizens United, courts will apply strict scrutiny on the bill I envision (as moderation by internet platforms such as Twitter would be deemed corporate political rather than commercial speech, and so receive full rather than limited protection). Precisely! I’m arguing that in any case the compelling interest called for by strict scrutiny exists, as it is about guaranteeing the free flow of information and ideas.

The First Amendment is a means to an end: the free flow. When people complain about private platforms not respecting the First Amendment, technically they’re wrong –correct– because they mistake the means for the end but in fact they are complaining about impediments to the flow.

Those who complain about platform moderation invoking the First Amendment mistake the means for the end but those who deny them the right to complain make the same mistake. It’s 1A for the sake of it; that is called fetish worship.

iv

Commercial speech is speech that has a commercial purpose. Even an individual can produce commercial speech, and if so, is also subject to government regulations on commercial speech. i.e. commercial speech != [different from] speech by corporations. (Bob)

The difference is that there’s no corporation without commercial speech, without a part of it devoted to that sort of speech that was not even considered to be speech until the 1970s.

Think about it : “corporate-political-speech.” Where until Virginia State Pharmacy Board v. Virginia Citizens Consumer Council (1976) corporations’ commercial speech wasn’t even considered to be speech at all!

The McConnell decision [McConnell v. Federal Election Commission (2003)] largely rested on Austin v. Michigan Chamber of Commerce (1990), which permitted bans on corporate speech.” (From comment on Citizens United v. Federal Election Commission [2010] in John R. Vile, Essential Supreme Court Decisions, 2018).

For 20 years corporate political speech was no speech at all in the United States.

The Austin decision identified ‘an antidistortion interest’ in limiting political speech based on an attempt to prevent the effects of accumulated wealth.” That was the rationale.

Justice Stevens’s dissent on Citizens United is brilliant. Quotes (J. R. Vile 2018):

Restrictions on corporate expenditures date back to the Tillman Act of 1907. … The decision in Austin has not shown itself to be as flawed as the majority suggests.

The Court has long approved ‘the authority of legislatures to enact viewpoint-neutral regulations based on content and identity.’

The Framers had a much narrower view of the rights of corporations than the majority, and the original understanding has been substantiated by the history of regulation in this area.

The Constitution does, in fact, permit numerous ‘restrictions on the speech of some in order to prevent a few from drowning out the many.

The laws at issue are legitimate measures to prevent corruption and to protect shareholders from expenditures they do not support.

They [corporations] are not themselves members of ‘We the People’ by whom and for whom our Constitution was established.

Just like about 40 years ago commercial speech emerged as speech, 30 years later, that is ten years ago, corporate political speech became speech. For what purposes have these sinister Frankenstein creatures been invented?

II
Section 230

The (1) of Section 230 seems intended to prevent its (2), it protects providers from liability for content on their platforms, so providers have no reason to remove content –if they’re for free speech– as nothing can happen to them for content, 230(1) speaking.

I grant you immunity for any sort of content (1) and, whereas you should be content with that, I also grant you immunity for (bona fide) content removal (2). It’s called to have your cake and eat it too. Completely unbalanced. As they’re free to remove content, why can’t I hold them responsible for content they don’t remove?

You’re perfectly free to sue the person posting the offending tweet. (J_Rex)

Wouldn’t suing an anonymous user depend on Twitter’s will to disclose information about the user?

If you don’t like Twitter’s or Facebook’s rules you are perfectly free to create your own platform with whatever idiosyncratic rules you want. In fact, there are such platforms, notably Parler. (J_Rex)

I’m free to leave but at a cost (among other things in terms of audience) and Twitter, which, as one of the first movers, has an undue trustlike position on the market due to its millions of users, should partake in the cost. If such laissez-faire views were accepted, Twitter could staff its moderation office with lunatics and that would be just as good. It can and perhaps it does.

*

Advocacy of Illegal Conduct Is Lawful

In a previous lesson I told Diane, who had said “no speech is protected if it incites violence,” that she was wrong. She was wrong, but even competent persons make the same error: “These cases illustrate that the First Amendment applies to all groups so long as their intent is not to intimidate or incite violence.” (First Amendment Encyclopedia: American Nazi Party and Related Groups x)

When such conclusion isn’t from lack of knowledge, it’s lack of logical thinking. “Incite violence” isn’t the same as “incite imminent lawless action” (including violence) and therefore it is lawful to incite non-imminent violence.

In NAACP v. Claiborne Hardware Co. (1982), the Supreme Court ruled that an economic boycott constitutes a form of constitutionally protected expression akin to traditional means of communication, such as speaking and writing, even if violence is threatened as a means of achieving group goals.” (First Amendment Encyclopedia : Boycotts)

I think the courts have held (properly) that there is a tight rope to be walked between allowing someone who is simply pissed off to vent their anger and someone who is actually intending harm. (Diane)

I’m sorry to disagree again. People who “threaten violence,” like in the Clairborne decision, “actually intend harm” (at least conditionally: if… then) and yet it is protected speech.

But Diane is probably thinking of the “true threat” doctrine. So I add that except for the unusual 2003 decision on cross burning that can be a true threat, generally speaking in case law a threat has to be kind of very clear, present, imminent, lawless and all to be (a bit) “true.”

If the courts want to be consistent with Virginia v. Black (2003) on cross burning and the vague notion of intimidation, they will have to smash down the very doctrine of true threat, even Brandenburg v. Ohio (on lawless imminent action) and the whole edifice of First Amendment law. The Supreme Court made a mistake.

ii

The true meaning of the American First Amendement, its truly distinctive nature lie in the words “Advocacy of illegal conduct.” This distinctly American right is what makes all other peoples beside conscious Americans look like phantoms or trembling mice keeping close to the wall.

*

In Cleveland v. United States (1946), “Justice Francis W. Murphy dissented, largely based on anthropological analysis, arguing that polygamy differed from promiscuity.” #Mormon

*

Porn often promotes “plots” based on racism, incest, rape, sexism, or violence, and then says these themes are okay in porn because they’re “fantasy.” Why are we sexualizing scenarios that are never acceptable in reality? (FTND: Fight the New Drug)

On a First Amendment Encyclopedia I read of criticism of porn films… in the sense of literary criticism. So, as you talk of “plots,” that alone could be construed as “redeeming value” (which protects some explicit material from prosecution for obscenity). As there’s a plot, that’s a work of the mind, a work of art.

But let me ask, then. What if someone cuts up the sex scenes from the film and uploads them piecemeal? The public will inevitably miss the dialogues, the acting, the story, the plot, all the redeeming value, they will only be… watching porn.

*

On a marketplace there must be antitrust laws. What are the antitrust laws on the “marketplace of ideas”?

*

The marketplace of ideas is about speech and counterspeech but some are defining it as speech and speech-canceling.

2 comments

  1. florentboucharel

    « But wait… how can you argue with… MATHEMATICS!??!?! (Allen) »

    Obviously his ponderous emphasis on his surprise by my contender, this Allen, serves to mask the fact that he has never opened a law book, otherwise the algebraic formula B=PL known as Judge Learned Hand rule would be familiar to him.

  2. florentboucharel

    « Next time I’ll comment on Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza (1968): “Logan dealt with right to use private property as ‘equivalent’ of public space.” »

    i

    Quotes from Ronald J. Krotoszynski, Jr., The Disappearing First Amendment (Cambridge University Press, 2019):

    « The Warren Court extended First Amendment rights of access to private property if particular privately owned property served as an essential locus of democratic deliberation – the contemporary equivalent of the municipal park at issue in Hague. Accordingly, even if a skeptical reader remains unconvinced by my claim that the Warren Court conceived of the First Amendment as a source of both positive and negative rights, its approach to mandating access to private property for First Amendment activity provides further, and quite striking, support for this argument. » (p.47)

    « Logan Valley arguably has new relevance in the age of the internet. … [t]he reasoning and constitutional logic of Logan Valley would support the recognition and enforcement of First Amendment easements that facilitate access to these social media platforms and search engines on a nondiscriminatory basis. Professor Michael Seidman has argued persuasively that state action decisions, such as Marsh v. Alabama and Terry v. Adams, reflect the view that “[a] private entity might be engaged in a public function when it is able to exert extraordinary coercive power comparable to state power over individuals.” Alternatively, he posits that these decisions might be understood to mean that “an entity might be engaged in a ‘public function’ when it involuntarily opens itself to the public in a fashion that made its claims to immunity from government regulation implausible.” (48)

    « [i]n 1968, in the era of post-Brown white flight to suburbia, the privately owned shopping mall had come to completely eclipse the publicly owned town square. Accordingly, the Warren Court held that suburban shopping mall owners had to make such properties available for First Amendment activity – whether or not they wished to do so. Today, shopping centers are far less relevant to the process of democratic deliberation; just as they displaced the town square, they have in turn displaced themselves as a central locus for community gatherings and collective activity. Instead, some academics argue that “[g]rass roots campaigns are now carried out on social media,” which constitute “the new poor man’s medium.” » (49)

    « Justice Thurgood Marshall’s approach in Logan Valley takes seriously the idea that democratic engagement is an essential condition for democracy to function – no less central or important than the act of voting itself – and if a private entity controls a forum essential to the process of democratic deliberation, then the First Amendment requires an easement to ensure that it is open to all would-be speakers on equal terms. » (51)

    ii

    However, Krotoszynski then goes on talking of « similar arguments » by a « Professor Cass Sunstein, » which arguments, far from being similar, are in fact the opposite of what derives from Logan Valley.

    I want to stress this because it shows how some issues are muddled. Indeed, Sunstein’s argument against the internet is not that a few private owners of platforms can impose speech limitations on millions of users but that it allows « informational self-isolation, » that is, the problem has nothing to do with curtailing by the few of the freedoms of the many but with individuals exercizing their right to pick information, that is, the problem is individual liberty itself, whereas based on Logan Valley we want more individual liberty. The two opinions are not at all similar, beyond the marginally relevant fact that they both purport to stress problems with current internet functioning. On the major issue of individual freedom they are poles apart.

    I believe this muddled perception is related to Krotoszynski’s erroneous views on European legal systems, which I find laid down in such passages as the following:

    « In the United States, we maintain a strong commitment to the theoretical equality of all speakers, and all speech, but contemporary First Amendment doctrine ignores the gross disparities that exist in practice between those with the ability to use money to advance an agenda and those without it. In other places, such as much of Europe, a similar commitment to equality exists, but it is operationalized to advance the actual equality of speakers on the ground, rather than as a merely theoretical commitment to formal equality of opportunity. Substantive equality, not procedural equality, is what counts. Thus, in France and Germany etc. » (p.5)

    Even agreeing that the First Amendment has been made to apply too much with mere procedural equality in sight, examples from France and Germany in this field must be kept inside the trash can. As Krotozynski acknowledges that « US citizens enjoy the broadest, and deepest protection of freedom of expression in the world » (p.15), it should have come to his mind that there must be something wrong, therefore, with those European systems that purportedly « operationalize » substantive rather than merely procedural equality. In France as well as Germany, the government operationalizes substantive equality among some plurality of ideas and parties which it has not labeled as enemies of the state beforehand, that is, everybody except a bunch of idiots. The government affords substantive equality to a plurality that is nothing but one and the same sophistry under various guises. It is each and every individual’s sacred right to prefer « informational self-isolation » to a plurality of idiots imposed by the state – or private platform owners, for that matter.

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