Daily Archives: 30 November 2020

Tech Company Protections

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Tech companies, primarily Facebook, Twitter, and Alphabet, get nearly blanket immunity from responsibility for the content that’s published on their outlets. Section 230 of the Communications Decency Act, which was instrumental to their initial success, gives them that broad immunity, based on those companies’ initial status as agnostic pipelines that merely provided a place for disparate commentary to be promulgated.

Protected monopolies (vis., pre-breakup Ma Bell) gave government-sanctioned special, protective, treatment to selected companies in order to facilitate their initial success. There came a time when that protection no longer was warranted, and the protection was eliminated.

So it is with Facebook, Twitter, and Alphabet. Their special, protective, treatment is no longer warranted, and it needs to be withdrawn. Those companies are no longer agnostic pipelines; they’ve taken—increasingly over the last few years—the role of controlling (some might say censoring) the content they allow on their platforms. They block some content, limit access to other content, even delete content after promulgation. They’re no longer agnostic; they limit discussions to directions that satisfy their management teams’ approval. They’ve become publishers of content.

Tech companies acknowledge they need to improve their content moderation practices, but they deny negligence or political bias.

These tech companies cannot be trusted to “improve their content moderation practices,” not when they issue such openly ridiculous denials. Those denials demonstrate either those companies’ management teams’ dishonesty or those teams’ inability to recognize their own negligence or bias.

Indeed, the very existence of “content moderation practices” beyond that required by the FCC—which center on barring active incitements to violence—demonstrates the teams’ dishonesty or inability to recognize their own bias.

Too Much Deference

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On Wednesday last, the Supreme Court enjoined Governor Andrew Cuomo’s (D) New York State administration from enforcing its gathering rule that had the effect of targeting, particularly, religious institutions and gatherings.

Much has been made of the ruling, Justice Neil Gorsuch’s concurring opinion, and Chief Justice John Roberts’ dissenting opinion.

Here’s the pertinent part of the ruling’s opening paragraph:

Respondent is enjoined from enforcing Executive Order 202.68’s 10- and 25-person occupancy limits on applicant pending disposition of the appeal in the United States Court of Appeals for the Second Circuit and disposition of the petition for a writ of certiorari, if such writ is timely sought.

Thus, the Court granted, it turns out, only temporary injunctive relief pending rulings in the case itself as that case wends its way through the appellate process.

The temporary nature of the ruling, in turn, drove (I suspect) Gorsuch’s separate concurrence. Here’s the opening sentence of his opinion:

Government is not free to disregard the First Amendment in times of crisis.

He bookended that opening with this conclusion:

It is time—past time—to make plain that, while the pandemic poses many grave challenges, there is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues, and mosques.

That’s a clear foot stomp to the lower courts, and especially to the Second Circuit in the present case, about the sanctity and the supremacy of our Constitution.

On the other hand, here’s the key part of Roberts’ dissent:

[I]t is a significant matter to override determinations made by public health officials concerning what is necessary for public safety in the midst of a deadly pandemic.

Justice Sonya Sotomayor went further:

Justices of this Court play a deadly game in second guessing the expert judgment of health officials about the environments in which a contagious virus, now infecting a million Americans each week, spreads most easily.

No, the deadly game is subordinating our courts to other parts of our government so easily and routinely. It’s a far more significant matter—a matter of national political health—to defer to public health officials on the basis of their public health official-ness at the expense of foundational (or any other) individual liberties that are the core and basis of our nation’s existence.

It’s a far more significant matter—a matter of national health writ large—for a coequal branch of our Federal government to blithely subordinate itself to another branch of our Federal government, and it’s even worse for that coequal branch meekly to subordinate itself to an inferior division of that other branch.

It is time—past time—to make plain that Article III courts, from the Supreme Court on down, can no longer consider themselves subordinate formations in our tripartite form of federal governance.

The Court’s ruling can be read here.