The Supreme Court of the United States has vacated a stay by the 5th Circuit in the NETCHOICE case.
This is important, but understanding its importance requires some explanation. So bear with me.
Netchoice is a trade association that represents major social media platforms. It filed an action against a law that prohibits social media platforms from censoring their users. Suppose Hans tweets out, "There was no Holocaust -- Hitler was a great leader and the world needs more like him." The law means Twitter can not take that down.
At some point in the life of this blog I have probably mentioned the shopping-mall cases of the early 1970s. The gist of them is that the Supreme Court does not recognize private corporations, even when they operate public spaces, as state actors. Hans has no right to hand out Nazi leaflets in the food court of a mall. Indeed, the mall's corporate owners (corporations are people) have their own free speech rights which entail the right to stop the leafleting.
As for public space, so for public virtual space. So, one would think, for twitter.
So, Netchoice against the law and has a point.
Netchoice won the first round, in the district court. The district court found that the law is unconstitutional on its face, and it barred the state of Texas from implementing it (though this bar is a provisional matter, while litigation of the particulars continues). The governor of Texas, by the way, is the amiable fellow looking out at you above.
The appellate court stayed the district court's order. This means as a double negative that the appellate court allowed Texas to implement its law, at least provisionally.
The supreme court has now vacated that stay. This means by a triple negative that the district court's order is back in effect, the law is not to be implemented. Twitter can block our Nazi.
What everyone has noticed is that the line-up of the 5-to-4 vote is, as they say in SCOTUSBLOG, "ideologically scrambled."
Two of the three usual liberals (Breyer and Sotomayor) voted the Netchoice way.They joined three of the six usual conservatives ( and so made up a majority. The other three conservatives (Justices Thomas, Alito, and Gorsuch,) voted with the other liberal, Kagan, in favor of the state of Texas.
There was no majority opinion. The conservative dissenters filed an opinion. Kagan appears to have joined with them in dissenting WITHOUT joining their opinion. Her reasoning may be procedural in nature.
For now, though, sanity prevails. I will likely have more to say about this in my customary end-of-term comments on SCOTUS.
Curiouser and curiouser. It is also curious that the religious ideology of the court is a Catholic majority. Whom we would presume to be, uh, conservative. Texas politics is conservative, isn't it? I must be missing something if I conclude the current status of this case leads to a foregone conclusion, Hans down?
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This case reminds us that even on this court, as polarized on ideological lines as any in 85 years, the voting and so the results is very imperfectly predictable. The liberal Kagan, by the way, seems to have voted as she did largely for procedural reasons, as part of the continuing argument over a "shadow docket." She would almost certainly vote with the majority here were the case properly briefed and argued. But your question is why the three conservatives who voted with Breyer and Sotomayor this time, to create the majority did so.
DeleteThere is no majority OPINION here (itself a symptom of the problems with the shadow docket) so there is no "official" account of the majority's reasoning. What one can say, though, is that those conservatives, Kavanaugh, Barrett, and Roberts, likely responded to their own understanding of the shopping mall cases I mentioned above.
It is worth remembering that at the time, in the early 1970s, it was considered a "leftist" position to hold that shopping malls can be required to allow free speech in their food court. From Hans the Holocaust denier or from labor union activists protesting the union-busting policies of The Gap or from whomever. It was the rightist position that the first amendment doesn't limit, and in fact empowers, the decisions of a private corporation in such a matter. "Keep those damned union activists out of the mall!!!"
In our own time, 'the worm has turned.' The rightists, especially in Texas, have persuaded themselves that Big Tech is against them, and so it uses the banner of free speech to bring Big Tech to heel. This is why they were so thrilled when it looked like Elon Musk was going to take over Twitter, and was going to run it as one of them. (THAT balloon seems to have popped, but we'll leave that aside.)
So now, to put things very simply, the 'left' (really the center, in broader terms -- there is no William O. Douglas style leftist in the Marble Temple) has appropriated the old shopping mall cases. This is key to the fact that the 'right' on the court has split. Split right down the middle. Three of them are still working on the basis of how their heroes saw the issue in the 1970s. We get to keep those damned union activists out of the mall! though they does mean Dorsey gets to block Hans on twitter. The other three have thrown that ancient history aside to fight the fight of today.
Of course I hope we see more of this sort of split. What liberty does NOT need right now is for that block of six to stay together.
I have hazarded a distinction that will likely not stand. I don't mind. Here it is: desocialization of homo sapiens.
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