• Viewpoint Discrimination May Bring 1A to Social Media

    June 17, 2022 // 2 Comments »

    Later this year it is possible — not likely, but just possible — the Supreme Court might vote to take away social media platforms like Twitter and Facebook’s right to censor content. This would have the effect of granting some level of First Amendment protection, now unavailable, to conservative users of those platforms.

    The potential for change hinges on a law struck down by lower courts, Netchoice v. Paxton, which challenges Texas law HB 20. That law addresses social media companies with more than 50 million active users in the U.S., like Twitter, YouTube, and Facebook. It prohibits these companies from engaging in content moderation by declaring that they may not censor posts on the basis of viewpoint. If a platform does remove any content, it must notify the user and let them appeal the decision. These users can sue the company for imposing “viewpoint discrimination.” HB 20 also bars platforms from placing warning labels on users’ posts to inform viewers that they contain objectionable content. It imposes disclosure requirements, including a biannual transparency report.

    The law was shut down by lower courts, reinstated, then handed off to the Supreme Court as a shadow docket case (an informal term for the use of summary decisions by the Supreme Court without full oral argument) to decide. The Court refused to reinstate the law at this time, but with significant dissent. The case will likely be heard in full by the Court in the fall. The conservatives will get another try.

    Twitter, et al, acting collectively through trade associations, chose an interesting defense, claiming not simply that the 1A applies only to government censors (the standard defense to prevent 1A rights from applying to social media) but claiming their content moderation constitutes First Amendment–protected speech in and of itself. In other words, censoring stuff that passes through their platforms constitutes a 1A protected act by Twitter, and thus HB 20 violates Twitter’s 1A rights. The platforms argued laws like HB 20 constitute the government blocking Twitter’s free speech right to prevent its users from exercising their free speech rights, as censorship is an act of free speech.

    Twitter and its allies went on to argue to the Supreme Court “Social media platforms are internet websites that exercise editorial discretion over what content they disseminate and how such content is displayed to users.” That seems to rub right against Section 230 of the Communications Decency Act which protected social media platforms from the 1A by claiming they aren’t really “publishers” after all, just something akin to a conduit through which stuff (your tweets) flows.

    As such, the Communications Decency Act argues, they are closer to common carriers, like the phone company, who could care less what you talk about in your call to Aunt Josie. But with the common carrier argument coming closer and closer to implying social media has no right to censor (in other words, they can’t have it both ways. They can’t not be responsible for defamatory material on their sites and they can’t claim immunity from the First Amendment stopping them more censoring certain viewpoints. Imagine the phone company saying they are not responsible for you calling Aunt Josie a hag but they also want to censor your conversation for using the “hate speech” term “hag.” In other other words, Twitter is either a publisher and like the New York Times and can exercise editorial discretion/censor but is responsible for what it publishes or it is not and like the phone company it cannot censor but it is not responsible for its own content.

    In his dissent to the Court’s decision to stay HB 20, Justice Alito (joined by Justices Thomas and Gorsuch; Justice Kagan also dissented but did not join Alito’s opinion or write her own), notes the indecision by Twitter, et al, on whether they are publishers, but says their desire to censor (i.e., to have 1A rights of their own) means they must be publishers. But if they want to insist they are not publishers, they are common carriers and do not have a right to censor. Pick one.

    Alito is well aware of the recent history of social media censorship, which has egregiously sought to block and cancel nearly-exclusively right-of-center persons. Facebook and others like it have become the censors the Founding Fathers especially feared, as one political party benefits disproportionately. Donald Trump was driven off social media as a sitting president. What should have been one of the biggest stories of the 2020 election, the Hunter Biden laptop tale, was disappeared to favor Democratic candidate Joe Biden. Social commentators like Alex Jones and Scott Horton were banned. Marjorie Taylor Greene was suspended. Of all the Members of the House banned from social media, every single one is a Republican. Size matters; banning the head of the Republican party, Donald Trump, and banning a local Democratic councilman in Iowa are not 1:1. What is being censored is not content per se (a photo, a news story) but whole points of view, in this case conservative thought itself.

    Viewpoint discrimination is particularly disfavored by the courts. When a censor engages in content discrimination, he is restricting speech on a given subject matter. When he engages in viewpoint discrimination, he is singling out a particular opinion or perspective on that subject matter for treatment unlike that given to other viewpoints. For example, if the government banned all speech on abortion, it would be a content-based regulation. But if the the government banned only speech that criticized abortion, it would be a viewpoint-based. Because the government is essentially taking sides in a debate when it engages in viewpoint discrimination and shutting down the marketplace of ideas which is the whole dang point of free speech, the Supreme Court has held viewpoint-based restrictions to be especially offensive to the First Amendment. Such restrictions are treated as presumptively unconstitutional.

    So when HB 20 comes before the Court as a full case with oral arguments in the fall, the lines are drawn. Twitter, must et al, appear ready to admit they are “publishers” (and likely shed the protections of Section 230) to retain a publisher’s right under the First Amendment to decide what to publish (and conversely what to censor.) Alito seems to be suggesting if that is the argument, then yes, let the First Amendment apply but it must apply to Twitter, et al, in its entirety. Social media cannot claim a constitutional right to censor as a publisher and then abuse that right by engaging in viewpoint discrimination. Social media may have boxed themselves into a corner where they are constitutionally required to present both sides of an issue to preserve their right to censor one side more than the other.

    So what are you, Twitter? You can no longer operate behind the illusion of democracy. Careful what you choose… are you a dumb pipe down which information flows and therefore cannot censor? Or are you a publisher with 1A rights which you use to stomp out one particular viewpoint?

    If the latter, Texas HB 20 may be the needed relief to protect the modern town square and the Supreme Court may approve its constitutionality this autumn.

     

     

     

     

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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Democracy

    School Shootings: It’s Not the Guns, It’s Kids Killing Kids

    June 3, 2022 // 4 Comments »

    Americans ages 18 to 20 account for only four percent of the population but 17 percent of murders. School shootings and their equivalent at Walmarts get the most attention. The problem is not just the guns. It is the young men who wield them. That means any possible solution rests with the shooter, not the firearm.

    There’s a pattern inside those sordid statistics, with some 70% of school shootings since 1999 have been carried out by people under 18. The median age of school shooters is 16. It’s kids shooting kids, whether because they are left out, bullied, teased, or angry at some slight or teacher’s offense, it is kids killing kids. Since these killings tend to be “local,” typically shooter and the dead share a racial and/or social-economic background, leaving “white supremacy” as a cause in the dustbin alongside the 1990s blaming “heavy metal” and Satanism. There have been at least 554 school shooting victims, with at least 311,000 children exposed to gun violence at school in the U.S. since the Y-in-the-road game changing Columbine High School massacre, spread across 331 schools. The frequency of shootings has increased, with a surge of 34 incidents in 2021, the highest in any year since 1999.

    Since it’s not the guns per se but young men who are to blame, more traditional gun control is unlikely to make much of a difference. Already under the Federal Gun Control Act (GCA), shotguns and rifles, and ammunition for shotguns or rifles may be sold only to individuals 18 years of age or older. All other firearms can be sold only to individuals 21 years of age or older. Licensed sellers are bound by the minimum age requirements established by the GCA regardless of state or local law. However, if state law or local ordinances establish a higher minimum age, the licensee must observe the higher age requirement.

    Background checks vary in quality from state to state but generally seek to prohibit sales for reasons such as a history of domestic abuse or violent felony convictions, crimes unlikely to snare the shooters just out of high school. No background check is going to catch someone seething with rage over race or his grandmother. Checks also are at the time of purchase and gun ownership can be forever. There is the private transfer loophole that bypasses most background checks, but no evidence that young mass killers seek out this method of gun purchase.
    There is also the Columbine divide that somehow factors in to kids killing kids. Pre-Columbine America saw school shootings number only approximately 300 instances in 150 years. Post-Columbine shootings number 331 in only 23 years. Something big is very wrong in America and our kids are not alright. Add in drug use and overdose deaths, and teen suicides (many involving guns; suicide is the third greatest cause of teen death, with homicide in the number two position), and you have more than a crisis, you have a nightmare.
    Though the Columbine killers had few friends, it is doubtful no one (including parents and siblings) had no idea about the thoughts running through their heads. Later this would all be blamed on the then-new shooting games like DOOM (a “murder” simulator) and heavy metal music. But it seems much less a surface problem and more something deeper and thus ironically more visible. In other words, in Columbine and likely in many of the other 331 modern-era school shooting, somebody should have seen it coming.
    Therein lies several potential solutions. Lessening gun access in specific, targeted ways may help, such as raising the Federal age for long guns to age 21 or older. Provide tougher penalties for anyone who illegally sells guns to those under age, and for adults/parents who do not secure their guns. Such measures are statistically supported, do not affect most current gun owners, and simply require the sacrifice by legitimate young hunters of safely using dad’s old rifle another year.
    But real change will require enhanced red flag laws, laws which enlist parents, gun sales people, teachers, and peers in spotting students who should not have ready access to firearms. A red flag law allows people to petition a state court for the temporary removal of firearms from a person who may present a danger themselves or others. A judge makes the final determination. Such laws exist in 19 states and D.C. at present (14 states of those states adopted red flag gun laws after the mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida) with considerable variation. One of the most significant variations is who may petition a court to take someone’s guns away. Every state currently allows law enforcement to do so, but California is the only one which includes family members. None of the laws in place allow teachers, clergy, doctors, coworkers, or school peers, people who may well know a young man’s intent best, to petition. A Federal law which standardizes such criteria is badly needed.
    Opposition to red flag laws tends to fall on standard grounds, specifically that not all states allow the gun holder full due process at his hearing (easily remedied by a Federal law that does) and the generic concern about the government having the ability to take a gun anyway from anyone. Yet gun confiscation via a hearing, though likely needing a Supreme Court decision of its own for clarity, appears to be an example of presumptively lawful regulatory measures (such as regulating concealed weapons, prohibiting possession of firearms by felons, etc.) already permissible under Heller v. District of Columbia. Basic red flag laws are judicially sound, and have, for example, been used in Florida nearly 6,000 times since 2018 and survived a state Supreme Court challenge there. And Florida has had no school shootings since the law went into effect. New York’s current red flag law, had it been properly implemented, could have stopped the grocery store shooter.
    School shootings almost always involve a delineable type of shooter: 16-18, male, loner. Red flag laws are designed to take guns away from people before they commit crimes, and have been legally tested. As a potential national-level solution they do not restrict gun ownership among most adults, and barely open the Pandora’s Box of the Second Amendment. They are as apolitical as anything to do with guns in America can be (and are supported by 72 percent of Americans. Donald Trump has backed red flag laws.) In the search for answers following the latest school shooting, a Federal red flag law is worth a… shot.

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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Democracy

    Texas Academics Told to Avoid ‘Sensitive Topics’ to Prevent Angering Armed Students

    February 26, 2016 // 45 Comments »

    cowboys



    Here’s another swanky benefit of our out-of-control gun culture: university professors should be aware that their students might shoot them.


    The Texas state legislature voted last year to allow students to carry concealed handguns into classrooms, dorms, just about anywhere on campus, a practice with roots to when Socrates taught Aristotle.

    If students packing seems like a bad idea to you, imagine how you’d feel if you were a professor. There’s nothing quite like the free exchange of ideas when everyone is armed in math class.

    How about armed Texans in classes that teach Arabic, or Islamic Studies, or Hebrew, or evolution? Some good times ahead. The academic chilling effect seems pretty obvious. One wonders how many brilliant teachers will move to campuses in less-armed states, and how many researchers will avoid Texas for creating an academic environment incompatible with academics. It is possible that overall Texas will become even dumber.

    Public universities in Texas are grappling with how to implement the measure, which gives some flexibility to the institution. For example, the University of Texas at Austin will not allow guns in dorms but will allow them in classrooms, because somehow that makes sense. Libraries and cafeterias,maybe.

    Sporting events? Suck on hot lead, visiting team!



    If having armed students seems like it would pretty significantly alter the college classroom, you need look no further than the University of Houston. The university’s faculty senate held a meeting recently with a Powerpoint presentation aimed at assisting faculty in adapting to the new gun-toting normal. Here’s a slide:





    The slide stops just short of advising profs to wear kevlar to class, or to lecture from behind bullet proof glass or, in the language of Texans, simply pack bigger guns. Like the faculty parking that sets them aside from the kids, maybe teachers could be issued fully automatic weapons, while the kids were limited to semi-auto only, assuming that does not violate the only Amendment in the Bill of Rights Texans seem to be aware of. Grad students could get special firearms training to better prepare them for a life in academia. The concept of defending one’s thesis in front of a faculty committee takes on a whole new meaning.


    Wacky comparison: The military does not allow open-carry on most bases outside of war zones, and during training does not allow guns in barracks and classrooms (outside of weapons training.) Even in war zones, every soldier has received extensive training in his/her weapons, and is punished swiftly for safety violations. In some ways, you could say Afghanistan may be safer than Houston. Yi hah!



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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Democracy

    Freedumb Update: Texas Lawmaker Says Muslims Should Pledge Allegiance to U.S.

    February 3, 2015 // 14 Comments »

    molly



    …And then there are those days that challenge even a First Amendment/Free Speech absolutist like me.

    Freedom Fighter and uneducated state legislator Molly White (could her last name be any more appropriate?), pictured, couldn’t be in Austin, Texas to celebrate Texas Muslim Capitol Day. But she left instructions (on her Facebook page!) for the staff in her Capitol office on how to handle Muslim visitors, including asking them to declare allegiance to the United States:



    “I did leave an Israeli flag on the reception desk in my office with instructions to staff to ask representatives from the Muslim community to renounce Islamic terrorist groups and publicly announce allegiance to America and our laws,” she posted on Facebook. “We will see how long they stay in my office.”

    Texas Muslim Capitol Day

    Texas Muslim Capitol Day, which began in 2003, is organized by the Texas chapter of the Council on American-Islamic Relations and brings members of Muslim communities in Houston, Dallas and other areas of the state to the Capitol to learn about the political process and meet state lawmakers. It is unclear how many risk their lives to actually attend.

    Oh, wait, we know: about 100 Muslims, mostly children brought on a school trip, showed up. Though as we know Representative Molly White didn’t drop by to hiss at the kids, they were met by 25 alleged adults outside the Capitol holding signs saying “Radical Islam is the New Nazi” and “Go Home and Take Obama With You.”

    As a small group of Muslim group held a press conference on the steps of the Capitol, one of the protesters grabbed the microphone and shouted “Islam will never dominate the United States and by the grace of God, it will never dominate Texas.” As the Muslims sang “The Star-Spangled Banner,” protesters yelled “Islam is a lie!” and “No Sharia here!”

    Neither the Texas Governor nor the Lieutenant Governor had any comment on the matter.

    Good Golly Miss Molly!

    But not Molly White. She doubled-down with a follow-up Facebook post: “I do not apologize for my comments. If you love America, obey our laws and condemn Islamic terrorism, then I embrace you as a fellow American. If not, then I do not.” She later released a third statement that did not appear intentionally ironic, saying she welcomes “all of my constituents who would like to come and visit our office in the Texas State Capitol.”

    Molly’s recent statements are at least consistent with her record of hate. She had previously explained “Remember, in the Koran, it is OK to lie for the purpose of advancing Islam. Texans must never allow fringe groups of people to come here so that they can advance their own culture instead of becoming an American and assimilating into the American way of life. That, I can assure is not the intent of most Muslims who move to America.”

    As this article goes online, Texas unfortunately remains part of the United States. And yes, yes, comments people, I know parts of Austin are cool and have great music and chill bars.



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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Democracy