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The transcript of the oral argument in Citizens United gets a little lengthy for a full blockquote of the relevant section here, but this summary really does get at the essense of how it went down:
[In the full transcript, other justices piled on to really pin him down that he really was actually claiming the ability to ban such books.]
There's a saying that you usually can't win a case in the Supreme Court based on oral arguments, but you can lose one. There are many details (e.g., the procedural posture was inherently weird in that they asked for a reargument) that I will gloss over, but this sure seemed like one of those moments where the government may have gone a long way to losing a case based on their capacious response in oral arguments. I just finished listening to the social media cases this morning, and this colloquy from the Florida argument really stuck out and reminded me of the days of old, also from Alito:
Quite capacious, indeed! Again, Justices Roberts and Gorsuch piled on a bit to get him to really spell out how they could discriminate, even for direct messages.
These cases have allllll sorts of details and issues (e.g., it's a preliminary injunction on a facial challenge, which took up the lion's share of the argument time), but however the Court deals with it, I cannot imagine that it will be an across-the-board victory for the challengers. I cannot imagine five members of the Court will sign off on saying that the Constitution guarantees GMail the right to refuse private communications service based solely on their dislike of an individual's politics. The best I think the challengers could hope for is some vague kicking of the can back down, maybe giving in on a temporary injunction in order to develop a better record, but maybe having a classic Kavanaugh concurrence where he says some form of, "...and if you come back here saying that the result you came up with would Constitutionalize allowing GMail to refuse service solely on their dislike of an individual's politics, we will absolutely rule against you on the merits."
Sure enough, when Solicitor General Prelogar for the federal gov't entered the chat and Alito asked her if she agreed with the challengers' position on email services, she flatly disagreed with them. No one may ever know if she had actually game-planned this conversation or expected to have to explicitly disagree with them... or if she just was smart enough to have read the room and knew that whatever she came up with, she couldn't agree with them.
I can't imagine trying to predict exactly what the Court will come up with... there were a lot of indications that went the other way, too, and this one factor certainly isn't going to necessarily lead to a broad ruling in the other direction, but I also can't shake the feeling that we're really starting to see the 90s internet consensus finally cracking and crumbling. By that, I mean the consensus that was always bought and paid for by powerful internet companies who have held the line that they can do absolutely anything they want and cannot be held accountable for anything they do. They're the important part of the internet, and without them, they imagine that the entire 21st century economy will come to a halt. But it is only them, because they never really believed the propaganda around Net Neutrality; they never actually thought that it was a serious concern that maybe ISPs would start kicking folks off the net because of politics (at the time when there were precisely zero examples of this); that was just a play to try to reduce their costs at the expense of infrastructure companies. They're the ones who should be allowed to kick you off the net because of politics. As they dig their hooks deeper into every aspect of your internet experience, where you use your Google device to connect to your Google internet service, and only interact with the Google AI who tailors your entire experience, it will all be shaped at their whim, to their political preferences. Maybe, just maybe, we'll avoid that dystopia.
But what you really came here for is the memes, and the Texas Solicitor General at least tried to bring them for you. First, a shout out to all the lurkers out there! We love you guys!
Has anyone ever acknowledged the existence of lurkers in front of the Supreme Court before? Second, he tried describing the need for internet companies that allow individuals to control their own private communications, and that if the line is that if private companies provide the service, they can do literally anything they want, inject/reject whatever politics they want, versus if gov't provides it, then all that stuff ("censorship") is forbidden, then he basically said that we'd need to spin up a gigantic government internet 'company' to do that stuff if we want it without censorship. It was a little hard to follow, and his line certainly didn't land perfectly, but at least he tried:
As much as I have a strong desire to be able to respond to stuff like the latest Gemini hamfisted diversity-in-image-generation with, "Sir, this is a Wendy's," and that they just need to fuck right off with their politics in products that could provide the world incredible mundane technological benefits, we're probably going to have to muddle on with pretty powerful politicized internet companies even after these cases. The only current alternative of giving all that power to government may be the only thing that's worse. So, I guess, here's to rooting for it not being too much of a hash!
Here's the transcript of the oral argument in the second (Texas) case for whoever's interested: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/22-555_0pm1.pdf
With absolute gems from Alito like this one:
That would actually be a decent Google interview question. You'd need to identify units, make ballpark estimates, do a little bit of math.
For example, they say a picture is worth one thousand words. I estimate a typical newspaper contains 10,000 words and weighs one pound. So we have a rate of 10 pictures per pound. Let's ignore that newspapers also contain pictures.
A video contains roughly 30 frames per second, each frame a picture. YouTube has an absurd amount of video. They get about a million hours of uploads per day. Let's say that over their history they have 10 billion hours of video. That works out to 10 billion hours * 30 frames per second = 1,080,000,000,000,000 frames. Or, 108 trillion pounds.
In SotA multi-modal models, images are getting tokenized to 256 tokens, or ~196 words :)
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As SerialStateLineXer implied, given any of the usual compressions, only a fraction of the frames in a video will actually be pictures as such. Interesting technicalities I'm happy to remember from my university days: https://en.wikipedia.org/wiki/Video_compression_picture_types
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A frame of video will, on average, differ only slightly from the previous frame, and be worth much less than the thousand words a single picture is worth. This is why videos can compressed at much higher ratios than still images with minimal perceivable loss of quality.
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While looking for the source of these quotes I found a reddit thread where everyone dunked on Alito for being so stupid as to try to comprehend YouTube as a newspaper, even though he clearly is making a joke, even implying that YouTube is nothing like a newspaper.
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I'm not so sure -- I wouldn't be so confident that Roberts and Gorsuch would not find in favor of Google were that the actual question being asked. The First Amendment rights to free association and free speech get painted as 'freedom to discriminate' when it's a business with unfavored views, but the question of whether mail forwarding is expressive is not an obvious no. There are even pragmatic reasons to want it! If a mail provider has a First Amendment duty to pass mail forward, you quickly have to handle the question of spam.
But it's also not the question at hand, and even if they don't punt on the questions presented, they're almost certainly going to evade this maximalist question.
Ideologically-motivated expulsions from web fora or e-mail server blocklists were present in 2003 (indeed, there was a pretty sizable bloodbath or two then!), and well before then (usenet was an absolute mess in implementation). The diggpocalypse was 2007. They had smaller impact at the time due to lesser centralization, but they were definitely on enough of a radar that many vBulletin forums would have debates and disclaimers about how their on-sight bans weren't censorship, just sparkling bullshittery.
"Net neutrality" has long had many separate and conflicting meanings. The original Tim Wu version was more akin to your "reduce their costs at the expense of infrastructure" version, where Wu wanted all packets to be equally prioritized and all home ISPs to be symmetrical, but everything except the name had been forgotten by 2005. The Obama-era rules were drastically different, fighting a (imo, phantom for technical reasons) fear of ISPs selectively blocking or throttling unrelated providers (read: Netflix, which at the time consumed a massive portion of all bandwidth) in favor of fees or ISP-provided sites, with a scattering of exceptions. And then a colloquial version evolved from the Obama-era rules, which developed an independent content focus for those unrelated providers not present in the rules.
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>Explain to the Court what a hash is
>"Don't worry anon, it's a good decision"
>Decision released
>It's a hash
I think new technologies made a hash of free speech standards and we can't reach consensus about the solution, or even what the problem is. I would start with: Are social media sites public, or private? Both, neither.
I think a happy resolution would admit some (large) websites with everything-legal free speech, and some (large) websites with censorship and moderation. I can't imagine this would please everybody, but it would please me.
A website with everything-legal free speech would be unusable with the amount of porn and advertising spammed everywhere.
Commercial and pornographic speech are well-established under Supreme Court precedent to enjoy less protection than other forms. Indeed, the government already regulates unsolicited online porn and advertising. A website that enforces similar rules locally would be completely in keeping with the spirit of 1st Amendment jurisprudence, even if more strict in specific details than existing statute.
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4chan is one of the closest things we've gotten to that in the open web, and back when I used to use 4chan with any regularity over a decade ago, I recall thinking that it was not only usable, it was far more usable than any other "social media"-type websites, along with having an overall better social ecosystem (the enforced anonymity might have been the key to that one, though). Seeing how social media websites have evolved in the time since, I get the sense that the comparative advantage of 4chan has only gotten greater (though it seems 4chan itself may have changed in that time to become worse, so who knows).
4chan was massively toxic but the anonymity and completely ephemeral nature of the threads meant you could just... walk away and nothing would follow you.
No long-term social consequences. No need to worry that someone would e-mail your boss (well, minimal, if they captured your personal info it could be merciless). You could get trolled into an incandescent rage and then the thread would fall off the board and that was that.
The current version of social media is putting your personal identity next to every opinion you ever uttered and storing it for years on end, often making it trivial to search it up later.
Which lends itself to people policing themselves and each other more heavily, and empowers targeted, relentless bullying.
This is the main reason that I am happy beyond belief that the majority of my internet posting as a younger man was on 4chan. The quality of the conversations and content that came up was the main motivating factor at the time, but not having all of my stupid opinions and mistaken beliefs from when I was younger and dumber irrevocably attached to my name is such an incredible benefit that it makes me appreciate my time there even more.
Same.
I never had a truly 'edgy' phase but I tried out a lot of ideas and argued a lot of stupid points of view, some of which I believed and some of which I didn't, and finally got really good at just ignoring trolling and shallow critiques in favor of just making an argument and sticking with it until someone actually counters your point directly.
Which I still try to employ in forums like this.
And reddit did you the favor of suspending your account lol.
Going on two years, and it's the best thing that could have happened to me.
I can still access my old comments, though.
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Twitter doesn't allow everything, but it's the closest of any major website, and it's demonstrably not unusable.
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To me I think the solution is let them pick whether they want to be editors or infrastructure.
Under the first amendment you can sue for libel but social media is protected from that. You can either say edit (like Reddit on anything trans) or you can’t edit and you are protected like your the mailman.
It does get more difficult since preventing trolling behavior etc is necessary.
And then you probably need a scale/size test. Places like the motte, the moderators of a sub, someone’s personal blog (marginal Revolution) gets protection. Reddit itself couldn’t do content moderation. The moderators could. And if I liked the subject of a sub but not the moderation I could create TheMotte2, or Chicago2 etc.
The problem with your model is that the moderators would themselves be subject to liability for anyone who posts on their sub. Since mods are generally working for free, it's a pretty tough sell to take on that amount of risk. At some point, any moderated forum (and I use that term loosely to include things like talk radio) is going to have someone who is on the hook for libel by sole virtue of their moderation duties. At that point, the only way you'd get to have any kind of discussion online would be through ultra-moderated forums hosted by outfits like The New York Times who screen every comment and only post stuff that meets a certain standard, much like with letters to the editor. It may make for a more interesting discussion, but good luck getting your views across. Having a discussion like we have on here would be hell if we had to wait for some paid employee to preapprove everything we wrote, and good luck posting on nights and weekends.
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This is the case where Texas wants to prevent social media from censoring and the social media companies are claiming a First Amendment right to censor, right? Note that the "conservative" Supreme Court has given a green light to the Biden administration leaning on the social media companies to engage in censorship; I don't think they're going to want the states interfering with that censorship.
Sometimes, merits go strongly with the way that the preliminary injunctions and stays go; sometimes, they don't. I'd agree that this was a mildly concerning signal, but we're getting a full review of the merits on the question, with oral argument in three weeks. I'm really interested to see how they're going to sound.
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For anyone else similarly confused, the case described here seems to be NetChoice, LLC v. Paxton.
Ah, I did not actually state the names of the cases; thanks! That one is the Texas case (the second one I talked about, and the second one argued). The Florida case is Moody v. NetChoice, LLC.
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