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Notes -
NRA v. Vullo drops:
[Past discussions here, here, and here. Also, someone pick up the phone, because I called it.]
Perhaps Justice Jackson's retaliation theory would have survived, if only the NRA were prescient enough to bring it --
Nope.
Well, are there any protections for rights beyond 'don't do exactly this twice in a row', when this case had to go up to SCOTUS and took the better part of a decade to produce a case that 'clearly establish' matters in the first place?
How low is the standard here?
Remember, that's for a case where SCOTUS -- in an opinion written by Sotomayor -- slapped down the Second Circuit. Here, over a year later, the Second Circuit instead motions to circuit precedent holding that "vigorous dissent" or "a petition for rehearing en banc [that] was denied over the objection of five circuit judges" is sufficient. A cynic might notice that the 2nd Circuit covers land where state judges make arguments like "Do not bring the Second Amendment into this courtroom. It doesn’t exist here.", and ponder whether even that would be sufficient.
The more damning revelation is that all of this is still the motion to dismiss phase. The NRA alleges quite a lot of bad behavior by Mrs. Vullo and the broader NYDFS. Long-extant circuit precedents "generally prefer lower courts to resolve qualified immunity defenses at the summary judgment stage"; we didn't get that. Discovery might well have established far more of the harm, or at least proven rather than merely alleged the bizarre array of Vullo's retaliatory behavior. It was also too deep a cut for the Second Circuit's vaunted interest in due process to let survive.
Steam Bends The Knee
On a slightly more lighthearted topic, Valve has now updated its acceptable content list, specifically forbidding:
Steam has long had an awkward relationship with adult media, and not just because you might not want to tell your entire friends list when you first start up Giant Melons Simulator 3000. Valve is a big business, and a business mostly consisting of credit card transactions with a nontrivial chargeback rate. Even if it could afford a temporary disruption from a bank it operates with, or for that matter an eyebrow raised from one, it would cost the business orders of magnitude more than all adult video game sales would in a much longer period.
At the same time, Valve is an ideological company, and it has long committed to not being the taste police. While that commitment has had fuzzy edges even before it was written down, most of those exceptions and exclusions were at least arguably in the spirit of the original thesis. This one? There's not much but the payment processors.
In the short term, there's no shortage of other locales selling games, including adult-themed games, and other ways to make a living making games... though all are likely to get hit by the same pressures over time and sometimes already have the same sort of motions toward content provider rules. There are other ways to make a living making games, without necessarily selling the output. There are other ways to get a story out.
There's a fair argument that these sort of games shouldn't be monetizable, or shouldn't exist. I wouldn't agree to most of them, but I will admit few games banned so far are those I'd consider unique or unusual in their innovation or message. There's no cultural touchstones falling, yet, even among subcultures that go through astounding amounts of kleenex.
But it's also not clear that's what's actually banned, and that's the more damning bit. There is not, in fact, some clear list of what Steam's payment processors find acceptable; attempts to read through itch.io's list of payment processor guidelines point to a ban on porn entirely, and even a glance through those competitors will give seemingly-obvious differences from the letter of those rules. Looking through the list of removed games gives some common themes, but also some clear outliers (including one game that apparently wasn't adult, it just had a stupid name?).
Well, we can't ask Visa or Mastercard (or Wells Fargo) directly (and expect to get an answer), but can we look at the people who pushed them in turn?
Like most pornapocalypses, there's a bit of a bootleggers-and-Baptists activism involved between social conservatives and feminists, but one of the big actors is NCOSE, who spent the last week panicked over Grok's 'Ani' companion, previously wrote terrified fanfic about Frozen II porn, and tried to get a dating-sim-Bejeweled clone pulled. They're not likely to get everything they want; there are some fundamental disagreements in what content should be banned, even between NCOSE and other parts of this coalition. Indeed, it's hard to tell whether Steam's even seriously engaging with their rules here, or just trying to get them to go away. But to the entire coalition, the fight is clearly not done.
There's a common defense of these restrictions from a perspective of free speech, pointing to the difference between government and business coercion. No private merchant has to sell a specific product; no private credit card processor has to work with every possible client; a private bank gets a little more complicated legally but it's not a free speech question. It's only when the government leans on these groups to do that it becomes a clear-cut constitutional violation (or when Rehnquist likes you).
But we do know that happens, at least in some few other cases! It got lost in the rest of the politics, but Operation Choke Point specifically included smut in its list of suspect goods. And we only found out because of several whistleblowers, administrators so certain in their impunity that they spread documentation across multiple federal offices, and literal years of Congressional investigation.
But we're not going to get that, here. Congress doesn't and won't care. Even in the unlikely case that NCOSE and the modern-day-Sarkeesians get everything they want, Congress won't care. There's no insurance executive here who believed in the mission and will provide testimony to individual businesses at the sharp end of the stick, demonstrably. Without that support, or equivalents, there may be no serious way to actually find out what happened in any other case, including this one. There's no cause of action a game developer would have against Steam that would survive a motion to dismiss, and even in a world where multiple different government agencies were involved in pressuring someone here, those developers wouldn't even know who to sue, nevermind have a method with any chance of success.
Except...
Bank Pause Letters: Electric Boogaloo
[disclosure: while there are some technically interesting components to
ponzigpucoins and there are some things like distributed DNS that I hope eventually work out, the entire field has enough scammers that I recoil from it. As a result, there may be (more) errors in the general discussion than I normally aim for. Corrections are appreciated, as always.]In February of this year, Patio11 over at
XTwitter commented on a court transcript:The transcript is a fascinating (if dry) read, and if anything Patio11 is giving his trademark understatement. The rest of the history doesn't look much better. To summarize, Coinbase believed that a handful of government agencies had pressured a large variety of banks to stop taking in new ccoin-related business, and decrease existing accounts as a percentage of total business.
Here, there was a known set of agencies that could have been making the regulatory decisions. There was a very specific timeline that those regulations could have actually come down in. "History Associates", the org used as a FOIA plaintiff, was unusually well-funded, and had several organizational protections making both the initial FOIA and the lawsuit going after the agency violating FOIA more viable. There were very specific terms, and to the extent the exact rules weren't known to the plaintiffs, they could make some very specific guesses about the language the regulatory agencies would use.
(TBF, they have also gotten a whistleblower from the FDIC, although given that he seems to be coming across to the court as a bit of a nutjob, not sure if that's helpful or otherwise. But as much of a nut as he seems, he also has alleged that the FDIC was destroying data, and the FDIC admitted that it did not issue a command to preserve that data.)
If all of that helped, it wasn't sufficient. Even before the January 2025 court hearing, the FDIC has been abusing FOIA exceptions to illegitimately hide the extent these organizations were targetted and had rewritten the FOIA request in a way that we now know changed it from dozens of documents to a mere two. The SEC, involved in determining whether ETH was a security or not, had its chair publicly claim that the change from proof-of-work to proof-of-stake could impact something somewhat, and then never publicly saying how, avoided having any court hearings turn as embarrassing as the FDIC's. But it's not done much better -- starting out by declaring no responsive documents existed, then that over a hundred thousand did but were temporarily blanket-exempted, and then ten months after the initial rejection announcing that not only did they not prepare for after that exemption inevitably ended, but that they wouldn't even know what the timeline for a Vaughn index to explain what documents could be exempted for other reasons would be.
But the results, damning as they are, don't actually mean anything. It looks like the claims of a 15% rule weren't probably made up, but it's also not explicitly in the documents, and even if it were in one it wouldn't mean it was actually being applied as a consistent rule. Even today, I wouldn't want to bet monopoly money on it. In the unlikely case that these particular lawsuits ever actually resolve, they're still FOIA lawsuits; the best "History Associates" can hope for are some damning documents and some relatively-small monetary awards. Actually achieving any concrete policy changes would require either overtures toward the public (good luck) or toward senators (gfl) or filing further lawsuits (hah).
Thankfully, we have at least one alternative. There's been a long-running joke about coup-complete problems, as a disparaging way to describe issues that can't be resolved short of having complete control over a government. Unusually for such jokes, we have what the current president's political opponents might call a test case. For various reasons, that President does not like (some) debanking. There has been some regulatory movement, and even some legislative woolgathering (uh, if you can avoid laughing at the name). Whatever results from that might not be worth the toilet paper it was written on, but lawsuits have the same problem and didn't have to filed in 2018 to get a no today, unlike Vullo.
Of course, in neither case will we ever find out what the actual rules are.
The Coinbase lawsuits were a hoot. At one point the stock was down 90% from the IPO seemingly on the basis that they'd get bankrupted by federal lawsuits. It was a fun and profitable bet to take the other side of. They had assets on the book worth more than their market cap. I'd had this theory that Coinbase would execute a regulatory capture strategy for crypto in the US, as they'd always played well with regulators and generally licked their boots and did whatever they were asked to do to the consternation of /r/bitcoin. I never counted on the feds just having an insatiatable hardon that verged on a medical condition for destroying them on principle. I especially enjoyed the SEC being hoisted by their own petard when the Bitcoin ETFs were approved, effectively by court order.
Sometimes I do wonder what would have happened if the Biden administration hadn't nakedly antagonized so many interest, and driven them into the arms of Trump not out of affinity, but existential desperation. I guess I can be thankful that this once at least, evil did contain the seeds of it's own destruction.
And to a smaller degree Lina Khan going after tech companies. Blocking acquisitions and saying they need to be broken up. Not an idle threat when the head of the FTC keeps taking companies to court over it. Amongst other anti-big-tech Biden administration actions.
Then after the election I'm listening to Pod Save America and they are outraged that these same tech companies give a million dollars to the Trump inauguration or Bezos commands the Washington Post to not endorse Kamala. Not that they love Trump, but in desperation trying to avoid more punishments from Democrats.
Ok, but what’s the likelihood democrats will won them back? It seems like they’d need Newsom ‘28 to not go after people who donated to his opponents(lol).
In order for Big Tech to rejoin the Democrats, the Democrats would need to make some kind of credible commitment to not backstab Big Tech the second they get back into power. I don't think it's very likely. I wouldn't even trust the Democrats to hold off on the backstab until after they regain power. They're a very stabby people.
Say what you will about Trump but he's capable of playing ball, at least in the short term. If you help him get what he wants then he'll hold off on betraying you for at least a few months. That's not great, but it inspires more loyalty than the Democrats, who will betray any ally at any time if enough activist groups demand it.
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