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PaperclipPerfector  2mo ago (text post)   25195 thread views

Culture War Roundup for the week of February 26, 2024

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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 one of the more memorable exchanges, Justice Alito asked if the "government's position . . . [would] allow[] the banning of a book if it's published by a corporation?" Stewart candidly replied, "the electioneering communication restrictions . . . could have been applied to additional media as well." Even a book. Justice Alito was taken aback by the answer: "That's pretty incredible. You think that if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?" The answer was yes.

[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.]

The government changed its position six months later when the case was re-argued. Justice Ginsburg asked Elena Kagan, the Solicitor General and future-Justice, "if Congress could say 'no TV and radio ads,' could it also say 'no newspaper ads, no campaign biographies'? Last time the answer was, yes, 'Congress could, but it didn't.' Is that still the government's answer?" Kagan answered, "The government's answer has changed." There was audible laughter.

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:

JUSTICE ALITO: [...] does Gmail have a First Amendment right to delete, let's say, Tucker Carlson's or Rachel Maddow's Gmail accounts if they don't agree with her -- his or her viewpoints?

MR. CLEMENT: They -- they might be able to do that, Your Honor.

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!

That's when I say you look at the text of the statute, their theory would mean that even if you just want to lurk and just listen and see what other people are saying, they can kick you off for any reason at all. So if you have somebody who had never posted anything or their speech is identical to the speech of somebody else, their theory is: Well, we can kick you off.

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:

So, for me, the answer is, for these kind of things like telephones or telegraphs or voluntary communications on the next big telephone/telegraph machine, those kind of private communications have to be able to exist somewhere. You know, the expression like, you know, sir, this is a Wendy's.

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!

>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.

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.

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.

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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