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Culture War Roundup for the week of March 18, 2024

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MR. FLETCHER: So there's a lot packed in there. I want to give you one very specific answer first and then step back out to the proper context. So specifically you mentioned demanding an answer right away and cursing them out. The only time that happens is in an email that's about the President's own Instagram account. It's not about moderating other people's content.

Here's the context Fletcher is trying to maneuver around. It's far from the most egregious stretch of the duty of candor to the court, but it's a pretty overt example of reframing the argument away to what he wants it to be, rather than what was asked, and it's not even honest at that.

I'm hoping that it will be a narrow ruling, with Roberts spearheading a tailoring doctrine that focuses on the putative lack of traceability and distinguishes between coercion as unacceptable, but strong encouragement being fine.

Maybe they'll try to split the baby between this case and Vullo, but like punting on Remington v Soto it just invites massive efforts. Even if coercion is officially banned, if the jawboning in this case isn't enough to be coercion, it'll be so impossible to actually prove traceability or coercion that the protection will be meaningless.

And the more morbid revelation is that it's probably pretty meaningless even if they do rule expansively. If Missouri wasn't funding this case, or if the bad actors has tried even slightly harder to keep the worst (discoverable) behavior to phone, it wouldn't be getting anywhere; Vullo only got as far as it did because whistleblowers (allegedly) provided specific details about tiny closed-door meetings. No one's going to do something similar against Gumroad. The courts aren't built for fishing expeditions, even if anyone can spot the fins with the naked eye and there's a constant Jaws theme in the background.

if the bad actors has tried even slightly harder to keep the worst (discoverable) behavior to phone

Like in Operation Choke Point. Obama administration made sure to have in person meetings with bank leadership and not write anything down. In order to defeat discovery. The public found out eventually, Congress forced them to testify regarding their malfeasance, etc. But no one was punished. They must be doing this a lot and usually getting away with it.