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Tuesday, September 20, 2022

A state could stop this in the Fifth Circuit

I have not had much to say about the Fifth Circuit's abomination in NetChoice(Mike Masnick at TechDirt offers a good summary). The First Amendment analysis is absurd; it should be stayed soon; SCOTUS must grant cert (given the nature of the internet, the Court cannot allow this circuit split to survive); and I hope reversed later this Term by (at worst) 6-3 (Gorsuch is the only person about whose vote I am unsure). Someone said it reads like a Twitter rant and I think that is fair.

But the timing of this story is fortuitous. The Society for the Advancement of Judaism, an NYC Reconstructionist synagogue that has rented space to a local Republican organization refused to do so for an event with election-denier Dick Morris. The organization is protesting, insisting that this is not about Morris and election denialism but about a new general refusal to rent to Republicans--while the Temple could legitimately decide it does not want its forum used for election denialism, denying the forum to all Republican speech is different. NetChoice rested on a similar distinction--while sites perhaps can take steps against Nazi speech (which the Court dismissed as hypothetical), taking steps against "mainstream" conservative or Republican views is "censorship" that the state can stop.

Privately owned speech spaces (this Temple or the comedy club in Halleck) provide the best analogy to social-media sites--a privately owned space in which speech can occur, opened to speakers. Under the Fifth Circuit's logic, a state or city could pass a law preventing such spaces from "censoring," at least as to the "ordinary Republican speech" this organization says it intends to present.

Posted by Howard Wasserman on September 20, 2022 at 08:47 AM in First Amendment, Howard Wasserman | Permalink


I think it's quite clear to anyone with more than a room temperature IQ that refusing to subsidize someone else's speech—especially when it's a private party doing the refusing (with no state action present)—bears absolutely no resemblance to any sane definition of "censorship". The person wanting to speak is in no way shape or form prevented from doing so; nor is the person penalized for doing so—and again, we have to define "penalty" in a sane way to just mean losing some preexisting money/property/etc. while excluding the refusal to subsidize, because including the latter would be utterly circular.

That said, I'm not necessarily criticizing anything in the OP because it's written in a vague way that makes it hard to tell if it's merely applying the logic of NetChoice as a descriptive matter or actually endorsing it as a normative proposition—i.e., this is how NetChoice *would* apply to the Society or NetChoice *should* apply to it. Clarification might be helpful.

Posted by: kotodama | Sep 20, 2022 9:57:15 AM

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