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Forum questions

May 23, 2022

A funny thing happened on the way to the forum — money and politics. Also, Ted Cruz is now officially for sale.

Milt Policzer

By Milt Policzer

Courthouse News columnist; racehorse owner and breeder; one of those guys who always got picked last.

Are Twitter, Facebook, TikTok, Reddit, et al. like newspapers that can pick and choose what to print or like a business that can’t discriminate without a religious excuse? If you create a forum, do you have to let everyone use it? When does a private company become a utility?

Welcome to the head-scratching, migraine-inducing world of free and/or expensive speech and possibly the First Amendment.

My headache was reinvigorated a little more than a week ago when the U.S. Court of Appeals for the Fifth Circuit decided to lift an order blocking enforcement of a Texas law that allows people to sue big-time social media platforms for censorship.

Bring on the Nazis, critical race theorists and anyone else someone doesn’t like.

To be clear here, the Texas law isn’t enforcing free speech under the First Amendment. The amendment, as I assume anyone reading this knows, only applies to the government. What Texas is doing is violating the First Amendment, at least in theory, by forcing unwanted speech onto a private company’s forum.

Imagine The New York Times being forced to let anyone say anything in print. Imagine Fox News being forced to let me read my columns on the air. Now bring yourself back to reality.

The Texas law applies only to social media platforms with more than 50 million “active users” in a year. The law defines them as “common carriers by virtue of their market dominance.” I think this means you can yell anything you want if you’re riding a bus.

It also means you can censor all you want if you have 49 million users or less. But let’s not quibble about numbers. We know it’s meant for the big social media guys.

And I know that traditional media outlets are not the same as forums like, say, Twitter that are designed to let people vent. Forum sites don’t have to spend any money providing content — their users are also their product creators and their marketing data creators. It’s a pretty sweet deal for them.

This is where it gets tricky and migrainy. If Twitter users are customers like a gay couple wanting a to post marriage photos with their cake, should you be able to refuse to accept their business? But what if Twitter users are seen as content producers? Shouldn’t you be able to regulate the content output on a privately owned site? You don’t want bad cake recipes ruining gay weddings.

Do we need to protect the freedom to tell people to drink bleach and ignore public health on the biggest megaphones out there?

It gets weirder when you realize that a conservative state like Texas is doing battle with big business. What kind of Republicans are these?

The cynic in me — which is pretty much all of me — thinks there’s a bit more than free speech and the protection of society underlying this dispute. That bit more is a lot of money.

After all, the Texas law very specifically says the platforms can censor sexual exploitation, criminal incitement, threats and anything that “is unlawful expression.” The only “prohibited censorship” in the law are bans based on viewpoints or “a user’s geographical location in this state or any part of this state.”

I’m not sure how you can be in Texas but not be in part of Texas (or in part of Texas and not be in Texas), but that’s what it says.

So what’s the big deal? Twitter, et al., can still, at least in theory, censor insurrectionists and quack medicine purveyors. Anyone can still respond to a wacko Texas politician.

The big deal becomes a little clearer when you look at who sued Texas. It wasn’t Twitter or Facebook or Tik Tok — it was two industry lobbying groups called NetChoice LLC and Computer & Communications Industry Association. If you check out their websites, you see they have similar lists of big-time tech clients.

And what do big-time tech clients really care about? I know I don’t have to answer that.

The Texas law is not good for business. It requires detailed public disclosures about “content management, data management, and business practices” and a biannual “transparency report.” It also requires a formal complaint system for users with appeal procedures.

And, perhaps most expensive of all, it allows lawsuits by anyone who feels wronged. I don’t need to tell you how many people feel wronged almost all the time.

The lawsuit isn’t even coy about this: “All of this will injure the businesses of Plaintiffs’ members, irreparably damage their brands and goodwill, and weaken their business models and competitiveness.”

Freedom of speech may have nothing to do with any of this.

Idle question. Have you ever wondered why we keep hearing from people — over and over again — about how they’ve been censored?

Censorship doesn’t seem to be working very well.

Another question. Is censorship, aka content moderation, on the internet really the problem or it is the lack of it?

Just wondering.

U.S. Sen. Ted Cruz, R-Texas, grills witnesses at a 2021 hearing of the Senate Judiciary Committee on Texas' near-total ban on abortion. (Screenshot via Courthouse News)

No Cruz Control. Now that Senator Ted Cruz has gotten the Supreme Court to rule that bribery is part of democracy because money talks, it’s time to take the advice I gave you a couple of weeks ago: buy politicians.

The majority court ruling last week in Federal Election Commission v. Ted Cruz for Senate has lots of very odd things in it and I won’t summarize all of it for you. It does point out, rightly, that it shouldn’t matter whether there’s a big donation before or after a campaign — those donations have big voices whenever they’re made.

Fair enough. But there are some very mind-binding things in the ruling. Like this:

“If the candidate did not have the money to buy a car before he made a loan to his campaign, repayment of the loan (by a campaign contributor) would not change that in any way.”

Yeah, but if spending on the campaign made the car — I’m assuming a high-end Tesla — unaffordable, it can become affordable again if someone pays off the loan for you. I’m wondering if Justice John Roberts knows how money works.

The next sentence is this: “On top of that, contributions that go toward retiring a candidate’s debt could only arguably enrich the candidate if the candidate does not otherwise expect to be repaid.”

So you’re only enriched if you expect to be enriched.

And then there’s this: “As for losing candidates, they are of course in no position to grant official favors, and the Government does not provide any anticorruption rationale to explain why post-election contributions to those candidates should be restricted.”

Could it be because losing candidates aren’t going to get post-election contributions?

I’m looking forward to the next time Ted Cruz loses an election. He may not be able to afford a new car.

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