Last summer, we first started covering the insane efforts of GOP Govs. Abbott (Texas) and DeSantis (Florida) to prevent private entities / social media sites from deciding which speech they would amplify, and which they would declare violates their private company terms of service.

To be clear, this is precisely identical to the nation’s old line editorial pages, deciding which letters to print… and which… not to print. Both are “amplification” decisions, and it has been a bedrock provision of black letter First Amendment law that (absent outright sedition) no state-, or federal- government actor may attempt to regulate any newspaper’s op eds.

But the malevolent chuckleheads in Texas and Florida press onward, because they are just sore, and mystified, that the GOP got trounced in both 2020 and 2022. So, we will provide links to two of the latest SCOTUS briefs, on topic — as argument day approaches, at the high court — and we will then re-post our original thoughts, below the line.

Here is the core of the clearly correct argument on the law, in favor of our First Amendment rights to associate as we please, in the Florida cases:

…Notice that the court of appeals blocked the consistency rule. The state has no valid interest, the court explained, in requiring a platform to host content simply because it hosted similar content in the past. Pet.App.61a (citing Hurley, 515 U.S. at 573-74). A similar rationale doomed SB7072’s requirement that platforms not change their rules more than once every 30 days. The right to editorial judgment, the court found, includes the right to change one’s editorial standards as often as one pleases. Id.

But in the absence of the consistency and 30-day wait rules, the transparency rules make no sense. In its effort to rescue (most of) them from invalidity, the court of appeals shifted the basis for those rules from content moderation to consumer protection. Pet.App.63a. Transparency rules or no, however, the First Amendment guarantees platforms’ right to moderate content as they see fit. Since the state cannot order platforms to enforce their rules consistently, or to freeze them in place for set periods, the consumer protection rationale for transparency rules is significantly undermined….

And, this is from the Texas cases:

…The Eleventh Circuit held that such laws cannot meet even intermediate scrutiny. Moody, 34 F.4th at 1226-27. Affirming that holding would resolve the constitutionality of HB20 Section 7. Likewise, both cases ask whether government may compel websites to provide “notice and a detailed justification for every content moderation action.” Id. at 1230. And the pending Moody cross-petition implicates the remaining disclosure and operational provisions. See Cond. Cross Pet. 28-37, NetChoice v. Moody (U.S. No. 22-393). Rulings on these issues will resolve the constitutionality of HB20 Section 2….

These laws are an affront to ordered liberty, written by poorly-educated hard right morons who seek to control what cannot be controlled — the freedom of Americans to speak and write, and to not speak and not write as they please. They also offend the notion that private clubs may (so long as not engaging in racial or gender or religious discrimination) decide what goes on the bulletin board, and even… who may join the club — in order to make the club’s advertising business most profitable.

Since when did GOP become anti-advertising businesses? And since when (after ole’ Saint Ronnie removed the fair access and must carry rules at the old 1980s FCC!) did the GOP decide that Newton Minnow was… RIGHT? [They didn’t of course. They are just angry that all the billions Rupert Murdoch (and friends) spent buying old line, over air and ink-paper outlets — from 1980 to 2016… have, in the last seven years… been “horse and buggied” by the spaceships of social media: frictionless, ubiquitous in reach (available in every cell phone)… and completely outside the Faux News editorial powers.]

In sum, the new world actually achieves what Murdoch could not: endless reach, and deep engagement, for those willing to think for themselves. But it is a business, not a government acting here. And Amendment One says the Florida and Texas legislatures cannot tread here, absent outright sedition. Here’s the original item (from mid-2022).

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About 50 to 70 years ago, the three television networks were required by FCC rules to provide “equal time” to opposing views — when an opinion, especially a deeply-political opinion piece, was aired. There were only three ways to reach that vast and immediate audience, with the impact of color television: ABC, NBC and CBS (and in some more urban locales, there was a PBS affiliate that could be received by over the air broadcast). But even those rules, against the big three, were deemed unconstitutional as Ronald Reagan’s trickle-downers took power. They were tossed, as being antithetical to a free and robust market for ideas. It didn’t help that it was the government — in the guise of the FCC — that was acting, to tell private TV carriers what they must broadcast. Conservatives, essentially everywhere, cheered when the must carry and equal time rules were allowed to lapse.

So — it is with palpable irony, now — that a half-century later, the grown children of those Reagan conservatives in Florida and Texas have passed state LAWS that purport to tell entirely private businesses / social media companies [of which there are now nearly as many (deep double digits), nationwide as there were as to TV, at the very beginning of the cable revolution of the early 1980s] which viewpoints they must carry — or at a minimum, they must provide specific federal court-like adjudications, if the platforms decide to remove any content. [Of course, this is really about being free to use hate speech and lies as political agitprop weapons, in what is effectively a private host’s / person’s living room.]

So — last week we mentioned elsewhere that the Eleventh Circuit had correctly blocked the Florida law. This afternoon, the Texas version, called HB 20 — which had already reached Justice Alito. . . was stopped, dead. Even Alito, in his own dissent from this block admitted that the law at least appeared “facially unconstitutional, under the First Amendment” — as a state government’s attempt to regulate private club speech or silence, based on content. And that is where this will end. But for now, the laws in both Texas and Florida are stayed — they cannot be enforced… until the Supremes get to a full-on merits argument / hearing, and decision.

…Applicants are two trade associations that represent major social media platforms covered by the statute. They challenged the constitutionality of HB20 in the United States District Court for the Western District of Texas, contending, among other things, that the law is facially unconstitutional under the First Amendment. The court agreed, and it preliminarily enjoined the Texas attorney general from enforcing the statute….

Onward — but if anyone needs a light-house beacon, to guide them to the conclusion, and determine that the GOP has become the anti-business, and anti-freedom party, this would be it.

Two GOP controlled states, both trying to force private companies to carry hate speech (and to force women to carry to term, even in the case of rape or incest). I did not like Reagan, but he certainly is spinning in his grave, at what these frothy nut-jobs try to call a “conservative” agenda. These are… brown-shirts, not conservatives. Out.

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