"sufficiently important" is a very imprecise framing, because that's the only way to keep this particular piece of the argument from immediately falling apart.
https://twitter.com/glakier/status/1348280191777464320
When examining the cases one sees that the rule was (and still is) that the First Amendment will prohibit private actors from excluding speakers only when the private actors perform a function traditionally and exclusively performed by the government.
And so, people looking to use Marsh v. Alabama to claim that the First Amendment should apply to social media, or that First Amendment law is somehow "broken," obfuscate what the cases say in the same way an attorney might vaguely describe contrary precedent.
I get it, it's a good hook that draws people in to the argument.
But like trying to facially satisfy the duty of candor while hoping the judge doesn't take a closer look at that "but see," it isn't going to take you across the finish line.
But like trying to facially satisfy the duty of candor while hoping the judge doesn't take a closer look at that "but see," it isn't going to take you across the finish line.
If you want to argue that the law should change and use a vague, unworkable "importance" analysis to bind private actors by the First Amendment, go ahead (I'll disagree).
But saying First Amendment jurisprudence supports it (but for that meddling Roberts Court) is disingenuous.
But saying First Amendment jurisprudence supports it (but for that meddling Roberts Court) is disingenuous.
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