(1) Same lesson as the Facebook antitrust ruling earlier this week: Norms and assumptions change faster in the political sphere, but more slowly in courts. Slowing down and setting forth your factual, legal, logical justification matters.
2/
In other words, don’t get high on your own supply (of rhetoric).
3/
(2) The law was a political stunt and play for attention, sure. But it will still make very real constitutional case law in the courts, and tie (or untie) lawmakers' hands going forward.
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Did legislators think about the long-term consequences of their actions, in the form of court rulings? Passing a law in anticipation of future court responses is a long game, and seriously hard to spec out.
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(3) The court had some strong language about competition and monopolies, suggesting market power doesn't matter for the First Amendment analysis. I don't think I agree. (I also think this is the heart of the issue, as a matter of policy and logic.) 6/
In Turner, one of the big Supreme Court cases allowing lawmakers to over-ride the First Amendment interests of a private communications channel owner (a cable company) and make it carry speech it didn't want to, competition was a factor.
7/
It was one of the three state interests justifying the compulsory carriage. (Under intermediate scrutiny, since the court twisted and strained to say the carriage requirement was content neutral.)
8/
As Justice Kavanaugh reads Turner, competition was the ONLY factor justifying the case's outcome. That's from a very long dissent when he was on the DC Circuit. My teaching excerpt is here. docs.google.com/document/d/1uj…
9/
That tees up a really interesting battle of the conservative justices, with Thomas adopting the more contemporary right wing critique of platforms, and Kavanaugh being all old school and taking something more like the position Thomas took back in Denver Area.
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DENVER AREA, y'all. It's a nightmare of a case but people who care about this stuff should read it. scholar.google.com/scholar_case?c…
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I compressed Denver Area down into the smallest summary I could manage in Who Do You Sue. I also go over my take on the other case law relevant to "must-carry" laws like Florida's. (It's in the second half.) hoover.org/sites/default/…
12/
The left/right convergence and realignment of political priorities in this area is remarkable. Constitutional law that seemed very fixed could be in flux. Or not. It's all quite head-spinning. Watch this space.
13/13
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Are there Democrats in Congress who simultaneously (1) want platforms to act against things like electoral and Covid disinformation and (2) support Rep. @davidcicilline's antitrust bill with Sect. 2(a)(3) intact?
I see a serious conflict there.
As I read it, that part of the Cicilline bill opens the door to Infowars, Breitbart, The Daily Stormer et al bringing must-carry claims against platforms, or demanding higher ranking.
Here's what that part of the bill prohibits. The first two are about self-dealing by platforms, which is totally appropriate for antitrust/competition law. The third one opens the floodgates to litigation about speech and content moderation -- and bad outcomes.
I see this case as having three big questions: (1) When can a platform be liable for (c) infringement under substantive (c) law? (2) When is platform immunized from such infringement by eCommerce safe harbors? (3) What injunctions can issue even if platform is not liable?
2/
Question (1) -- when can a platform be liable for (c) infringement under substantive (c) law -- turns on evolving case law about communication to the public.
Bottom line: There are a lot of ways to wind up liable here, so the safe harbor issue in Question (2) matters a ton.
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It’s 2027. You’re a growing US platform startup, considering international growth. UK’s Online Safety bill has become law, and so has the EU’s DSA. So you know initial compliance costs are steep in both markets, and both have future regulatory risk.
Do you launch in:
If you responded, is your answer based on knowing something about:
(Wish I could cross-reference w answers to first poll...)
OK last one. The EU DSA has serious extraterritorial reach (think GDPR) and fines up to 6% of annual turnover. UK's Online Safety law has even broader territorial reach, and 10% fines.
For the region where you aren't yet in compliance, do you:
I finally hit on the perfect term for the interoperability issues around sharing friends' data: Other People's Privacy (OPP).
So bummed I hadn't thought of that in time for this event.
Per the article, the USPS used every stupid, creepy, irresponsible surveillance tool to do pseudo-police work that should never have been their job. And they sold it to Republicans as a way to keep tabs on BLM protestors, and said something else to Democrats.
The UK Online Harms draft captures contradictions of the platform speech debate in perfect microcosm.
Platforms must take down one legally undefined kind of content ("harmful") while leaving up another ("democratically important").
Have fun with that, guys.
If we could agree on what's "harmful" and what's "democratically important," we would be in a much different place as a society.
But I'm sure Facebook can sort it out.
And if they don't, Ofcom can sort it out and fine them.
It's good to have the inherent contradictions of the last few year's debate forced to the surface like that. Dialectics move fast these days.