Thread by @daphnehk

A few more musings on the ruling striking down the Florida platform law. storage.courtlistener.com/recap/gov.usco…

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(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.
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In other words, don’t get high on your own supply (of rhetoric).
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(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.)
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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.
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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.)
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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…

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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/…

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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.

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