5th Circuit ruling on content moderation

[I]nternet companies no longer have 1st Amendment rights regarding their editorial decision making.

[...]

[L]ast summer, in a fit of censorial rage, the Texas legislature passed HB 20, a dangerously unconstitutional bill that would bar social media websites from moderating as they see fit. As we noted, the bill opens up large websites to a lawsuit over basically every content moderation decision they make (and that’s just one of the problems). Pretty quickly, a district court judge tossed out the entire law as unconstitutional in a careful, thorough ruling that explained why every bit of the law violated websites’ own 1st Amendment rights to put in place their own editorial policies.

On appeal to the 5th Circuit, the court did something bizarre: without giving any reason or explanation at all, it reinstated the law and promised a ruling at some future date.

  Tech Dirt

The point is, of course, that the GOP and Trump world want Trump and his ilk to be able to post whatever they want on privately owned websites such as Twitter and Facebook.

Parallel to all of this, Florida had passed a similar law, and again a district court had found it obviously unconstitutional. That, too, was appealed, yet in the 11th Circuit the court rightly agreed with the lower court that the law was (mostly) unconstitutional. That teed things up for Florida to ask the Supreme Court to review the issue.

And now, the 5th Circuit has handed down its ruling in the Texas case: HB 20 stands.

It is difficult to state how completely disconnected from reality this ruling is, and how dangerously incoherent it is. It effectively says that companies no longer have a 1st Amendment right to their own editorial policies. Under this ruling, any state in the 5th Circuit could, in theory, mandate that news organizations must cover certain politicians or certain other content. It could, in theory, allow a state to mandate that any news organization must publish opinion pieces by politicians. It completely flies in the face of the 1st Amendment’s association rights and the right to editorial discretion.

[...]

Considering just how long Republicans (and Oldham was a Republican political operative before being appointed to the bench) have spent insisting that corporations have 1st Amendment rights, this is a major turnaround.

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[I]t’s as if Judge Oldham has never heard of the 1st Amendment’s prohibition on compelled speech.

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Judge Oldham insists that concerns about forcing websites to post speech from Nazis, terrorist propaganda, and Holocaust denial are purely hypothetical.

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Oldham continually focuses (incorrectly and incoherently) on the idea that editorial discretion is censorship. There’s a reason that we’ve spent the last few years explaining how the two are wholly different — and part of it was to avoid people like Oldham getting confused. Apparently it didn’t work.

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It basically argues that the state can now compel any speech it wants on private property, as it reinterprets the 1st Amendment to mean that the only thing it limits is the power of the state to remove speech, while leaving open the power of the state to foist speech upon private entities.

Remember when the right continually railed against "activist judges"?

Continue reading.

...but hey, do what you want...you will anyway.

UPDATE: From a First Amendment attorney:

More on Mike Flynn's desire to have only one religion in America

Flynn’s suggestion that there should only be one religion in the United States drew quick backlash on social media.

[...]

Flynn has recently taken to talking about his Christian faith as a way to refute claims by QAnon followers that he worships Satan.

  Slate

I did not realize that was a QAnon thing.

The former national security adviser also characterized the investigation into the riot as “the insurrection crucifixion” and likened House Speaker Nancy Pelosi to Pontius Pilate. “This is a crucifixion of our First Amendment freedom to speak, freedom to peacefully assemble. It’s unbelievable,” Flynn said.

How did he get past freedom of religion to get to freedom of speech? It's right there at the beginning.

Prior to the unusual controversy, Flynn had embraced his position as a hero to supporters of QAnon, taking a QAnon oath, raising money from QAnon believers, and selling QAnon T-shirts. In May, Flynn even appeared at a QAnon conference and endorsed the idea of a military coup.

But QAnon fame is a fickle thing. After promoting QAnon for more than a year, Flynn now finds himself on the business end of the conspiracy theory. Like QAnon targets before him, Flynn is now struggling to persuade angry QAnon believers that he isn’t a secret Satan-worshipper. 

If we can afford to wait, these people will eventually eat each other.

Flynn isn’t the first right-wing figure tied to QAnon to see its acolytes turn on him. Oklahoma Senate candidate Jackson Lahmeyer, whose challenge to Sen. James Lankford (R-OK) has been endorsed by Flynn, appeared at an April pro-QAnon conference with Flynn in Tulsa.

A few months later, however, Lahmeyer posted a seemingly innocent picture of his daughter wearing red shoes—apparently unaware that QAnon followers consider red shoes to be yet another sign of their imagined Satanic sex-trafficking cabal. Lahmeyer was soon caught up in a QAnon controversy of his own.

"Unfortunately, I have to say it because people are asking me," Lahmeyer wrote in a Facebook post. "I’m in no way involved in Child Sex Trafficking, pedophilia or devil worship."

[...]

Flynn’s trouble started on Sept. 17, when he led a congregation at Nebraska pastor Hank Kunneman’s Lord of Hosts Church in prayer. Flynn’s prayer included invocations to “sevenfold rays” and “legions,” two phrases that struck some of Flynn’s followers as strange.

“We are your instrument of those sevenfold rays and all your archangels, all of them,” Flynn said, later adding, “We will be the instrument of your will, whatever it is. In your name, and in the name of your legions, we are freeborn, and we shall remain freeborn, and we shall not be enslaved by any foe.”

As video of the prayer circulated in online conspiracy theorist groups, the references to “legions” and “rays” soon sparked speculation among Flynn’s right-wing supporters that their hero had been lured to the dark side. Always on the lookout for the Satanic influence they imagine lurks at the heart of the world, they claimed that Flynn had secretly been worshiping the devil. Worse, since the congregation was repeating the prayer after Flynn, the rumor went, he had duped hundreds of Christians into joining the ritual.

“A lot of people in the Christian world believe that when you pray to rays of light and legions that you’re praying to the devil,” Oebel, the YouTube host, explained in his interview with Flynn.

[...]

Flynn’s prayer bears a striking resemblance to a prayer by Elizabeth Clare Prophet, the now-deceased leader of an anticommunist doomsday cult obsessed with nuclear war. Prophet’s group, the Church Universal and Triumphant, reached its peak in 1990, the year she predicted much of the world would be destroyed in a fiery nuclear exchange between the Soviet Union and the United States. Prophet’s followers flocked to her Montana ranch, building fallout shelters for an apocalypse that never arrived.

[...]

For example, in one address to her congregation, Prophet said, “In the name of Archangel Michael and his legions, I am freeborn, and I shall remain freeborn, and I shall not be enslaved by any foe within or without.”

  Daily Beast

...but hey, do what you want...you will anyway.