This episode features a much deeper and more diverse examination of Fifth Circuit decision enforce Texas social media law as we did last week. We devote the last half of this episode to a structured dialogue between Adam Candeub and Alan Rozenshtein on the decision. Both wrote about it, Alan critical and adam with support. I begin by arguing that, contrary to the dismissive legal Twitter reaction, the opinion is a brilliant and effective piece of Supreme Court advocacy. Alan thinks that’s exactly the problem; it opposes the creaking self-certainty of opinion and the refusal to recognize the less convenient parts of previous jurisprudence. Adam is closer to my point of view. We all seem to agree that the opinion succeeds as a hearing for Judge Oldham to become Judge Oldham in the DeSantis administration.
We review the opinion and what its critics dislike, addressing the competing free expression interests of social media users and the platforms themselves, whether there is any basis for an injunction today, being given the relative weakness of the overbreadth argument, and whether “the exercise of editorial discretion” is a fundamental right under the First Amendment or simply an artifact of older technologies. More intriguingly, we see an unexpected consensus that Judge Oldham’s (and Judge Thomas’) common carrier argument may prove to be the most powerful argument in the case when it reaches the Court.
In the roundup, we focus on the sprint to pass additional legislation before the end of Congress. Michael Ellis explains the debate between Cyberspace Solarium Commission alumni and business lobbyists over enactment a set of legal obligations for systemically critical infrastructure companies.
Adam describes a strange bill that united the senses. Amy Klobuchar (D-Minn.) and Ted Cruz (R-Texas) in an effort to give small media companies and broadcasters antitrust immunity to negotiate with major social media platforms over the use of their content. Adam is skeptical, Alan less so.
The Pentagon, braver in the face of bullets than a bad Washington Post story, runs to slap the flap on fake social media accounts. Michael tells us the accounts ran pro-American stories, but had little success before Meta and Twitter spread and kicked them off their platforms. Now the Ministry of Defense is conduct a comprehensive review of military information operations. I predict fewer such efforts and I do not mourn their loss.
Adam and I are touching on a Meta decision Oversight board criticizes Facebook’s automated image deletions. I offer a new touchstone for understanding content regulation on the big platforms: They don’t care, so they’ve turned the whole effort over to second-rate AI and second-rate employees. There is a lot of explanatory power here.
Michael guides us the Treasury Department’s new flexibility on sending communications software and services to Iran.
And, in quick strokes, I note that:
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