Utah Governor Vetoes Ridiculous Unconstitutional Content Moderation Bill; Makes His Brother-in-Law Sad
from the silly-nonsense dept
Earlier this month, we noted that, to close out its session, the Utah legislature decided to pass two separate blatantly unconstitutional bills. One requiring porn filters on internet-connected devices, and the other that tried to overrule Section 230 (something states can't do) and require all "social media corporations" to employ an "independent review board" to review content moderation decisions. It also says that social media companies must moderate in an "equitable" manner (whatever that means).
We went through all of the reasons why the bill was unconstitutional, as did others in Utah. In response, the bill's sponsor, Senator Michael McKell, gleefully told a local TV news station that he looked forward to wasting Utah taxpayers' hard earned money by defending it in court (he didn't say that it would be wasting the money -- that's just us noting that it would be throwing away their money since the law is so clearly unconstitutional).
Thankfully, Utah Governor Spencer Cox (who happens to be Senator McKell's brother-in-law) has decided to veto the bill -- his very first veto (as we noted earlier, he chose to sign the other unconstitutional bill about porn filters).
Oddly, Cox's office released two separate statements regarding the veto -- only one of which notes that the bill was likely unconstitutional, while the other one seems to act like the bill just needs a few technical tweaks. It's almost as if he's trying to have it both ways and address two different audiences with two very different statements. The official veto statement makes it clear that the bill has serious constitutional issues:
Whatever course of action we take to protect online speech should seek to fully uphold the values enshrined in the First Amendment. While it is clear that something must be done, I believe that S.B. 228 raises significant constitutional concerns. And while I am proud that Utah is leading the effort to protect individuals' speech on the internet, I believe we will be well served to continue further coordination with our sister states to ensure faire access to the nation's largest public square.
Um, yeah, no. The government does not get to force anyone to host anyone's speech. That's not how it works. At all. The very notion of it is against the principles of the 1st Amendment.
The other statement, that Senator McKell himself posted to Twitter (after whining about the fact that his brother-in-law vetoed his bill) pretends that there are real serious issues involved in all of this, rather than silly, unconstitutional performative nonsense.
On a serious note, this is an issue that we need to spend more time on. Please see the attached press release. I’m optimistic we can find a better solution as we move forward. pic.twitter.com/8mhrHtddeZ
— Mike McKell (@mikemckellutah) March 23, 2021
That statement doesn't even mention the constitutional issues and instead suggests that there were merely "technical issues" that got in the way (apparently some in Utah think the 1st Amendment's prohibition on compelled speech, as well as the Constitution's Commerce Clause are merely "technical issues").
Gov. Spencer Cox vetoed S.B. 228 Electronic Free Speech Amendments, with consent from the Senate President, Speaker of the House and bill sponsors. After conversations with the legislative and executive branches, this action was jointly determined as the best path forward due to technical issues. Censorship by tech companies is a serious concern, and this action will not hinder nor prevent Utah from finding the right policy solution.
“The sponsors of this bill have raised valid questions about the impact social media platforms can have on public discourse and debate,” said Gov. Cox. “Our country continues to grapple with very real and novel issues around freedom of speech, the rights of private companies and the toxic divisiveness caused by these new forms of connection, information and communication. While I have serious concerns about the bill, I appreciate the willingness of the bill’s sponsors to continue to seek a better solution. Utah must be a leader in this space and I look forward to engaging with legislators and social media companies to address these legitimate concerns.”
S.B. 228 had made significant headway and elevated Utah’s position in conversations with big tech corporations. Utah policymakers along with the governor will work closely with stakeholders to ensure all Utahns have an equal opportunity to exercise their First Amendment right.
Um, yeah, you see, the 1st Amendment blocks the government (including the government of Utah) from making laws that impact individuals' rights to free expression. The government cannot seek to force private companies to host speech. So the very idea that they need to step in to make sure that "Utahns have an equal opportunity to exercise their First Amendment right" is nonsense.
Even more bizarre is that Cox allows his brother-in-law, who wrote the bill, to put in a completely nonsensical statement into the press release claiming (laughably) that it's actually the content moderation decisions of private companies that must violate the 1st Amendment:
“I appreciate the commitment from stakeholders who have agreed to work with the Legislature to craft a better solution that will increase transparency within social media corporations,” said Sen. Mike McKell. “Censorship practices are un-American and likely unconstitutional. In Utah, we defend the right to freely express opinions and views, regardless of political or religious affiliation. The outcome of S.B. 228 is not ideal; however, the issue of free speech and online censorship remains a priority and policy will continue to be refined throughout interim.”
That's not how any of this works. You don't get to force private companies to moderate the way the government wants them to moderate. That is what's unconstitutional. Utah: elect better people who will actually stand up for your constitutional rights, not try to demolish them while pretending that their attacks on the Constitution are no problem at all.
McKell further notes that as soon as the legislature is back in session he'll introduce a new version of his unconstitutional bill. I will take a wild guess and predict it will be equally unconstitutional. Especially since almost everyone involved in this ridiculous process keeps saying the same stupid things:
“Free speech is one of our most cherished American values and essential to democracy,” said President J. Stuart Adams. “With the rise of social media, the issue of censorship has become increasingly prevalent, and the need for corporation transparency has proven necessary. While I support the concept and ideas of S.B. 228, after conversations with Gov. Cox, Speaker Wilson Sen. McKell and Rep. Brammer, we decided continuing the discussion regarding online censorship will be the most productive path forward. Together as Americans, we must ensure the right to speak freely remains intact, and I look forward to addressing this issue in the near future.”
Everyone has the right to speak freely. What they do not have the right to do is to force others to host their speech or to tell them how they can make editorial and moderation decisions. That is an attack on their 1st Amendment rights. It would be nice if elected officials in Utah could understand this fundamental point behind the 1st Amendment. Tragically, that seems unlikely.
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Filed Under: 1st amendment, compelled speech, content moderation, michael mckell, spencer cox, utah
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'My imaginary rights beat your real ones!'
Free speech has never been shorthand for consequence-free speech, not has it ever included the 'right' to a platform to speak from, especially when that platform is being provided by someone who doesn't want you there.
Even the government, prohibited by the first amendment from attempting to prevent you from speaking or punishing you for doing so outside of very narrow exceptions is not obligated to provide a platform to speak from, so the idea that somehow privately owned platforms having rules and showing people the door for violations of those rules is somehow an attack on free speech is utterly and completely absurd, wrong at best if not a flat out lie by dishonest individuals.
Far from 'defending' free speech and the first amendment people like that are the ones attacking it, insisting that their fictional 'rights' to speak on their platforms of choice have priority and get to override the actual rights of platforms and property owners who don't want them around.
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A brief (copypasted) reminder
The First Amendment protects your rights to speak freely and associate with whomever you want. It doesn’t give you the right to make others listen. It doesn’t give you the right to make others give you access to an audience. And it doesn’t give you the right to make a personal soapbox out of private property you don’t own. Nobody is entitled to a platform or an audience at the expense of someone else.
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Sure seems odd that they claim free speech ...
But don't know the 1st Amendment itself.
I've had several conversations lately with repeated attempts to say/twist/whine/complain that their version of Free Speech is the correct one, while the one in The Constitution is wrong. Well, the 1st Amend is the only one that counts in an American court of law.
Also, quite the number of them suggest they will change it. Okay. You do you, but don't hold your breath. Or maybe you should.
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Re: A brief (copypasted) reminder
Or spoken in Old Republican, "Your rights end where my rights begin".
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"Censorship practices are un-American"
You were saying? https://www.techdirt.com/articles/20210322/07595646464/utahs-latest-porn-filter-bill-is-pointless-pe rformative-nonsense.shtml
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But it's clear that something must be done!
Maybe go out to dinner? Get a dog? Set yourself on fire?
Also: J Stuart Adams, president of what? He's another Utah legislator of various offices.
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It's the same "technicalities" as always.
Because, technically, the action was a clear violation of the Constitution.
If a bill is vetoed as unconstitutional, it was blocked on a "technicality."
If cops violate the constitution when they arrest and interrogate you, your conviction is tossed on a "technicality."
But it sounds bad to say, "Our cops and legislators don't respect the Constitution they are sworn to support, preserve and defend," so they call it a "technicality."
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Re: It's the same "technicalities" as always.
Of course, by "violate the constitution," in both cases I meant "infringe on your rights as a citizen and/or resident of the United States."
Which isn't that difficult to not do. I go entire weeks without violating people's constitutional rights, and I expect no less of public servants.
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What a fookin' dichotomy. Look at this first:
I'd dearly like to think that he's speaking to all of the values enshrined in 1A. Now look at this:
Nope, I was wrong, he's only interested in letting idiots spout off with every dumb thing from nonsense to hatred and vitriol.
See, here's the thing - TOG and Stephen have both hit it on the head, but just for drill, here's 1A in all of it's shining glory (bolding will lead to my point):
(I'm now speaking to cry-babies in general, which of course excludes 99% of Techdirt readers/posters.)
I'll not go into all the gory details, but in long-established jurisprudence, the courts have held that this business of "freedom to assemble" works both ways - you can join whatever association or organization you wish, and you cannot be forced to join any association or organization against your will. (The draft for armed forces being the sole exception.) Obviously, you'll have to meet any requirements set forth for joining, but the point is, the association or organization can't be forced to allow you to join, period. Even if you meet all of the entry requirements, you can still be turned down for... reasons. Private reasons, no questions asked.
All of this brouhaha about 'free speech' is just so much misdirection - it's really about assembling with others, which of course is the very definition of an association. Once inside the association, then speech can take place, providing the association's rules are followed (if any such exist). And guess what happens if you fail at rule-following? That's right Bunky, you get get to feel the door being slammed on your oh-so-sensitive butt cheeks. You should've followed the rules, Bunky, simple as that. But crying to the government about your ouster, or anyone else in what you hope will become the Court Of Public Opinion.... nyah, that' ain't gonna work out so well, trust me.
A funny little thing about censoring someone. It means, literally, that you're being warned that your current speech topic (or other behavior) is not acceptable to the rest of the association - but, and this is important, you aren't be shown the door - you're still a member. When you're thrown out, that's indicative not of censoring, but of ostrasization - an altogether different thing. It'd help your cause tremendously if you learned the difference, and applied yourself accordingly. Banging the kettle drum about "free speech" will get you a large dose of my ignoring you, res judicata.
One more thing:
In light of all I've written just now..... oh please, don't make me laugh, my gut is already in agony.
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Re: "Censorship practices are un-American"
'... unless we're the ones doing it. If we're the ones telling people what they can and can not say, see and not see, then it's perfectly fine.'
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It's an interesting dilemma...
Well then! What public square is that? What part of "private company" did they miss?
They can, though, create a "Utah Social Media" website, and learn the joys of content moderation from the inside. ... with the additional joys of the first amendment, since they would be an actual "government institution" and thus subject to limitations on their ability to restrict speech.
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Re: Re: 'My imaginary rights beat your real ones!'
Of all the articles for a porn-bot to slip through the filter...
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A sea of spam, trolls and horrible(but legal) content
Yeah, you can be damn sure that the people pushing bills like this will never put their money where their mouths are and actually create a government run platform, because it would show in a matter of days at most why moderation is absolutely vital and how insanely stupid the idea of letting all 'legally protected speech' run free is.
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If they were remotely honest about their intentions....
A near unconditional government hosting service (if you post actually illegal content like say child pornography it will be investigated, DMCA honored) with rates set approximately at cost would be a solution to the "stated problem" of large corporations being arbiters denying platforms. It would probably be a more expensive reincarnation of Geocities in practice and be kind of medicore but it would give what they say they want.
That they don't shows that it is an obvious pretense - frankly the fact they got elected in big budget processes shows that they cannot claim ignorance as an excuse - a moron would have gotten bested with twice the budget of their competitors because they don't know how to spend it properly. What they really want is control over other's First Ammendnent rights.
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No, what they really want is total control, i.e. absolute power, for all time to come. They are executing a two-pronged attack to achieve this: a) Stifle voting by any who aren't already a member of "the good ol' boys club", and; b) twist the meaning and intent of the Constitution and amendments to their own ends. The latter shows that they are following the Book Of Instruction, as written by George Orwell. Double-speak indeed.
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Re: Re: A brief (copypasted) reminder
"Or spoken in Old Republican, "Your rights end where my rights begin""
A dead language, that. Spoken these days only by a few liberals who remember Eisenhower.
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Re: Re: It's the same "technicalities" as always.
"I go entire weeks without violating people's constitutional rights, and I expect no less of public servants."
Ah, but that would make you a bleeding-heart commie liberal of dubious gender identity and sexuality today. Didn't you get the memo?
The US didn't just shift the overton window. They tossed it over the right edge of the cliff...
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Re: Re: Re: 'My imaginary rights beat your real ones!'
Hey I am a 💚nym︆︆pho 💋and I get turned on guys who I know little ...💋Oh .. I'm wai︆︆ting >> https://lst.to/d8rck
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Mike McKell blocked me on Twitter 7-8 years ago without any interaction. When local news did a story of people blocked by elected officials, he waived it off as "not being good at Twitter". At this point he's likely breaking the law by continuing to block critics. https://www.eff.org/deeplinks/2020/04/politicians-blocking-users-they-dont-twitter-are-violating-fir st-amendment-and
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Corporations exist ONLY by gov't / Public permission, TO SERVE.
Corporations are by definition NOT individuals...
BUT you juxtapose sentences as if corporations ARE "individuals" with Constitutional Right, but that's just trivially wrong. Corporations, as YOU related recently, are forced to speak (make reports), and indeed forced to host for the public good (Emergency Broadcast System, say: just one example disproves your absolutist assertion).
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Re: Even Maz admits above "both" have same view / goal.
Which "they" do you mean? Are you so steeped in your own propaganda bubble that can't see that YOU are regarded exactly as you write?
And do you NOT see the over-arching Rich / Globalists who are using your foolishness to get you to advocate controlling the specific "they" you speak of, and do you NOT see that The Big Real They will rule over you TOO?
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Yes, corporations are generally required to report certain sets of facts about their business dealings to the government. But that isn’t “compelled speech” in the sense that the government is making a corporation express or host speech with which it disagrees for no reason other than “the government says you have to do it”.
And yes, certain services are required to carry the Emergency Broadcast System (notably cable/satellite TV systems and mobile phone services). But the government requires all corporations operating within those fields to carry the EBS, not just one, and the services in question are “common carrier” services — which a social media service such as Twitter is not.
The government has no right, and should have no right, to make any interactive web service host any third-party speech of any kind. That goes as much for Twitter and Facebook as it does for a ten-person Mastodon instance, a shitpit like 4chan, or even a blog with open comments like Techdirt. Otherwise, the government could force your speech on this site — and I doubt you’d live through the anuerysm caused by the dissonance of simultaneously supporting your speech being forced upon Techdirt and decrying the government violating the First Amendment via compelled speech/association.
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We get it, you think Jewish people are the Illuminati who secretly control the world. Go back to Stormfront, Brainy.
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Re: Corporations exist ONLY by gov't / Public permission, TO SER
SCOTUS says otherwise, but we all know your position on the courts - they are only used by the elitist ivy league people to grind people like you into dust and you know better than the courts how the law works.
Ah, your usual style, conflating things. It seems you have a severe problem differentiating between obligations and rights, the two aren't interchangeable you know. Just to make it easier for you to understand, when someone incorporate something they also take on some obligations, like making financial reports available to the government and if you happen to be a broadcaster you may also be asked to carry the EAS (see USC 47 §11.11). None of this is forced speech, it's an obligation you take on when you incorporate (among other things).
It's not hard to understand, but people like thrive on not understanding simple things.
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Re: Corporations exist ONLY by gov't / Public permission, TO SER
Jeebus, oh, noes, you sure don't get it, do you.
The 14th Amendment greatly expanded the rights of citizens of all stripes, and it was ratified into law shortly after the Civil War to ensure that slavery would not again rear its ugly head. But it wasn't until 1886 that the USSC clarified, in Santa Clara County v. Southern Pacific Rail Road that corporations, being a creation of the state (at the behest of private citizens) were indeed entitled to those same Constitutional protections afforded to all other citizens. In effect, corporations became individuals, for want of a better comparison.
I trust that the cited source will put your mind at ease, and hopefully you'll understand that we all have to accept the USSC decision, like it or not.
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Re: Corporations exist ONLY by gov't / Public permission, TO SER
Food companies have to put nutrition labels on their products, so we should make Twitter host Nazis too because that's the same!
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Re: Re: Re: A brief (copypasted) reminder
Eisenhower is the image the party needs. Instead they have Captain Cockup.
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Re: Re: Corporations exist ONLY by gov't / Public permission, TO
People rely on food companies to make nutritious food, or at least safe for human consumption. Some food companies proved themselves incapable of even that basic standard, hence the need for regulation.
Do remember what I said in another post here on TD - in order to become a member of an association, one might be required to meet certain entry requirements. That same dictum extends to corporations-in-the-offing - they must meet certain entry requirements in order to join the citizenry of the USA. You and I bypassed those "requirements" simply by being born of a woman, but that little factoid doesn't make us any better than a corp, not in the eyes of the law. Don't get all righteous and superior, because while they may be on the same footing as you and I, legally speaking, they do have a whale of a lot more money to spend on lawyers. Forgetting that can bring unintended, and undesirable, consequences.
OTOH, Twitter does nothing to fulfill a human need, as does food, so human safety is not an issue that concerns anyone, let alone the government. I've gotten along for nearly 75 years without Twitter, or any other "big tech" social media, and I'm highly confident that I can and will continue to do so, until my final day. To reiterate: Twitter and other platforms of similar nature do not fulfill a basic human necessity - they are only play toys, and that's that. Speaking as an adult, I exercise my right to choose which toy(s) I will play with, based almost entirely on how good that toy makes me feel. (Hint: Techdirt is what I consider to be a "good" toy.)
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Re: Corporations exist ONLY by gov't / Public permission, TO SER
I need to ask: which corporations are you talking about in your Subject line? Certainly not the for-profit corps, eh? They exist only for one reason - to make a profit, end-of-story, signal 30, fini, and all that. Some of them do indeed interact with the public, preferably for a profit, but that's not necessarily "serving the public". But many, many corps are formed only to remain private, forever hidden from public view. What they do is beyond examination, but a quick review of your state's Secretary of State records for incorporated entities will reveal what I've just said to be the truth.
Now If by chance you're speaking of non-profit corps, then yes, they do have to serve a public need, and at various waypoints, they need to provide proof of having done so. That's the trade-off for being granted a tax-free status.
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Re: Re: Re: Corporations exist ONLY by gov't / Public permission
Please tell me you knew that was a joke... I was hoping I didn't need to make it explicit.
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FFS, sumgai...
...you are dense af.
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Re: Sure seems odd that they claim free speech ...
SCOTUS has massively changed what is and isn't protected over the years. The famous line about "shouting fire in a crowded theatre" came from a case banning sedition, very broadly, that has since been reversed. They've also backflipped on whether foreigners inside and outside the US have free speech, whether people in offshore territories have rights, and so on. The idea that companies have all the same rights as people has been slow to evolve too, so the "right" justices could "fix" the first amendment too.
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Re:
That looks like a misreading, albeit an officially endorsed one, or the first amendment. YOu'll notice that the things congress shall not do are separated by "; or", except the last one which is separated by ", and". ISTM that the correct reading is that free assembly applies only to an assembly to petition the government, not any organisation.
Even with the official reading, it doesn't give corporations the right to refuse to do business with classes of people, as shown by the Civil Rights Act and so on which are able to explicitly forbid such refusal.
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Re: Re: Corporations exist ONLY by gov't / Public permission, TO
Nothing in what you said gives any reason in principle not to make political neutrality a requirement of incorporation in some or all cases either (it is, for example, a requirement of charity status), except that some court clerk liked railroad companies and didn't like democracy.
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Re: Re: Corporations exist ONLY by gov't / Public permission, TO
Allowing anything to incorporate is supposedly because doing so is beneficial to society, even if the benefit is just "someone has a more convenient was to make money, which will hopefully make everyone richer". I suspect if you look at your state's law that allowed corporations without specific statutes you'll find such a statement in the preamble of the bill.
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Re: Re: Re: Corporations exist ONLY by gov't / Public permission
Based on current first amendment law, I doubt that would pass muster. It would infringe on the political speech rights of the corporation and, by extension, its members. Not to mention the practical nightmare of a government agency deciding what is and what is not "politically neutral".
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Re: Re: Re: Corporations exist ONLY by gov't / Public permission
Hmmm, methinks that you've forgotten about such things as "shell" corporations. They said they were for some purpose on their application, but then they disappear from society's radar, for all intents and purposes. And at least in my state, there's no requirement to file an annual form that says what they did last year in order to maintain their status as 'being beneficial to society'.
And we don't have an income tax, so looking over their shoulder via that avenue is out as well. And at least for us, B&O tax is exempted if your business doesn't handle revenues below a certain amount, so that's also out. It all adds up to making it difficult to catching bad actors, sad to say.
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Re: FFS, sumgai...
You made my point for me, thank you.
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Re: Re: Re: Re: Corporations exist ONLY by gov't / Public permis
No, nasch, I didn't "get the joke", and took your post seriously. If you're saddened, then we can only both lament that we can't use emoji's, or some other form of emotional icon that would put paid to our intent.
Us really old timers used to call them "smilies", and they worked a treat. Too bad that society has somehow decided to put them out to pasture, or neither of us would've had to reply to your OP.
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Re: Re: Re: Re: Re: Corporations exist ONLY by gov't / Public pe
I am old enough to still used smileys. And I thought about an emoticon or sarc tag, but decided (incorrectly as it turns out) that it wouldn't be needed.
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Re: Re: Re: Re: Corporations exist ONLY by gov't / Public permis
My point was that all corporations are supposed to exist for some public benefit, and thus it is perfectly fair and reasonable to regulate them to ensure that they are in fact beneficial to the public as a whole. The idea that the only purpose is to enrich the owners regardless of the impact on society is a bit like the way copyright investors are trying tot turn copyright from an incentive for authors into a permanent entitlement to rents on ideas.
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