Angry Anti-Masker Sues Joe Biden, Facebook, And Twitter Because His Social Media Was Taken Down For Disinfo
from the you-can't-be-serious dept
Another day, another truly silly lawsuit. The "Liberty Justice Center" and the Tyler & Bursch law firm -- both of which seem to specialize in filing ridiculous lawsuits -- have now filed a lawsuit on behalf of a disinformation-spewing anti-masker against Joe Biden, Surgeon General Vivek Murthy, Facebook, and Twitter... because Facebook and Twitter locked his account after he posted an image claiming (incorrectly) that "masking children is impractical and not backed by research or real world data."
The image, which you can find in the lawsuit, but which I will not post here, posts some stuff that is true but uninteresting (such as the fact that sometimes people wear masks improperly) with stuff that is out of context and misleading (such as that studies don't have conclusive answers yet about the effectiveness of masks for kids) to try to make a claim that masking kids is a bad idea. But, like so much misinformation, it's telling a story by cherry-picking a few points out of context. Actual credible sources have broken down why these claims -- repeated frequently by anti-maskers -- are basically bullshit. Yes, there remain some unknown things and inconclusive science (though the blanks will be filled in soon). But the really "scary" stuff about harming development are mostly bogus. Of course, this is the way most misinformation works: take things out of context that you can point to as true, pool them together with a few other things, slip in a few exaggerations, and claim a big picture, the implications of which are ridiculous and not supported.
That's what the graphic Justin Hart posted basically did. And, Facebook and Twitter both reasonably felt that it was spreading potentially dangerous misinformation about masks and children. So both services gave him a time-out. Facebook suspended him for three days for violating its community standards. Twitter locked his account for violating its rules.
Hart is suing Biden, Murthy and other government officials on the laughably bogus argument that the account suspensions were ordered by the US government. The argument is that because the White House did use its bully pulpit to get angry at Facebook for leaving up misinformation, that somehow makes the government responsible for the actions against Hart (even though those occurred before the White House statements). As we noted at the time, the White House's statements were pretty stupid and short sighted. But they did not, in any way, amount to evidence that the White House and social media were colluding to censor people. Indeed, the whole point of the White House's statements were that Facebook wasn't taking down accounts.
The claims in the case are, as expected, silly. First you get a state action claim.
Facebook and Twitter engaged in state action when they removed posts like Hart’s at the request of Murthy and Biden based on the viewpoint of those posts.
Facebook and Twitter worked in concert and/or conspiracy with Murthy and Biden to deprive Hart of his First Amendment right to Free Speech.
Murthy and Biden affirmed, authorized, encouraged, and/or facilitated Facebook and Twitter’s unconstitutional conduct of censorship.
Except, that's not what happened, at all. That's not how state action doctrine works. This is just silly.
Then, there's the claim that these companies violated Hart's free speech rights under the California Constitution. And, because every stupid content moderation lawsuit has to cite Pruneyard, so does this one. As a reminder, Pruneyard is a case about a shopping mall being required to allow speakers on the property, but the ruling and subsequent rulings have narrowed it down to the very, very, very specific circumstances of the Pruneyard Shopping Mall and basically nowhere else.
In Pruneyard Shopping Center, the California Supreme Court recognized that the suburban shopping center—even ones that are privately owned—are an “essential and invaluable forum for exercising” speech rights. 592 P.2d 341, 347 (Cal. 1979). The court reasoned that shopping centers are where most people “spend the most significant amount of [their] time in suburban areas where [their] needs and wants are satisfied” because “shopping centers provide the location, goods, and services to satisfy [their] needs and wants.”
And then the case misleadingly cites the other favorite, Packingham, which is limited to how the government cannot pass a law blocking people from the entire internet and has no impact at all on whether or not an individual service can kick someone off for violating terms.
The U.S. Supreme Court made a similar observation about the internet in Packingham, 137 S. Ct. at 1735. There, the Court compared social media to a “quintessential forum” for engaging in speech such as “a street or park.” It further found that the most important forum today for speech is “cyberspace—the ‘vast democratic forums of the Internet’ in general . . . and social media in particular.”
And with just those two barebones paragraphs, that ignore the realities of both cases, the lawsuit claims:
Because Facebook and Twitter provide an essential and invaluable forum for exercising Hart’s right to Free Speech under the California Constitution, they violated such right when they removed Hart’s posts and suspended his ability to speak on their platforms
Except, we've already done this and it's not how any of this works. As the 9th Circuit pointed out in the PragerU case:
PragerU’s claim that YouTube censored PragerU’s speech faces a formidable threshold hurdle: YouTube is a private entity. The Free Speech Clause of the First Amendment prohibits the government—not a private party—from abridging speech. See Halleck, 139 S.Ct. at 1928 (the Free Speech Clause “prohibits only governmental abridgment of speech,” and “does not prohibit private abridgment of speech”); Hudgens v. NLRB, 424 U.S. 507, 513 (1976) (“the constitutional guarantee of free speech is a guarantee only against abridgment by government, federal or state”). PragerU does not dispute that YouTube is a private entity that operates its platform without any state involvement.
These are not antiquated principles that have lost their vitality in the digital age. In Halleck the Supreme Court considered whether a private entity that operates a public access channel on a cable system is a state actor. 139 S. Ct. at 1926. The plaintiffs tested a theory that resembled PragerU’s approach, claiming that a private entity becomes a state actor through its “operation” of the private property as “a public forum for speech.” Id. at 1930. The Court rejected this argument. Such a rule would eviscerate the state action doctrine’s distinction between government and private entities because “all private property owners and private lessees who open their property for speech would be subject to First Amendment constraints.” Id. at 1930–31. Instead, the Court reaffirmed that “merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints.” Id. at 1930.
Importantly, private property does not “lose its private character merely because the public is generally invited to use it for designated purposes.” Lloyd Corp. v. Tanner, 407 U.S. 551, 569 (1972). YouTube may be a paradigmatic public square on the Internet, but it is “not transformed” into a state actor solely by “provid[ing] a forum for speech.” Halleck, 129 S. Ct. at 1930, 1934.
Notably, the Hart filing does not mention the PragerU ruling. Perhaps because it debunks every argument here.
There is another claim that is even dumber than those first ones. Count IV claims that Facebook and Twitter "committed promissory estoppel by not fulfilling their promise for Hart to use their platform for his business."
Facebook and Twitter made “a clear and unambiguous promise” to Hart that he could use their services to communicate and network with other Facebook and Twitter users
Except, no, they didn't.
Facebook and Twitter did not caveat this promise by announcing that they would censor speech opposing masks.
They absolutely did. Both services include terms of service that Hart agreed to, which make it clear that he can be suspended for violating community standards and terms of service, and may have content removed for basically any reason at all.
I can only imagine that Hart's very silly lawyers pulled out this laughable argument after looking at the infamous Barnes v. Yahoo ruling, in which someone got around Section 230 because an employee at Yahoo promised to takedown some content. The court basically said that once the company promised to do that, its failure to violated that promise and that took precedence over Section 230. But that was a direct promise from an employee. Hart totally misreading (if he read at all) the terms that he agreed to is not a promise to let him spew misinformation.
There are also the usual padding claims about "negligent interference with a prospective economic advantage" and "intentional interference with a contract" which have no chance. The only claim in the lawsuit that is actually reasonable (though not very interesting) is the claim against two government agencies -- Health & Human Services and the Office of Management and Budget -- for failing to respond to his FOIA request in the 20 business days required by law. Of course, as we well know, FOIA requests often take years, but you can sue after the 20 days to try to force the issue -- so that claim seems to be the sole legit claim here, but the only remedy would be expedited processing of his FOIA request and nothing else.
This lawsuit may be useful for fundraising campaigns and silly pandering about how much of a "victim" Hart is, but it's not a serious legal complaint and the courts are likely to treat it with exactly the level of respect it deserves.
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Filed Under: 1st amendment, common carrier, content moderation, free speech, joe biden, justin hart, promissory estoppel, vivek murthy
Companies: facebook, twitter
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Lawsuit as Fundraising tactic…
Basically this. These lawsuits are done by bad-faith grifters so they can "take on the socialist dumb-o-crats and big tech" to raise money rather than win a case (unless they forum-shop for a really bad circuit).
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I wish for all idiots (anti-maskers, anti-vaxxers) good luck in achieving their Herman Cain Awards.
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I would lay good money that his FOIA, was for communications between OMB/HHS and Facebook/Twitter, ordering the takedown of his post, and they didn't respond because there weren't any to find.
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I wish people would learn to understand the internet.
I wish courts/bars would beat the crap out of lawyers filing these.
I wish the penalties would equal the amount these idiots manage to fundraise.
I haven't seen something this stupid since the plaintiff listed her dog as a witness.
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Is he serious? yes. Yes he is.
Is it ANY surprise?
that when one raises a child to realize that all they have to do is WHINE TO THE TOP OF THEIR LUNGS! which started with one breaking her neck to run to the child EVERY time the infant even slightly whimpered;
That this is what you receive in adulthood.
Those who still act as a child, expecting their temper tantrums will get them EVERYTHING that they want,.. since it worked sooooo well in their infant-/childhood.
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Re: Is he serious? yes. Yes he is.
Sounds like somebody has an axe to grind.
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Ah maskholes, where deadly meets deadly stupid
'How dare they not want to host deadly misinformation, I'm telling my dad/lawyer on you and he'll make you put my stuff back!'
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So... combining this article's viewpoint with the PETA story, does this mean that, although the government cannot censor comments on their Facebook page, it would be perfectly legal for them to ask Facebook to do it themselves? If so, that seems kind of bizarre.
And this lawsuit doesn't mention this that I saw, but when the government is calling tech executives into hearings and threatening antitrust action, any "requests" concurrently made take on a different tone.
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Re:
"it would be perfectly legal for them to ask Facebook to do it themselves?"
Provided that the official who is doing the request isn't using the power of the government to pressure the private company, yes.
In other words the security at the Capital can use Facebook's report feature as much as they want just like anyone else.
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Re:
You've apparently missed all the posts which directly discuss your question. Like the Liz Warren (again) one from just yesterday.
So maybe combine that.
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My moderation brings all the prunes to the yard.
that claim seems to be the sole legit claim
Is it though? Shouldn't that be its own suit?
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This article makes a number of bias statements
While I have not read through the filing for this case, your article makes a number of bias statements.
First it treats "misinformation" as if it was an appropriate reason to block a public forum - even though these companies are private, they misrepresent the protections they have under 47 US Code Section 230, and definitely are violating the purpose of that code "to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools".
Second it misrepresents the state doctrine. Manhattan Community Access Corp. v. Halleck, No. 17-1702, 587 U.S. ___ (2018) states a three point rule, and the third point is "... a private entity can qualify as a state actor in a few limited circumstances... (iii) when the government acts jointly with the private entity"
-- University Of Minnesota, Center for Infectious Disease Research and Policy, COMMENTARY: Masks-for-all for COVID-19 not based on sound data: https://www.cidrap.umn.edu/news-perspective/2020/04/commentary-masks-all-covid-19-not-based-sound-da ta
-- Comment 8 and responses to a pro-mask pre-print that shows the vulnerabilities with the pre-print's logic (and points out the mechanics of masks for the SARS-Cov-2 coronavirus, which has the same mechanics as the influenza virus - both being similar sizes - using an underlying study published by both the CDC and the World Health Organization [the links to both of those articles are embedded in Comment 8]): https://www.preprints.org/manuscript/202004.0203/v2#comment-3322
I liked your article on the Verve and Bittersweet Symphony, but this article is not an honest reflection of the issue, but appears to be fairly biased.
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Re: This article makes a number of bias statements
See: Hello! You've Been Referred Here Because You're Wrong About Section 230 Of The Communications Decency Act
That ruling is about public access television that relies on channels leased from the government. What was that about cherry picking things again? And that's not relevant?
It doesn't misrepresent, that's what you are trying to do. Masks help, to what degree is debatable - but everyone with a brain are agreeing that it's better to be safe than sorry, ie use masks. It's also kind of interesting that nowhere in the studies is it suggested that you shouldn't wear a mask... Why is that?
It's almost like you think masks are bad... Is that you Hart?
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Re: This article makes a number of bias statements
That this piece has bias (which is of course perfectly fine) is obvious by the use of “spewing”.
A good rule of thumb is to discount any arguments made by an author using that term, for it has no purpose other than signaling a value judgement (again, totally cool) and calls into question the writer’s motives and objectivity.
Not that objectivity is required or appropriate, necessarily, but one can easily see through any attempt at such by the use of such terms.
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Re: Re: This article makes a number of bias statements
Hi Rocky,
Thank you for your comments, I appreciate the time you took to respond.
Well, there are a number of statements that I disagree with in that article from a legal perspective. It is not only 47 USC Section 230(c) that the court looks at (and let's remember that Ted Cruz, no matter what you think of him, is a Constitutional lawyer that has successfully argued numerous cases before the high court). It is a central tenant of law that to determine a law's meaning you contrast what the law was before, the intent, and the wording. 230(a-b) provides the intent. 230(c) specifically only covers "good faith" actions. 230(c) does not protect against 230(e) stated criminal actions, intellectual property, privacy laws, laws on sex trafficking, consistent state law, and 230(b)(5) specifically iterates that criminal laws are not off limits with 230(c). States could challenge 230(e)(3) for cases that are not interstate commerce, and aspects that apply within their state. When it comes down to it 230 does not provide immunity to the actual creator of the content, or the author of a defamatory statement. The court has tended to uphold editorial aspects of third-party content, however only if it substantially does not alter the meaning of the original statements. Even Congress does not have power to create law that abridge either the 9th or 10th amendment aspects in regards to freedom of speech in what has become a public forum (and by virtue of the sheer technology reliance that these companies have developed around themselves that are almost required in order to use other platforms and services it definitely can provide a person with a damage claim, where they have had their account shut down or suspended, regarding standing at minimum). In other words, in my estimation there is a constitutional speech case that could be made, as well as a 230 case for "bad faith" suppression. In addition to the public forum aspect applied to "bad faith" suppression, the anti-trust laws for instance are partially criminal laws (and would also apply - that may be apparent, but I thought I would state it for completness).
The section that I referenced in Manhattan Community Access Corp. v. Halleck, No. 17-1702, 587 U.S. ___ (2018) was of the majority outlining the state doctrine (no matter what type of case it is). They then went on to outline the case. Here I only needed to reference their legal outline of state doctrine, and in this case the third point that "... a private entity can qualify as a state actor in a few limited circumstances... (iii) when the government acts jointly with the private entity". While I think the headline is not as professional as it could be, if stories like this one from the Hill are true, then there has been collusion between the administration and certain social media platforms regarding speech (particularly where users are not just experiencing a flag, but account removals or shutdowns for speech):
At that point, the social media company, under the state doctrine, would be a government actor, and Section 230 would not apply - it would be considered a government suppression of speech.
In addition, section 230 must continue to survive Constitutional scrutiny, the provider must meet the obligations under 230(d) (which in most cases does not happen - at least with the intent of (d)), and there are limitations to section 230 (both within the law, and Constitutionally).
Yes, I do think to mandate masks for everyone is bad. It is bad public policy, heavy handed mandates that governmental authority have used (or attempted to use in some circumstances) have abused certain aspects of their authority and has not been helpful to securing either Natural Law or Constitutional freedom, and the effectiveness of masks is not supported by randomized control trial evidence, and masks for all of society up until last year was never seriously posited by epidemiologists (particularly many outside the U.S.). Epidemiologists have up until last year supported common sense, which was to encourage, not mandate, that the vulnerable protect with mitigation efforts - as imperfect as they are.
That said, I posted two links to academic research. Particularly, the second link listed in my previous post mentioned the meta-study which the CDC and World Health Organization published, that reviewed all mask studies from 1946–July 27, 2018. Their conclusion was that, with the exception of certain N-95 masks, although mechanically it may be helpful there is no evidence that it actually works (and even then there are issues with the mechanics which were pointed out in both links that I listed in my previous comment) - on that basis of "it might help" they recommended it in non-developing countries (due to cost). The mechanics of the influenza virus and SARS-Cov-2 are the same (they are basically the same size), and yet both in size and in aerosol aspect they are less than the filtering aspects of non-N95 masks (and even then of N-95 masks that do not have an exhaust port). Here are the actual links to those two articles if you would like to review them:
Xiao J, Shiu E et al., Non-pharmaceuticalpublic health measures for mitigating the risk and impact of epidemic and pandemic influenza, World Heath Organization (Oct 2019), ISBN 978-92-4-151683-9: https://apps.who.int/iris/bitstream/handle/10665/329438/9789241516839-eng.pdf
I realize there are other studies that seem to make a different hypothesis, and I have spent time researching them, however I personally have not found them to be convincing, but mainly found them relying on assumptions and newer research that does not tend to be randomized control trial evidence (or it has not been reviewed for bias, a common step in meta-reviews).
Please feel free to pass along any randomized control trials, that are after the time period mentioned in the CDC and WHO study - I would be honestly interested.
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Re: Re: This article makes a number of bias statements
You should discount arguments because of their merit, not because the author used a word you don't like.
There's also no attempt at objectivity here. The very first line of the article reads: "Another day, another truly silly lawsuit". He's very clear about his attitude towards this.
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Re:
FWIW, the government still has to respond to FOIA requests in such circumstances, even if only to say that there are no responsive documents.
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Re: Re: Re: This article makes a number of bias statements
What is "bad faith" suppression? If someone kicks you out of their property because you say something the owner doesn't agree with, is that "bad faith" suppression? When you use someone's private property you follow their rules, it's as simple as that. The owners of a social media can be as biased as they want in their moderation decisions, nowhere is it said that they have to be neutral in how they decide what they allow or not. Saying that they must carry speech they don't agree with is the same as saying that they don't have any 1A rights.
If we follow that reasoning to its logical conclusion, any private company that follows recommendations or suggestions from the government becomes a state actor. The word "jointly" that's used in rule three is supposed to mean that when the government exercise's a right, imposes a rule or otherwise with the help or behest of private party to deprive a third party, the private party becomes a state actor:
In order for the Supreme Court of the United States (Supreme Court) to find state action, a two-part test must be satisfied. First, the deprivation must be caused by the exercise of some right or privilege created by the state, or a rule of conduct imposed by the state, or by a person for whom the state is responsible. Second, the party charged with the deprivation must be a state actor by virtue of being a state official, by acting together with or getting significant assistance from a state official, or because his conduct is otherwise attributable to the state.
And 230(c)(2) still says that they are entitled to moderate things they find objectionable which means that 230(d)(3) have no bearing on how a service is moderated: 230(d)(3) State Law Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.
So, is it still bad if a mandate actually stopped just one person from contracting COVID and dying because if it? The US has a deathtoll close to 700,000 people currently, if just 1% or 0,1% of those could have been saved by an early mask-mandate, are the inconvenience of wearing a mask not worth it? It's not like the government have issued mandates and created laws before COVID in the interest if the public good. For a comparison how stupid people are, we can go back to the 70's and how the idiots screeched about how forcing them to wear seatbelts infringed their rights and how uncomfortable and restrictive the belts where.
So you cherry-picked studies that supported your argument and discarded the rest, I don't think you should talk about bias then. Here is another study about mask effectiveness and how it affects COVID spreading in communities that clearly show that masks helps reduce the spread:
https://jamanetwork.com/journals/jama/fullarticle/2776536%C2%A0
If one look over all the studies one thing is clear, masks isn't a perfect solution but they actually help reduce the spread - how much is debatable. Even the studies you linked to actually says that wearing masks is usually a good idea.
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Re: Re: Re: This article makes a number of bias statements
False. Only §230(c)(2)(A) is limited to “good faith” actions.
§230(c)(1) covers any attempts to treat interactive service providers and users of such services as publishers for third party content they themselves did not develop, including most but not all moderation decisions, and it has no exception for actions not taken in good faith. §230(c)(2)(A) covers moderation actions taken in good faith against content they believe to be objectionable, either by users or by the service providers. §230(c)(B) covers the provision of tools to users in order to moderate content.
Of these, “good faith” only appears in §230(c)(2)(A), and every case that has ruled on the issue has said that it doesn’t apply to §230(c)(1) or §230(c)(2)(B). On top of that, in most cases regarding whether or not some moderation decision is immunized by §230 aren’t decided based upon §230(c)(2)(A) but based upon either definitions or §230(c)(1), which do not have the “good faith” requirement.
Only partially true. §230(c) doesn’t protect against federal criminal actions, but it does against state criminal actions. And by “consistent state law”, it only includes laws consistent with federal laws and the Constitution (except IP, privacy, and sex trafficking).
We’re dealing with the internet here. It’s basically all interstate commerce. Also, I have no idea what you mean by “aspects that apply within their state”. It sounds like you mean “the aspects of §230 that apply to their state”, but that would completely defeat the purpose of §230.
This is true. It also has nothing to do with anything said thus far.
Neither the 9th nor 10th Amendments apply to freedom of speech at all. The 9th—which is almost never used at all—refers to rights not specifically mentioned in the Constitution still existing. The 10th is about states’ rights. Neither are applicable here, and neither involve freedom of speech, so bringing them up makes no sense.
As for the public forum argument, recent court cases have explicitly refuted the claims about things like Twitter and Facebook being public forums subject to 1A restrictions, and it’s not particularly relevant to §230.
Again, only §230(c)(2)(A) has an exception for “bad faith”, and most cases involving §230 are decided based on §230(c)(1). Also, as mentioned, only the 1A (with an extension from the 14th) deals with freedom of speech, and that amendment’s restrictions do not apply to Twitter or Facebook in these conditions. These are well established in current case law.
Anti-trust is not at issue in this case, so that’s irrelevant.
Which isn’t what happened here, and cases prior to and after Manhattan have rejected the contention that the government making such comments transforms a private entity into a state actor.
§230(d) states, in full:
This isn’t a qualification on §230(c). This is an independent requirement for providers of ICSs to notify users that parental control protections exist and either who are or where to find current providers of such protection. Nowhere does it say that the protections from §230(c) are conditioned on compliance with §230(d).
Also, as far as I am aware, most of the major ICS providers (like Google, Facebook, and Twitter) actually provide parental control protections and notify users of their existence, which I’m pretty sure meets the requirements of §230(d).
So basically, §230(d) is irrelevant here. I’ve also explained that the Constitutional and internal restrictions don’t apply in these cases.
It is helpful to securing public health, which is also a goal for the government.
As you have already been told, this is completely false.
That’s because up until last year, we didn’t have a massive pandemic. That’s why it wasn’t seriously posited by many epidemiologists before then; there wasn’t any compelling reason for all of society to wear masks until COVID-19 came. Additionally, if enough people had vaccinated, we wouldn’t need to mask “all of society” right now.
That’s only partially true, and again ignores that the reason why epidemiologists changed their tune last year was because there was suddenly a pandemic that changed the risk-reward analysis of the whole thing.
As for why it’s only partially true, that statement is outright false when it comes to vaccines, which have long been mandated. Again, if more people had vaccinated like they were supposed to, we wouldn’t need these mask mandates.
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They could block someeone from every other part of the service while still allowing them to participate in designated official discussions which are uncensored and open to everyone.
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Re: Re: Re: Re: This article makes a number of bias statements
Hi Rocky,
Thank you for your thoughtful comments.
It would include aspects that violate the intent of 47 US Code Section 230 at minimum. According to Wex Legal dictionary bad faith is "A term that generally describes dishonest dealing. Depending on the exact setting, bad faith may mean a dishonest belief or purpose, untrustworthy performance of duties, neglect of fair dealing standards, or a fraudulent intent." Black's defines it as "[t]he opposite of `good faith,' generally implying or involving actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive." Black's Law Dict. 139 (6th ed. 1990). When a legislature does not specifically define a term, they are leaving it to the court, or a jury, to use the intent, legal history, or precedent. This is why it is a much better practice to actually define the terms. However, "bad faith" would have a legal historical understanding to draw upon.
As you point out from Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922 (1982), it applied a two part test for "fair attribution" to "(a) the deprivation must be caused by ... conduct imposed by it or by a person for whom it is responsible and (b)... or because his conduct is otherwise chargeable to the State". This was consistent with how the court summerized it in Manhattan Community Access Corp. v. Halleck. However, it would also ignore that the court has used a number of situations to determine state action. Here are two legal reviews:
I agree that as the law is written states may enforce their own laws as long as they are consistent with section 230. That is a fair point. However, I would point out that just because Congress writes a law that limits the state's action does not mean it is Constitutional. I am not sure that a case could not be made that this violates State's rights with the exception to those portions that are attributable to interstate commerce (and there may be areas that are not attributable to interstate commerce). Any state has rights, if they feel the law is abusive to their own rights, to create law, apply it, and then defend it before the court on Constitutional grounds.
Our Constitutional democratically styled republic specifically deposits the authority for government ultimately in the people (of to the people through their states for the federal government). The people assign rights to government during good behavior, otherwise they may revoke them through their representatives. Government actors have to work within the authority they have, not those they do not have. There are limitations to emergency powers, and most of these limitations were overstepped in this last year in some state in this country. If a mandate oversteps governmental authority, then No, I do not believe it is justified even if it stopped one person from contracting SARS-Cov-2, or the bacterial respiratory disease (pneumonia) Covid-19 afterwards. I do believe however, that people should act as they best determine to protect themselves, and where mitigation efforts may be helpful, as imperfect as they are, they should feel free to employ them. This wades into the law, and jurisprudence surrounding isolation, quarantine, and what constitutes justification of emergency powers, and where and how far governmental interest may apply (if at all in certain circumstances). While I may concede that masks may fit under a temporary governmental interest where it is actually justified and meets scrutiny, particularly for states, there are other actions outside of masks that have happened that I do not believe meets scrutiny.
I noticed that the study does mention one randomized control trial (non-double blind) after 2018. Thank you, I will read through it more fully to consider its points. However, I would note that the randomized control trial that the article relied upon surgical masks (which the CDC and WHO articles that followed the meta-study I mentioned also mentioned some support for). That article mentioned "Although no statistically significant difference in SARS-CoV-2 incidence was observed, the 95% CIs are compatible with a possible 46% reduction to 23% increase in infection among mask wearers. These findings do offer evidence about the degree of protection mask wearers can anticipate in a setting where others are not wearing masks and where other public health measures, including social distancing, are in effect. The findings, however, should not be used to conclude that a recommendation for everyone to wear masks in the community would not be effective in reducing SARS-CoV-2 infections, because the trial did not test the role of masks in source control of SARS-CoV-2 infection..."
Thank you again Rocky for the discussion.
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Re: Re: Re: Re: This article makes a number of bias statements
Thank you bhull242 for your comments.
I think much of what you wrote, and I would respond to, would be contained in my response to Rocky above.
I will concede though that you are correct, the "good faith" language is applied to 47 USC Section 230 (c)(2)(a), rather than generally to all of 230(c). However, I 230(c)(2) states "any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1)". This would only apply to actions taken to enable or make available technical means for the user / ICP to restrict their own access to materials.
Section 230 may be federal law, but all law is open to Constitutional challenge, and if 230 fails the challenge, or it is applied in an unconstitutional manner, that is always open for challenge. For instance, there were particularly egregious sections of the Federal Election Campaign Act which the court later stripped, in regards to speech, because it infringed on Constitutional protections.
They certainly do. The preamble to the Bill or Rights states that they were declaratory statements to restrict the federal government (no matter what powers they construed, these were explicitly stated as not granted to government). The 14th amendment is generally read these days to apply the 1st Amendment to states as well. Each state constitution also has religious freedom protections. If the government does not have the right to infringe, and the state does not have right to infringe, either by Natural law, or by Constitutional law, then the 9th and 10th amendments do certainly apply to explicitly then protect those rights to the people. While a private company may provide a service, once they enter commerce, that service can also be deemed a public forum (just as the author quoted from in Pruneyard as an example).
I have now pointed to multiple academic articles or meta-studies (including one that was published by the CDC and WHO). If you would like to state otherwise, listing randomized control trials after 2018 would be helpful (as Rocky has done). It is a principle of Philosophy and argument that if two experts disagree (in this case those within Epidemiology, and related fields), then it is best to suspend judgment until you are able to consider all the evidence. Experts are not to be relied upon because of their "expertise" (that is the lowest medical form of evidence), but because their expertise should enable them to convincingly outline the actual evidence itself.
This is not the first pandemic, and it certainly will not be the last. Taking an honest look at the reasons behind the shift has lead me to the conclusion (at this point) that it has not been based upon the actual field itself, or actual evidence, but instead upon ideology and assumption (and in most cases ideology outside of the medical and epidemiological field). It has rested upon the assumption (which I will state as an assumption), that attempting to flatten the curve would actually work, that people could preform mitigation efforts flawlessly, and that we would actually develop and approve a vaccine that would work. This last point is an interesting one. Normally we have relied upon natural immunity, and the use of a general prophylactic to try to create wide spread immunity can actually work in the opposite direction and cause Antibody-dependent Enhancement (ADE). ADE is one of the reason we have not been able to create successful vaccines against other coronaviruses - including genetic vaccines. Here is one expert in the field who has warned explicitly about this:
Thank you again for taking the time to comment and for the reflective information.
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Re: Re: Re: Re: Re: This article makes a number of bias statemen
Let me clarify my statement: "Normally we have relied upon natural immunity, and the use of a general prophylactic to try to create wide spread immunity can actually work in the opposite direction and cause Antibody-dependent Enhancement (ADE)".
It would be more precise to say: Normally we have relied upon both natural immunity and to some degree to vaccines to reach the target immunity level, and the wide spread use of a general prophylactic to try to create wide spread immunity can actually work in the opposite direction at times and cause Antibody-dependent Enhancement (ADE)
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Let me make a clarification to my comment above on the Henning article. After re-reading my comment regarding the Henning study, I think my point may have not come through.
Although the Henning RCT does suggest "The findings, however, should not be used to conclude that a recommendation for everyone to wear masks in the community would not be effective in reducing SARS-CoV-2 infections, because the trial did not test the role of masks in source control of SARS-CoV-2 infection..." they base this on the fact that "During the study period, authorities did not recommend face mask use outside hospital settings and mask use was rare in community settings (22). This means that study participants' exposure was overwhelmingly to persons not wearing masks." I can receive this as an opinion (or as the authors stated, a suggestion, but it is not conclusive from their study, and they admit as much). As the study also stated:
As pointed out, this randomized control trial also dealt with surgical masks (and mentioned N-95 masks), which the studies I mentioned also found some evidence for. However, the masks we are using are not surgical masks, and we are not surgeons trained not to touch our faces and always keep the mask in its correct position at all times. The study did deal with home use though, and that point I will concede.
The authors then state:
"Thus, these findings do not provide data on the effectiveness of widespread mask wearing in the community in reducing SARS-CoV-2 infections."
Again, the assumption behind the author's suggestion, and the motivational basis for their study, is that mask use for the full general population would help to end the pandemic for the general population, rather that what it has traditionally been recognized to do, which is to provide an help, as imperfect as mitigation efforts can be, to the vulnerable individual, while infections (cross immunity, and vaccines where available) work among the non-vulnerable to provide natural herd immunity and bring an end about for the pandemic aspect.
Just wanted to clarify.
I am still looking forward to reading through the article with more reflection. Thank you again Rocky for providing the article that linked to this RCT.
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... and why would they want to host a cesspit like that as opposed to simply telling users 'follow our rules or find another place to post'?
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"Help me, Lostinlodos. You might not be a Republican, but you're a Trump supporter and you're my only hope."
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Re: Re: Re: Re: Re: This article makes a number of bias statemen
Re "bad faith":
If Facebook says "we will moderate posts and possibly block users that promotes the idea that masks doesn't help because we consider that misinformation", that's not bad faith. The rest of your explanation about bad faith is far outside the context for what we are discussing, ie how social media moderates content they disagree with. At no point will this in any way violate section 230.
And when people act in a manner that actually spreads a disease with a fairly high mortality rate to other people around them, I do wonder why reckless or even wanton endangerment isn't on the table for that. It's funny when any other manchild does something that endangers other people, people call the police or complain why there isn't a law stopping them - but now that we have a pandemic it suddenly becomes a constitutional issue for telling people to wear a mask. This whole debate about masks is ridiculous for the simple reason that almost all the people resisting wearing masks are egotistical idiots who fell for the words of a grifter.
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Hi Rocky,
You asked what would be considered "bad faith", and I gave you a legal outline of what would constitute "bad faith". Let's just suffice to say that for the reasons I already outlined above, I do not see Section 230 legally as you seem to apply it (and I do not believe that the law narrows down only on 230(c) for practical legal purposes - it is within the context of the whole section, and 230(c) also takes on that context).
What a social media company may have in its terms of service or not are one thing (contractually), however whether it meets up to the provisions of 230 are another. As the author pointed out in
Pruneyard, even private spaces can be considered public forums.
In addition, a governmental connection is at issue in this case. As mentioned above in the court's recounting of the state doctrine "... a private entity can qualify as a state actor in a few limited circumstances... (iii) when the government acts jointly with the private entity". If the social media company, under the state doctrine, has meet the definition of a government actor, then Section 230 would not apply - it would be considered a government suppression of speech.
In regards to the mandates: Prior to 2020 nothing on the scale we has been attempted through mandates (definitely not in my life, and not in the history I have reviewed, at least in the United States). There is a big difference between passing a law on something (which has deliberation), and having an administration official making daily decisions with the force of law. Yes, emergency powers are outlined in current law, and are triggered when an appropriate situation occurs that is outlined in the law, but these types of law are meant to provide temporary and necessary provisions for short periods of time, not the broad abuses we have seen (and provisions that are beyond temporary, and at this point are vying for permanent status).
The whole of the response in 2020 rested on the assumption that what was done in the name of mitigation was actually necessary. That in itself came with some large assumptions. In regards to isolation and quarantine, laws require officials to show that the person was sick, or had been exposed to a highly infectious and highly fatal disease. If you claim that SARS-Cov-2 meets the "necessary" and "great danger" standards, then may I remind you that the case fatality rate (deaths / cases) nationally is at 1.5% (or to put it another way, 98.5% of people, nationally, will recover). The infection fatality rate is even lower ( https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7482102/ ). I do concede that regionally there will be different case fatality rates from one region to another. Although the court has outlined broad doors in Gibbons v. Ogden (1824) and Compagnie Francaise de Navigation a Vapeur v. Louisiana Board of Health (1902), what we are seeing (in actual evidence) is not the kind of public crises that may pass the legal hurdles for temporary emergency measures - hurdles that are there to protect our rights. Jacobson v. Massachusetts (1905) stated that part of that governmental interest which must be present is that it is "necessary for the public health or safety" and that the community is "under the pressure of great danger." From the actual evidence this virus does not actually meet that definition, any more than SARS-Cov-1, or any more than some of the influenza virus pandemics have (even though there are some differences in how the two coronaviruses respond). Constitutional issues such as religious freedom, etc., would be required for accommodation for emergency, or normal, law to survive any long term challenges. From a public policy standpoint, forcing a situation that is not properly justified will always eventually lose support, and will meet resistance (and for good reason - the place that government dictates and micromanages our choices, using the cover of emergency, rather than follows the deliberative process, it is no longer serving us). The major point here, to sum up on this paragraph is that there is a difference between having mandates in the hands of a few government officials, and having the deliberative process of making law.
I would say from the evidence that I have studied so far, it appears that there was not support for wide spread mitigation efforts (everyone), but rather, as it always has been traditionally, the support was for mitigation efforts for individuals that are vulnerable. This allows the non-vulnerable to quickly gain immunities in a way that is generally considered safe.
I am sorry that you feel that I am an egotistical idiot, but if being honest with evidence, common sense approaches, and protection of freedom makes me that in your mind, I will wear it as a badge of honor.
Thank you so much Rocky for the discussion. I hope you have a great day today.
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"
By contrast, when a private entity provides a forum for speech, the private entity is not ordinarily constrained by the First Amendment because the private entity is not a state actor. The private entity may thus exercise editorial discretion over the speech and speakers in the forum. This Court so ruled in its 1976 decision in Hudgens v. NLRB. There, the Court held that a shopping center owner is not a state actor subject to First Amendment requirements such as the public forum doctrine....
The Hudgens decision reflects a commonsense principle: Providing some kind of forum for speech is not an activity that only governmental entities have traditionally performed. Therefore, a private entity who provides a forum for speech is not transformed by that fact alone into a state actor. After all, private property owners and private lessees often open their property for speech. Grocery stores put up community bulletin boards. Comedy clubs host open mic nights. As Judge Jacobs persuasively explained, it “is not at all a near-exclusive function of the state to provide the forums for public expression, politics, information, or entertainment.
" and "
In short, merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints.
If the rule were otherwise, all private property owners and private lessees who open their property for speech would be subject to First Amendment constraints and would lose the ability to exercise what they deem to be appropriate editorial discretion within that open forum. Private property owners and private lessees would face the unappetizing choice of allowing all comers or closing the platform altogether. “The Constitution by no means requires such an attenuated doctrine of dedication of private property to public use.” ... Benjamin Franklin did not have to operate his newspaper as “a stagecoach, with seats for everyone.” ... That principle still holds true. As the Court said in Hudgens, to hold that private property owners providing a forum for speech are constrained by the First Amendment would be “to create a court-made law wholly disregarding the constitutional basis on which private ownership of property rests in this country.” ... The Constitution does not disable private property owners and private lessees from exercising editorial discretion over speech and speakers on their property
" - <https://www.techdirt.com/articles/20190617/16001942415/supreme-court-signals-loud-clear-that-soc ial-media-sites-are-not-public-forums-that-have-to-allow-all-speech.shtm> and <https://blog.ericgoldman.org/archives/2019/11/state-court-rejects-prager-universitys-lawsuit-aga inst-youtube.htm>
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Re: This article makes a number of bias statements
While I have not read through the filing for this case, your article makes a number of bias statements.
It's an opinion piece. And my opinion is that this lawsuit is frivolous nonsense. And that your comments here are uninformed garbage.
First it treats "misinformation" as if it was an appropriate reason to block a public forum - even though these companies are private, they misrepresent the protections they have under 47 US Code Section 230, and definitely are violating the purpose of that code "to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools".
This is false. As the very authors of Section 230 have noted repeatedly, the intent of the law was to allow websites to moderate as they see fit and that the end result of different websites moderating in different ways that were appropriate to the communities they were targeting, that was how they would maximize the situation in which individuals could have control over what information was received. You are misrepresenting the intent of Section 230 (and reading way too much into your misreading). Thankfully, the courts have debunked this view.
Second it misrepresents the state doctrine. Manhattan Community Access Corp. v. Halleck, No. 17-1702, 587 U.S. ___ (2018) states a three point rule, and the third point is "... a private entity can qualify as a state actor in a few limited circumstances... (iii) when the government acts jointly with the private entity"
Lol. Halleck also makes it crystal clear that Facebook is not a state actor. First, it says that state action doctrine is limited to situations in which the private actor is performing services typically reserved to the government. That's not the case here. Second, there is NO evidence whatsoever that FB is acting "jointly" with the US government -- as explained in the article.
Third it misrepresents the certain claim that masks would be effective (whether for adults or kids) - it certainly partakes in confirmation bias.
I linked to sources and explained why it was you and your friends misrepresenting things. Don't come on my site and spew your nonsense.
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And funnily(?) enough, those who doesn't support the mitigation efforts is the same type people who on their deathbed either refuse to believe they are about to die or confess how stupid they have been. I blame all the republican l̵e̵a̵d̵e̵r̵s̵ demagogues for this because they where more interested in sticking it do the dems while fishing for votes from the gullible manchilds.
They are also mostly responsible for straining the hospitals to the breaking point because of all the COVID patients. Just look at the statics of excessive deaths because there weren't enough beds in hospitals for other treatments. That's the result of people not taking enough precautions, they indirectly contributed to thousands of deaths. A pandemic with a high R0-value and a high mortality rate has nothing traditional about it how we go about protecting vulnerable people since it's an extremely good idea to protect everyone in such a scenario.
You choose to wear that moniker yourself, your idea of "freedom" means other people die because of your "staunch defense" of your "rights" in the face of a pandemic. If the manchilds just had grown up and done their civic duty, no mandates would have been necessary.
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Re: Lawsuit as Fundraising tactic…
"These lawsuits are done by bad-faith grifters so they can "take on the socialist dumb-o-crats and big tech" to raise money rather than win a case (unless they forum-shop for a really bad circuit)."
I still don't understand how the US continues to tolerate tort law which keeps incentivizing grifters and frauds. From my perspective a lawsuit should be something which is difficult to raise and fraught with danger to start unless you are confident in your case so it becomes a last resort to redress a real grievance.
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"... it would be perfectly legal for them to ask Facebook to do it themselves? If so, that seems kind of bizarre."
No more so than when the president comes out pleading to the US public to do <whatever>. Government asking for your cooperation is one thing.
It's when that ask can be expected to hold the promise of retribution if it isn't met that things become iffy.
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I'm so glad the internet didn't exist back when blood letting was "science"!
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Re: Re: This article makes a number of bias statements
Mike. I’ve read Techdirt for a long time, and these anger-laden posts about how obviously stupid people who disagree with you are have always been a turn off. But, I kept subscribing because I still got a lot out of the site as a whole. This post and the arrogant hate was the last straw. You’re simply, objectively, wrong about the consensus on kids and masks. You and your commenters are in an echo chamber here. There is a very large body of evidence by respectable groups that supports what the plaintiff in this case is saying, it’s a place where people of good faith can disagree. Calling it “misinformation” isn’t just objectively incorrect, it shows how biased and unreliable you are. There a plenty of things to disagree with in the case. But, you took it way too far. I know you and the rest of the commenters will happily dance on my unsubscribe, but you should take the time to read dissenting data on the kids and masks thing. You don’t have all the facts straight. Best of luck with the outrage and clickbait.
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Re: Re: Re: This article makes a number of bias statements
So you think the commenters here live in a echo chamber, huh? I have just one question for you: Name one factual study with all the backing statistics that says not wearing a mask is better than wearing one to stop the spread of COVID.
If you can't, then it's clear that everyone who promulgates the idea that masks aren't needed because of reason X are full of shit.
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Bye. Don't come back. Wallow in your own ignorance if you must. But go the fuck away.
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"You’re simply, objectively, wrong about the consensus on kids and masks."
As, apparently, is the massive majority of the medical community, worldwide, you mean?
"I kept subscribing because I still got a lot out of the site as a whole. This post and the arrogant hate was the last straw."
Oh, hey, we haven't seen the rhetoric trick of "I was once one of you but now I'm done! Done I Say!!"* since the last time Baghdad Bob tried to pretend he was quitting Techdirt forever...for the fifth time.
"Calling it “misinformation” isn’t just objectively incorrect..."
Only true insofar in that calling the anti-mask propaganda misinformation is objectively correct. Or do you have some magical bundle of evidence which sidelines everything medical science and every doctor in the world tells us? Please do tell, as surgeons worldwide would probably enjoy that revelation.
I believe Mike, Rocky and the rest are, by now, quite correct in calling you out as an extra vile species of troll given that you are in fact getting your kicks out of tricking people into endangering themselves and others.
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As the age old wisdom goes, [Citation Needed]
There is a very large body of evidence by respectable groups that supports what the plaintiff in this case is saying, it’s a place where people of good faith can disagree.
Which of course is why you didn't provide even one single scrap of it for people to examine to prove your case and merely asserted that the maskholes are the ones in the right...
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Re: Re: Re: This article makes a number of bias statements
Facts don't care about your feelings, Felicia.
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Hi Rocky,
Your comment has a number of assumptions built into it. In reality there has been, mainly in the U.S., and to a secondary degree in the west, a contingent of those in Epidemiology that have not followed the actual evidence, but instead followed ideology to advocate a positional change - in the name of health sadly. While there are other experts in the field that would advocate a non-traditional "new" approach (again, from what I have seen, not from actual evidence), it is a principle of Philosophy and argument that if two experts disagree (in this case those within Epidemiology, and related fields), then it is best to suspend judgment until you are able to consider all the evidence. Experts are not to be relied upon because of their "expertise" (that is the lowest medical form of evidence), but because their expertise should enable them to convincingly outline the actual evidence itself.
The fact that you have experts being labeled "misinformation" should trigger an ability to look further into the actual evidence. It is also dangerous to label the writings and presentations of professionals in the field, as well as studies, that does not conform to one view to be labeled as misinformation and suppressed.
For instance, there are many thousands of experts in the field that have signed the link. While some may have questioned the number of experts who have actually supported the declaration, lets just say it includes three very prominent Epidemiologists as the co-writers (Dr. Sunetra Gupta, Oxford University; Dr. Jay Bhattacharya, Stanford University Medical School; Dr. Martin Kulldorff, Harvard University). While there are declarations that are in opposition, it at least points out that we need to move to evidence in discussion. This should bring us to look into the actual underlying evidence.
The base of the principles that underly traditional Epidemiology are supported by actual studies and long standing principles. To say, well times have changed, is like somehow waving a hand over the scientific method and saying, times have changed, there are now "new" better methods than truth and reason (as a tool of consistency). Even the study that started the lockdowns from link, was fraught with lack of evidence, made wild claims, and did it all with computer models (which are considered low evidence - particularly since the models must rely on assumptions).
In terms of principles such as treating respiratory disease; cross-immunity; mental health cost and death; moral and ethical concerns of treating the well as sick and infringing on rights without justification; the role of natural immunity; the problem of anti-body dependency enhancement (ADE); viral escape; and cytokine storm in attempting to use a vaccine (general prophylactic) in attempting to gain herd immunity levels; etc. - let me pass along a few interviews from some experts that outline the basic principles and therefore concerns of some experts in the field.
Dr. Johan Giesecke: is both a physician and epidemiologist and is Professor Emeritus at the Karolinska Institute in Stockholm. He was previously a Senior Lecturer at the London School of Hygiene and Tropical Medicine. From 1995 - 2005 Dr. Giesecke served as state epidemiologist of Sweden, and from 2005 - 2014 he was the Chief Scientist at the European Centre for Disease Prevention and Control. He is currently a member of the Strategic and Technical Advisory Group for Infectious Hazards of the World Health Organization, and also works as an advisor to the Public Health Agency of Sweden. Here is an interview: link
This next link deals with the claim of the actual hospital status vs. the perceived status (and the reality that hospitals tend to run at near capacity, but they also have well thought out contingency plans to handle greater additional loads).
Reason.com debate between Dr. Marty Makary of John Hopkins and Dr. Wittkowski adds is that as of April 1, 2020, Dr. Wittkowski pointed out that if the suppression were stopped in the United States (at that time - April 2020), and natural herd immunity was allowed and pursued, that there would be (or would have been) 10,000 deaths [in another interview he said even if it were as high as 20,000 it still would be no where near the Imperial College model of 2 million] (whereas if the suppression measures were continued the death toll would be much higher, as they have been, and the suppression efforts would directly lead to a second wave). In the debate with Dr. Makary, Dr. Wittkowski presents more updated information, and presents a cross-immunity study by Dr. Sunetra Gupta of Oxford ( link which has shown that cross-immunity is obtained for SARS-Cov-2 not just with SARS-1-Cov, but any seasonal coronaviruses (such as colds), and that a person that has had another coronavirus within the past 2 years would have cross-immunity for SARS-Cov-2, and therefore the herd immunity level required to stop the SARS-Cov-2 virus will be much lower. This cross-immunity with any coronavirus + the current level of herd immunity, means that there will not be a nation wide second wave (although there may be isolated regional ones). Dr. Makary outlines some of the additional revelations of practical effects of the virus over the bacterial pneumonia (the respiratory disease). The debate is here: link.
I realize there are others in the epidemiological field, or the field of virology, that have published articles to the opposite - but again, since there is a conflict among experts, it shows that we should suspend judgement and look to the actual evidence (which actually is a good practice even when experts agree).
Again, please pass along any actual medical evidence, or interviews that outline and point to medical evidence. This enables us to discuss actual evidence and medical principles, rather than rely on ad-hominem arguments and name calling.
Thank you again Rocky for taking the time to respond, and for allowing me the benefit of your thoughts. I hope you have a great day today.
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Hi Tomasparks,
Agreed. Here though, the case is presented in California, and the logic in Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74 (1980) was that the state Constitution had strengthened freedom of speech for the general benefit. This was in addition to any federal law. This mainly drew from the ability of society to regulate those things that are not in the public interest. The court stated that "there is no merit to appellants' argument that they have been denied property without due process of law, where they have failed to show that the due process test whereby the challenged law must not be unreasonable, arbitrary, or capricious and the means selected must have a real and substantial relation to the objective to be obtained, is not satisfied by the State's asserted interest in promoting more expansive rights of free speech and petition than conferred by the Federal Constitution.... Nor have appellants' First Amendment rights been infringed by the California Supreme Court's decision. The shopping center, by choice of its owner, is not limited to the personal use of appellants, and the views expressed by members of the public in passing out pamphlets or seeking signatures for a petition thus will not likely be identified with those of the owner. Furthermore, no specific message is dictated by the State to be displayed on appellants' property, and appellants are free to publicly dissociate themselves from the views of the speakers or handbillers."
Further, the state supreme court case made statements such as this "Nonetheless, 'a railway station is like a public street or park.' (Id., at p. 851.) Further, 'the test is not whether petitioners' use of the station was a railway use but whether it interfered with that use.' (Id.) The opinion thus affirms that the public interest in peaceful speech outweighs the desire of property owners for control over their property..."
While Facebook and Twitter are engaged in interstate commerce, they are located in the state of California. So, they very well could meet the situation in Pruneyard. It is a possibility, that was my point.
Of course areas that would be outside of freedom of speech, such as aspects that could damage reputation, would be on the table as infringing on another person's rights.
Second the main point of the case was that there was government collusion in the action under state doctrine. IF there was collusion of action, then this could meet the state doctrine as I mentioned above. The article you mention in the link you gave dealt with one aspect of state doctrine, mainly that "when the private entity performs a traditional, exclusive public function", however, there are others, such as "when the government compels the private entity to take a particular action," and "when the government acts jointly with the private entity, see, e.g., Lugar v. Edmondson Oil Co., 457 U. S.
922, 941–942 (1982)". These were summarized in Manhattan v. Halleck in the majority opinion near the end of section II. Here are two legal reviews of the state doctrine, showing a much broader aspect than just "when the private entity performs a traditional, exclusive public function":
https://cpilj.law.uconn.edu/wp-content/uploads/sites/2515/2018/10/16.2-Rethinking- State-In action-An-In-Depth-Look-at-the-State-Action-Doctrine-in-State-and-Lower-Federal-Courts-by-David-M.-H oward.pdf
In addition, as I have mentioned (while recognizing that it is a different take than others who have engaged in conversation with me), it is more than appropriate to read Section 230 within its context and what the law was before, within its intent (which the specifically stated in the law 230(a)-(b). Section 230(c)(2)(b) is different from (a), since (a) deals with actions voluntarily taken, whereas (b) deals with providing the "the technical means to restrict access", so it would appear that enable or make available refers to enabling the means to the content creator, content developer, or others, of applying restricted access, not actually applying the restrictive access. Since I have outlined this above, I will not belabor the point.
All I was stating was that I can see a freedom of speech case, I could also see a bad actor argument, and that in this case it potentially has a state doctrine issue (it appears that in Hart's case, state action is the argument they are taking).
I really appreciate you pointing me to that article, it was an interesting read.
Thank you again so much for taking the time to comment, and for the thoughtful insights. I hope you have a great day.
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How's that Flat Earth evangelism working out, by the by?
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The less commentUser understands a subject, the higher the word count they use to cover up that fact.
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