Today's argument in the social media jawboning case is a perfect illustration of how the Supreme Court has been (and has allowed itself to be) dragged into the middle of the culture wars.
The decision in Lindke v. Freed makes my head spin, and not in a good way. Stating that the person is "engaging in state action if and only if they “both (1) possessed actual authority to speak on the State’s behalf on a particular matter, and (2) purported to exercise that authority when speaking in the relevant social-media posts.” As you mentioned, it raises so many questions. What is meant by "actual" authority and how would you determine whether it was being exercised? When using social media most people have their professional/business titles, or at least descriptions, in their bios because they want to use that information to lend credence to their words. There are other people who don't need those titles because they are at a national level of recognition. If someone re-posts something would that fall into these categories? The category of "actual authority" is undermined because most people automatically associate the person with the office and would have no idea (and no way to ascertain) whether that person has "actual" authority to speak. It would be helpful if such individuals had an official and a different personal social media account. It wouldn't solve all the problems but it would help. I also don't see every governmental office issuing a statement concerning who has the authority to speak for that office. Sometimes, lawyers do seem determined to make a lot of busy work.
The problem is far worse than the encouragement of hard-right content. It's the active suppression of anything the algorithm doesn't like, which is everything critical of hard-right content. The algorithm needs clicks like a junkie needs his fix, so it loves the anti-abortion zealots and the IDF apologists. "Comment failed to post" for everyone else.
Would it take Congress to establish a law that a case involving a state or the US as a party must be filed in the district of the state's capital or DC? Or is that something the Judicial Conference can do on its own?
As you point out in your Nov, 2023 "Atlantic" article, it may not be so much a matter of "judge shopping" as the robust legal fantasy life of the 5th Circuit. Now I read that SCOTUS may finally be growing weary of its fanciful decisions. Certainly for what is often characterized as the most conservative circuit, it is reviewed by SCOTUS far more than expected. As a diviner of all things Supreme (or is it "Imperial" these days) --- any truth to that supposition ?
Can you give a brief description of what Judge Doughty though the government could DO to "coerce" a social media company? Threaten to shut it down? (prior restrain slam dunk). Arrest its owners? (Surely there are other grounds out there unrelated to the First Amendment to deal with Elon). Remove potential federal funding? Have the IRS audit them? That suggests that there is something hinky about their taxes that makes an audit threatening. About the only thing I can think of is for the government to publicize on its own what misinformation is being promulgated. It is coercion to give publicity to dangerous misinformation?
Were the judges that president Adams appointed fired by the repeal of the law? In some legislative nuclear war of today, could Judges be fired by a repeal and replacement of some Federal judicial statute?
The decision in Lindke v. Freed makes my head spin, and not in a good way. Stating that the person is "engaging in state action if and only if they “both (1) possessed actual authority to speak on the State’s behalf on a particular matter, and (2) purported to exercise that authority when speaking in the relevant social-media posts.” As you mentioned, it raises so many questions. What is meant by "actual" authority and how would you determine whether it was being exercised? When using social media most people have their professional/business titles, or at least descriptions, in their bios because they want to use that information to lend credence to their words. There are other people who don't need those titles because they are at a national level of recognition. If someone re-posts something would that fall into these categories? The category of "actual authority" is undermined because most people automatically associate the person with the office and would have no idea (and no way to ascertain) whether that person has "actual" authority to speak. It would be helpful if such individuals had an official and a different personal social media account. It wouldn't solve all the problems but it would help. I also don't see every governmental office issuing a statement concerning who has the authority to speak for that office. Sometimes, lawyers do seem determined to make a lot of busy work.
The problem is far worse than the encouragement of hard-right content. It's the active suppression of anything the algorithm doesn't like, which is everything critical of hard-right content. The algorithm needs clicks like a junkie needs his fix, so it loves the anti-abortion zealots and the IDF apologists. "Comment failed to post" for everyone else.
Would it take Congress to establish a law that a case involving a state or the US as a party must be filed in the district of the state's capital or DC? Or is that something the Judicial Conference can do on its own?
As you point out in your Nov, 2023 "Atlantic" article, it may not be so much a matter of "judge shopping" as the robust legal fantasy life of the 5th Circuit. Now I read that SCOTUS may finally be growing weary of its fanciful decisions. Certainly for what is often characterized as the most conservative circuit, it is reviewed by SCOTUS far more than expected. As a diviner of all things Supreme (or is it "Imperial" these days) --- any truth to that supposition ?
Can you give a brief description of what Judge Doughty though the government could DO to "coerce" a social media company? Threaten to shut it down? (prior restrain slam dunk). Arrest its owners? (Surely there are other grounds out there unrelated to the First Amendment to deal with Elon). Remove potential federal funding? Have the IRS audit them? That suggests that there is something hinky about their taxes that makes an audit threatening. About the only thing I can think of is for the government to publicize on its own what misinformation is being promulgated. It is coercion to give publicity to dangerous misinformation?
Were the judges that president Adams appointed fired by the repeal of the law? In some legislative nuclear war of today, could Judges be fired by a repeal and replacement of some Federal judicial statute?