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  1. #151
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    Quote Originally Posted by LWW View Post
    If they are a free 'FORUM' as they claim, then it definitely is a free speech issue.

    If it is a content provider, one which accepts data from many sources and selects what they wish to print/publish/broadcast such as newspaper/radio/television then they have a much freer reign.

    Eventually it has to be decided what they are in the legal sense, but it is totally dishonest them to present a public face as a claimed forum and a private face that claims the rights of a content provider.

    That's what they advertise. But that would be a free speech violation of user rights when the platforms are arguing violation of their free speech rights. While they have the power as a private entity, their argument is goofy.
    One journeys into another world where the great ancient dead dwell, and joyfully mingles with them, conversing, questioning and learning…. One crosses a divide to where the great ancients dwell. -- Machiavelli, letter to Francesco Vettori of December 10, 1513

  2. #152
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    Quote Originally Posted by Chris View Post
    Yea, I brought up public accommodation much earlier, but few think it applies.
    In a sense it does while it might not be the specific jargon employed. The whole point is that the second you open for business and make that business available to the public at large, your right to exclude/censor or to NOT associate is no longer absolute. Now the 1A also includes association rights so, in theory one could say that a person has a fundamental right of association and inversely a right NOT to associate, essentially for ANY reason, even a reason we consider to be morally wrong.

    That's not the actual law though. If you're a sole proprietor with a convenience store, you likely can't discriminate based on race, gender, etc. If you're a baker, well, we had a case about the icing on the cake, etc etc etc.....

    There are thousands and thousands of cases on this exploring the contours of how fair it is for business to discriminate in various contexts. But make no mistake about it, that right exists, but its not absolute.

    The entire concepts that we are discussing really are under this very, very broad umbrella which includes civil rights laws or businesses that we consider to be common carriers.

    Essentially there are circumstances, again the full circumstances aren't fully known at this point, where, in order to discriminate you can't just have 'any' reason, you will need a 'compelling' reason and what do we mean by 'compelling' -- well, we'll let you know through caselaw.

  3. #153
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    Quote Originally Posted by Dr. Who View Post
    Except that there are no protected classes of speech, so the public accommodation logic couldn't be applied to prevent censorship. Under public accommodation, business can discriminate based on style of dress, political affiliation, the fact that you come from another country or if they just don't like the cut of your jib.
    You're missing the point. The point is that the second you have a business generally available to the public your right NOT to associate, censor or exclude is just not going to be absolute. [and just as an aside the fact you come from another country is 'national origin' and that actually is CURRENTLY a suspect class so a store can't discriminate based on that TODAY]

    We might not care too much, today, about, say a convenience store discriminating against Republicans, right? After all there's one around the corner. A hospital can't do that, can they? Likewise if CVS and Walgreens said 'No Republicans' well, I'm not sure they could get away with that, but they're not a hospital, but unlike a C store, they are hundred billion dollar organizations.

    Honestly I think Amazon AWS is there, at that point, I also think Facebook is, if not there, at least very close, Twitter has a bunch of anonymous user names so its more of a peanut gallery, but I could absolutely see a court at some point simply rule, "You made yourself part and parcel to civil society and accordingly you're not going to be allowed to discriminate unless you have a compelling reason'

    And so that would be akin to when Walmart bans somebody for shoplifting, shoplifting, the commission of a crime on their property then provides a compelling reason to prevent future service.

    But they are likely going to be subjected to a 'compelling' standard and they will slowly define compelling through thousands and thousands of lawsuits.

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  5. #154
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    Quote Originally Posted by Newpublius View Post
    In a sense it does while it might not be the specific jargon employed. The whole point is that the second you open for business and make that business available to the public at large, your right to exclude/censor or to NOT associate is no longer absolute. Now the 1A also includes association rights so, in theory one could say that a person has a fundamental right of association and inversely a right NOT to associate, essentially for ANY reason, even a reason we consider to be morally wrong.

    That's not the actual law though. If you're a sole proprietor with a convenience store, you likely can't discriminate based on race, gender, etc. If you're a baker, well, we had a case about the icing on the cake, etc etc etc.....

    There are thousands and thousands of cases on this exploring the contours of how fair it is for business to discriminate in various contexts. But make no mistake about it, that right exists, but its not absolute.

    The entire concepts that we are discussing really are under this very, very broad umbrella which includes civil rights laws or businesses that we consider to be common carriers.

    Essentially there are circumstances, again the full circumstances aren't fully known at this point, where, in order to discriminate you can't just have 'any' reason, you will need a 'compelling' reason and what do we mean by 'compelling' -- well, we'll let you know through caselaw.
    This might be why the Fifth Circuit Court of Appeals, as I pointed out pages ago, argued some about the platforms claiming to represent free speech in allowing for any point of view to be expressed and then reneged on that.

    Free association would be a better argument than the free speech one the platforms are arguing. But they don't argue it.

    The law has a lot of catching up to do with regard to electronic media.


    Still, I'm an anti-public accommodationist and regardless what the courts find, don't think the government has the power to regulate what platforms do, other than obviously objectional (unlawful) things like porn, threats to life and property, and so on. To me, the BoR and other amendments were intended solely to limit what government can do and somewhere along the way, wrongly, that was turned around to government enforcing rights against private citizens and businesses.
    One journeys into another world where the great ancient dead dwell, and joyfully mingles with them, conversing, questioning and learning…. One crosses a divide to where the great ancients dwell. -- Machiavelli, letter to Francesco Vettori of December 10, 1513

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    Quote Originally Posted by Chris View Post
    Free association would be a better argument than the free speech one the platforms are arguing. But they don't argue it.
    To me there is no real distinction there that matters in the grand scheme of things.

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    Quote Originally Posted by Newpublius View Post
    You're missing the point. The point is that the second you have a business generally available to the public your right NOT to associate, censor or exclude is just not going to be absolute. [and just as an aside the fact you come from another country is 'national origin' and that actually is CURRENTLY a suspect class so a store can't discriminate based on that TODAY]

    We might not care too much, today, about, say a convenience store discriminating against Republicans, right? After all there's one around the corner. A hospital can't do that, can they? Likewise if CVS and Walgreens said 'No Republicans' well, I'm not sure they could get away with that, but they're not a hospital, but unlike a C store, they are hundred billion dollar organizations.

    Honestly I think Amazon AWS is there, at that point, I also think Facebook is, if not there, at least very close, Twitter has a bunch of anonymous user names so its more of a peanut gallery, but I could absolutely see a court at some point simply rule, "You made yourself part and parcel to civil society and accordingly you're not going to be allowed to discriminate unless you have a compelling reason'

    And so that would be akin to when Walmart bans somebody for shoplifting, shoplifting, the commission of a crime on their property then provides a compelling reason to prevent future service.

    But they are likely going to be subjected to a 'compelling' standard and they will slowly define compelling through thousands and thousands of lawsuits.
    So make that another state instead of another country. I believe hospitals can refuse to treat someone, as long as it's not based on discrimination against a protected class of persons and it's a non-emergency case - see also EMTALA - the federal Emergency Medical Treatment and Active Labor Act. Compliance is an issue.

    I can only see subjecting them to a compelling standard if they are an ISP and absolutely the only game in town and an essential service, which would give them the same status as a public utility. I don't see platforms like FB, Twitter or TikTok being declared essential any time soon.
    "The difference between what we do and what we are capable of doing would suffice to solve most of the world’s problems.”
    Mahatma Gandhi

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