Will Trump Class Actions Against Social Media Platforms Revive Section 230 Debate?

By Eileen McDermott
July 7, 2021

“Censorship runs rampant against the Putative Class Members, and the result is a chilling effect cast over our nation’s pressing political, medical, social, and cultural discussions.” – Trump complaints

Former President Donald J. Trump announced today that he is suing Facebook, Twitter and Google/YouTube in separate class action suits, claiming, among other allegations, that the platforms have “increasingly engaged in impermissible censorship resulting from threatened legislative action, a misguided reliance upon Section 230 of the Communications Act, 47 U.S.C. § 230, and willful participation in joint activity with federal actors.”

The two other primary plaintiffs in the Twitter complaint are Linda Cuadros and the American Conservative Union. Elizabeth Albert, Kiyan and Bobby Michael, and Jennifer Horton are named in the complaint against Facebook; and Kelly Victory and Austen Fletcher are named in the suit against YouTube/Google.

All three complaints take aim at Section 230 of the Communications Decency Act of 1996, dubbing it “[l]egislation passed twenty-five (25) years ago intended to protect minors from the transmission of obscene materials on the Internet, and to promote the growth and development of social media companies” that has outgrown its original intent and enabled each of the companies to become behemoths who censor content of their choosing.

Section 230 says that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider” and that no provider shall be held liable for “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”

Trump was permanently banned from Twitter on January 8, 2021, following the Capitol Insurrection; was suspended from Facebook for at least two years on January 7, 2021; and was indefinitely banned by YouTube on January 12, 2021.

“Censorship runs rampant against the Putative Class Members, and the result is a chilling effect cast over our nation’s pressing political, medical, social, and cultural discussions,” explain the complaints.

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Section 230 and Copyright Reform

Late last year, Senator Thom Tillis (R-NC), Chair of the Senate IP Subcommittee, and Senator Chris Coons (D-DE), Ranking Member of the Senate IP Subcommittee, sent a letter to Twitter CEO Jack Dorsey expressing disappointment over the company’s continued refusal to cooperate on hearings around copyright reform. As part of that process, Tillis asked Dorsey prior to a December 15 IP Subcommittee hearing: “Don’t you think that if Twitter can track and take down political content that it also has the ability to take down content that infringes the IP of hard-working American creators?” Tillis and others feel that the platforms’ proactive political censorship undermines their excuses for failing to curb rampant copyright infringement. This may be true, but studies have also shown that there is little evidence to support the contention that conservative voices are being censored more than liberal voices on social media, and judges have thus far thrown out almost every suit like Trump’s.

Trump’s argument that the platforms’ engagement with federal actors means their “status thus rises beyond that of a private company to that of a state actor” that is therefore “constrained by the First Amendment right to free speech in the censorship decisions it makes regarding its Users” also seems unlikely to pass muster, according to some commentators.

The complaints accuse Democratic members of Congress of coercing the social media companies into censoring the plaintiffs’ speech and also allege that federal actors, such as the Centers for Disease Control and Prevention (CDC) and Dr. Anthony Fauci, worked with the platforms to promote a particular agenda.

Repealing Section 230

The lawsuits seek a declaration from the United States District Court for the Southern District of Florida “that Section 230 on its face is an unconstitutional delegation of authority.”

Senator Ron Wyden (D-OR), who wrote Section 230, has said that “social media cannot exist without the legal protections of Section 230” and faulted the platform CEOs in 2018 for failing to take more decisive action against indecent speech much sooner. He wrote: “I never expected that internet CEOs would fail to understand one simple principle: that an individual endorsing (or denying) the extermination of millions of people, or attacking the victims of horrific crimes or the parents of murdered children, is far more indecent than an individual posting pornography.”

Thus, it has been the platforms’ lack of consistent censorship that Wyden sees as having threatened Section 230. “Members across the spectrum, including far-right House and Senate leaders, are agitating for government regulation of internet platforms,” Wyden said. “Even if government doesn’t take the dangerous step of regulating speech, just eliminating the 230 protections is enough to have a dramatic, chilling effect on expression across the internet.”

The America First Policy Institute (AFPI), which is backing the suits, said the Trump complaints are just the beginning of the fight to get rid of Section 230. “Protected by an outdated and misinterpreted Section 230 of the Communications Decency Act, these elites and their firms ride roughshod over some of the most fundamental American rights: the right to speak, the right to be heard, and the right to democratic representation,” said an AFPI statement.

Pam Bondi, Chairman, Constitutional Litigation Partnership at AFPI, added: “Things have changed over the past several years, and the First Amendment rights of all Americans are on the line in this case. The law and Constitution are on our side. America is the great country that it is because our Constitution protects our freedoms, including freedom from censorship – this lawsuit ensures that those rights are properly defended.”

The complaints are available here:

YouTube complaint

Facebook complaint

Twitter complaint

 

The Author

Eileen McDermott

Eileen McDermott is the Editor-in-Chief of IPWatchdog.com. Eileen is a veteran IP and legal journalist, and no stranger to the intellectual property world, having held editorial and managerial positions at several publications and industry organizations. She has acted as editorial consultant for the International Trademark Association (INTA), chiefly overseeing the editorial process for the Association’s twice-monthly newsletter, the INTA Bulletin. Eileen has also served as a freelance editor for the World Intellectual Property Organization (WIPO); as senior consulting editor for the Intellectual Property Owners Association (IPO) from 2015 to 2017; as Managing Editor and Editor-in-Chief at INTA from 2013 to 2016; and was Americas Editor for Managing Intellectual Property magazine from 2007 to 2013.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author as of the time of publication and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 122 Comments comments.

  1. AAA JJ July 7, 2021 5:25 pm

    Any and every attorney who signed these ridiculous complaints should be disbarred.

  2. Anon July 7, 2021 9:04 pm

    ^^^ Did you bother reading any of even one, or is this just your OMB-TDS?

    Maybe you should watch the movie, “A Man for All Season.” The perspective might do you some good.

  3. Curious July 7, 2021 10:12 pm

    Any and every attorney who signed these ridiculous complaints should be disbarred.
    Agree. Forget who the plaintiff is for a moment. Anyone who signed those complaints must have slept through Constitutional law. Also, forget winning — these attorneys are going to have trouble fending off Rule 11 sanctions.

  4. Greg DeLassus July 8, 2021 12:03 am

    @1 “Disbarred” is probably going too far, but there is a surprisingly large number of Republican lawyers who appear committed to testing exactly how far they can go before Rule 11 sanctions get imposed. Here’s hoping that they find out, and sooner rather than later.

  5. Stephen Potter July 8, 2021 5:08 am

    Interesting to see proud defenders of free market capitalism attacking the decisions of proud, free company owners to run their businesses in the way that they see fit!

  6. ipguy July 8, 2021 5:40 am

    What a brilliant move by Trump! Now, opposing counsel can depose him under oath and start asking questions about January 6th as well as anything else that led up to Trump’s social media accounts getting suspended.

  7. David VanVliet July 8, 2021 7:39 am

    The first thing that this case is going to run into is the Terms of Service. I know that at least two (possibly all three) of these tech companies require cases against them to be filed in California. I expect either a dismissal or transfer to occur rather quickly although, because this case is so politically charged, the judge might decide to do something else. Regardless, several appeals are likely which will keep this case in the news. That is the most useful thing for Trump. He can scream about being the victim of big tech and use that for fund raising (like he’s already been doing).

  8. AAA JJ July 8, 2021 8:41 am

    ” ‘Disbarred’ is probably going too far,…”

    No, it’s not.

    “What a brilliant move by Trump!”

    Well, to give him credit, he’s an unrepentant grifter and as long as there is even a penny left to swindle the rubes out of, he’s going to find a way to do it.

    BTW, there is no “section 230 debate.” There is only the nonsense that the grifting class spews to keep the rubes’ wallets open.

    “Pam Bondi, Chairman, Constitutional Litigation Partnership at AFPI,…”

    Lulz

  9. IamI July 8, 2021 9:20 am

    That Trump is already fundraising off this lawsuit shows it to be nothing but performative nonsense for his base. It’ll go nowhere, because the suits are all completely without merit. Facebook, Twitter, and YouTube all enjoy First Amendment protection because they are NOT state actors, regardless of what the suits wrongly claim.

  10. Tim July 8, 2021 9:40 am

    “Not State Actors”? Let’s do some research on that. Obama and Sleepy packed many of these folks into government positions. How do you think “Vringo vs IP Internet” got tossed? These guys are planted throughout Washington and are part of the coup.

  11. AAA JJ July 8, 2021 9:43 am

    “…this lawsuit shows it to be nothing but performative nonsense for his base.”

    B-b-but did you actually read one?!

    Lulz

  12. Paul F Morgan July 8, 2021 10:05 am

    These Trump suits against social media sites are surprising for other reasons, including the potential for depositions of Trump re the baselessness of the false vote fraud allegations he seeks forced publication of, the potential publicity for the strong evidence of their falsity,* and his reputation for not paying his attorneys.
    *Already being demonstrated in voting machine company defamation suits and disbarment proceedings against other Trump attorneys.

  13. Dozens July 8, 2021 12:54 pm

    @8 ”Disbarred” is probably going too far,…

    No, it’s not.

    Ha! Well, while I do not expect disbarment, I can cheerfully agree that it would be no loss to the profession if the signatories were all disbarred. It would save clients in future from enlisting the services of obvious incompetents.

  14. AAA JJ July 8, 2021 1:11 pm

    “These guys are planted throughout Washington and are part of the coup.”

    Maybe change the channel on your tin foil hat.

    Lulz

  15. Night Writer July 8, 2021 3:12 pm

    I’d have to do a lot more research on Constitutional law before I said things like, “should be disbarred.”

    Seems like there are at least some arguments on Trump side. Like that the US has not been enforcing anti-trust law and section 230. There are arguments that what has been created is essentially state action as the companies exercise near monopoly powers and enjoy special status under 230 against liability.

    Obviously, I’d need to research this more, but there are arguments that can be made. And–frankly–from a functional perspective the government could allow a few large media companies to become monopolies and then control content by giving them special favors like section 230.

    I think there is an argument that the government by not breaking up these companies has created state action.

    Anyway….I’ll wait for the woke to start calling me all sorts of names.

    Imagine if this were turned around and the social media companies were say fascists and had censored the Ds when they were encouraging rioting?

    Like it or not there are arguments here and there are real issues here. The government can control speech by allowing companies to become monopolies and then controlling the companies.

  16. Night Writer July 8, 2021 3:34 pm

    Actually, the more you look at this, the more I am sure that Trump does have some pretty solid arguments.

    Section 230 + not enforcing anti-trust laws = government action.

    This is definitely one of those cases of effects and practically what is happening.

  17. AAA JJ July 8, 2021 4:12 pm

    “Like it or not there are arguments here and there are real issues here.”

    No, there are not.

    “The government can control speech by allowing companies to become monopolies and then controlling the companies.”

    The “government” controls Facebook? The “government” controls Google?

    “I’d have to do a lot more research on Constitutional law before I said things like,…”

    No, you don’t.

    “Actually, the more you look at this, the more I am sure that Trump does have some pretty solid arguments.”

    Unfortunately for Cheeto Jesus the judge is going to be looking at this. And the judge is going to dismiss all three without breaking a sweat. He knows that. You know that. I know that. The only ones who don’t know that are the rubes getting duped into making monthly credit card contributions to this pathetic grift.

  18. Curious July 8, 2021 6:13 pm

    Actually, the more you look at this, the more I am sure that Trump does have some pretty solid arguments.
    Seriously? How could you have passed Constitutional Law in law school and think this lawsuit has a scintilla of hope in achieving its desired goal — i.e., to force a private company to host the speech of another person (e.g., “An injunction and declaratory judgment ordering Facebook immediately to reinstate Plaintiff and Putative Class Members to their Facebook accounts.”). NOT … GOING … TO … HAPPEN.

    There are Federal/State anti-discrimination laws that prevent a business from discriminating based upon a protected class. However, being a conservative or a politician is not a protected class.

    This lawsuit has as much chance of prevailing as the Florida law that imposes fines of up to $250,000 per day on social media companies that ban candidates for elected office being held constitutional.

    Come on … think through the ramifications of this. If, for example, being a candidate for elected office means that social media companies were required to host your content, you would have a whole bunch of crackpots inventing political parties that advocated for a number of absolutely abhorrent practices — so abhorrent that I’m not going to even write them down (e.g., think of extreme acts of sex and violence and combinations of the two). And these same crackpots would force the social media companies to host videos, etc. that glorified these abhorrent practices. Is that what people want?

  19. RTFMPEP July 8, 2021 8:07 pm

    “I’ll wait for the woke to start calling me all sorts of names.”

    As Night Writer engages in name-calling, like the America-hater he is.

  20. Greg DeLassus July 8, 2021 11:36 pm

    How could you… think this lawsuit has a scintilla of hope in achieving its desired goal — i.e., to force a private company to host the speech of another person…[?]

    I think that forcing a private company to reinstate his account is—at most—a stretch goal. His real goals here are not principally legal in nature, viz.: (1) fundraising; & (2) keeping his base outraged and engaged. Measured by those goals, his lawsuit is already succeeding and will likely only grow in success.

  21. Night Writer July 9, 2021 5:20 am

    @20 RTFMPEP “As Night Writer engages in name-calling, like the America-hater he is.”

    Wow. No rational person could get to that conclusion. You, on the other hand, are obviously a hate monger that will attack anyone that doesn’t support your “woke” agenda. The fact is that the “woke” regularly do exactly what you have done– attribute to anyone that doesn’t agree with them to their enemy tribe. Face it. You are a Marxist and your tactics are as violent and intolerant as was Stalin. RTFMPEP you are a dangerous person.

    (For the rational, I am a liberal D that is still capable of rational thought. I am not one of the “woke” nor one of the “MAGA.”)

    @18 AAA JJ you made no substantive points.

    @20 Curious “Seriously? How could you have passed Constitutional Law in law school and think this lawsuit has a scintilla of hope in achieving its desired goal”

    Curious, not only did I pass but I did well. I told you that I wasn’t sure but that there is something odd at play here. We have monopolies. We have section 230. We have monopolies editing content despite the assumptions of section 230. I think the key here is that you stop being a private entity when the government allows you to become a monopoly. And I think the key with this is that it amounts to the end of free speech functionally. You should ask yourself if you feel as if you have free speech now. I don’t know if you have a first class mind but if you do then you should be able to imagine if you were a MAGA person, would you feel like you had free speech? I think the answer is no. I think that I’d have to read more about say monopolies on the Rail Roads to get more of an understanding of the types of arguments that could be made. But–I think it is perhaps one of the most important issues of our time. As our government allows more and more monopolies and helps with legislation, it erodes and removes our freedoms under the Constitution. It isn’t very hard for a rational person to understand that. Think if there was a single rail road and no cars. What if they decided that you couldn’t ride the rail road if you conducted speech on the rail road that they found offensive. It wasn’t illegal but they just didn’t like you talking about passing the Sherman Anti-Trust Act and if you did then you were banned and had no practical way to cross the country.

    It is not a trivial argument. I don’t have the time to develop it. But there are arguments.

  22. Night Writer July 9, 2021 6:32 am

    To Curious’s arguments below. The argument that Trump has that I think has legs is the following: 1) monopolies; 2) Section 230; and, 3) editing of content and people based on political beliefs. The issue is that Twitter adopted editorial editing for people/Tweets that agreed with their politics. That is very different from what you are saying. Your arguments Curious are a strawman.

    I think that the portion of the argument that asserts you should be able to do whatever you want (First Amendment) is not going to have legs. But that the portion of the argument that policies are being unevenly enforced or that the policies include a political agenda do have legs. And I think there is lots of evidence that Twitter and Facebook do exactly the ladder. Anecdotally, I’ve seen that on my personal social media where it is clear that Facebook favors the “woke” over conservatives in deleting posts and other policies they have. Twitter is the same.

    There are real issues here. I think that Greg @21 is right that Trump is saying all sorts of things to get attention and money but underlying all this there are some real issues that have legs.

    Of course, it is hard to talk about these issues with neo-Marxists lurking and hoping to smear you such as @20 RTFMPEP. I think people like RTFMPEP need to be sued for defamation. The whole problem is that they threaten your job and try to smear you if you say anything against their “woke” agenda. They are violent dangerous people that have silenced rational debate in this country. In the patent world, the “woke” are trying to equate patents with white supremacists. You see that already in some of RTFMPEP’s comments.

    @19 Curious >>Come on … think through the ramifications of this. If, for example, being a candidate for elected office means that social media companies were required to host your content, you would have a whole bunch of crackpots inventing political parties that advocated for a number of absolutely abhorrent practices — so abhorrent that I’m not going to even write them down (e.g., think of extreme acts of sex and violence and combinations of the two). And these same crackpots would force the social media companies to host videos, etc. that glorified these abhorrent practices. Is that what people want?

  23. Anon July 9, 2021 8:38 am

    Night Writer is absolutely correct in that there are meaningful arguments concerning Section 230 and implications of de facto government restraints (for example – the Public Utilities Doctrine).

    It is rather startling just how much OMB-TDS shuts down ANY semblance of cognitive thinking when a Liberal Left mantra point is implicated.

    No One is saying that Trump is anything close to a “Savior” for the legal points involved – and yet, the mere mention or inclusion of his same sets off a derangement that is rather startling.

  24. Curious July 9, 2021 9:22 am

    We have monopolies.
    This assumption is plainly wrong. There are no monopolies in social media. Regardless, even if they were monopolies, that doesn’t abrogate their 1st amendment rights not to host content that they do not agree with.

    The issue is that Twitter adopted editorial editing for people/Tweets that agreed with their politics.
    I guess you forgot much of what you learned in Constitutional law. Even if everything you describe is accurate, it is their right to do so.

    Your arguments Curious are a strawman.
    Strawman? What argument have I misrepresented? Assume that Twitter is a monopoly (it isn’t). Assume that Twitter has an innate bias towards a particular party (it doesn’t — look how long it bent over backwards to keep from banning the prior President even after he frequently violated Twitter’s TOS). Even under all of these assumptions, none of that changes Twitter’s 1st amendment rights not to host speech of its choosing. Twitter doesn’t have to be content neutral.

    I think that the portion of the argument that asserts you should be able to do whatever you want (First Amendment) is not going to have legs.
    Look who is fabricating a strawman. Twitter isn’t being accused of “be[ing] able to do whatever [it] want[s].” Twitter is being accused of not hosting speech that violates its TOS. That is Twitter’s right.

    Anecdotally, I’ve seen that on my personal social media where it is clear that Facebook favors the “woke” over conservatives in deleting posts and other policies they have. Twitter is the same.
    Too bad. That’s Facebook and Twitter’s right as well. They are PRIVATE companies. What part of PRIVATE don’t you understand? If 8chan and The Daily Stormer wants to stop hosting a website advocating for BLM, that is their right as well. They are PRIVATE entities who cannot be forced to host any content. You don’t like Facebook, do a google search for “Facebook + alternative”. I just did. There are plenty of them out there (which kind of blows away the notion that Facebook is a monopoly).

    The whole problem is that they threaten your job and try to smear you if you say anything against their “woke” agenda.
    You think the left is the only one who does that? That is in the standard playbook all along the political spectrum.

    In the patent world, the “woke” are trying to equate patents with white supremacists.
    You think the left is the only one who makes unfair comparisons to advance a political point? That is in the standard playbook all along the political spectrum.

    Do you know what else is in the standard playbook all along the political spectrum? Using the actions of a few to paint everybody (having similar politics) with the same brush. Just as I know Republicans who don’t like to be associated with MTG, Boebert, or Goas, I know Democrats who don’t want to be associated with AOC and Ilhan Omar. However, that doesn’t prevent the other side from attempting to do so.

    You want to fix this country? Get rid of Citizen’s United, get rid of gerrymandering, and make election day a national holiday. Citizen’s United now means that the rich few can dominate the airwaves to push their message. Gerrymandering is what permits extremists (on both sides of the aisle) to flourish. Making election day a national holiday would reduce the excuses for people not voting.

  25. AAA JJ July 9, 2021 11:01 am

    “@18 AAA JJ you made no substantive points.”

    Neither do any of Drumpf’s 3 lawsuits!!!!

    Lulz

    “Think if there was a single rail road and no cars… then you were banned and had no practical way to cross the country.”

    So the only way you can speak is on Facebook? Or Twitter? Or Google? (BTW, the fact that he’s suing 3 social media platforms should make it instantly clear to you that none of them is a “monopoly.”)

    “It is not a trivial argument.”

    You are correct.

    It is beyond a trivial argument.

  26. Bemused July 9, 2021 11:04 am

    Anon@24: Well said, my friend.

    There are many, many significant 1A issues implicated by Big Tech’s censorship of ideas they disagree with (and that should concern everyone regardless of political affiliation). If this lawsuit – regardless of the merits – results in a meaningful airing of those issues our country and the Constitutional will be well served by this case.

  27. AAA JJ July 9, 2021 12:09 pm

    “There are many, many significant 1A issues implicated by Big Tech’s censorship of ideas…”

    No, there are not.

  28. Night Writer July 9, 2021 12:44 pm

    @25 Curious

    You have lost your way. Regroup.

    @26 AAA JJ

    You still have not responded with any substance.

  29. Anon July 9, 2021 1:07 pm

    This:

    Get rid of Citizen’s United, get rid of gerrymandering, and make election day a national holiday. Citizen’s United now means that the rich few can dominate the airwaves to push their message. Gerrymandering is what permits extremists (on both sides of the aisle) to flourish. Making election day a national holiday would reduce the excuses for people not voting.

    I agree with each of these points
    (I have spoken out at length on the Citizen’s United matter).

  30. RTFMPEP July 9, 2021 1:13 pm

    @22
    “No rational person could get to that conclusion.”

    Wow! Says night writer the crazy person. Rational people rationally conclude your use of woke is you engaging in name-calling.

    You, on the other hand, are a rabid rightist that will attack anyone that doesn’t support your agenda. The fact is that you and anon regularly attack anyone that doesn’t agree with them. Face it. You are a fascist America-hating rabid animal and your tactics are as violent and intolerant as was Hitler, your fascist idol. Night Writet, you are everything that is wrong with the facist right, the clear and present danger to the Republic, and a cancer on America’s body politic that every True American Patriot would gladly excise, you treasonous America-hating filth.

    “I am a liberal D”

    You obviously need to lay off the crack pipe.

  31. Pro Say July 9, 2021 1:59 pm

    Ah, Trump. You just gotta ________ the guy.

  32. RTFMPEP July 9, 2021 2:01 pm

    @23

    “The whole problem is that they threaten your job”

    The only threat to your job is how much time you spend on IP boards during the day instead of you working. That and all the porn you view on your work computer, you degenerate.

    “They are violent dangerous people that have silenced rational debate in this country”
    You and your fellow America-hating fascist 1/6 Insurrectionists have amply demonstrated what violent filth you truly are. In the end, you and your fascist kind deserve the fate Ashli Babbitt so richly earned, America hater!

  33. IamI July 9, 2021 2:06 pm

    None of the “issues” in these lawsuits have legs. It’s Trump being Trump, airing his grievances to keep up the grift with his base. The suits will be dismissed in due course.

  34. AAA JJ July 9, 2021 3:41 pm

    “You still have not responded with any substance.”

    Your nonsensical rantings don’t require any substantive response. Your arguments and positions are silly. I am embarrassed for you that you would post them, even anonymously. They prove beyond any reasonable doubt that your are a very unserious person.

    All three of these ludicrously frivolous lawsuits are going to be dismissed for failure to state a claim.

    BTW, Curious demolished your silly arguments @25. You have no response (because there is none) so you resort to complaining that you’ve been called names. Which is quite rich coming from somebody who anonymously posts that federal appellate court judges are mentally unstable.

    It’s unbelievable to me that you can be a practicing lawyer and think that any of Drumpf’s nonsense has any legal merit. He knows it has no merit. The lawyers who drafted these complaints know that it has no merit. Yet you’ve concluded that there’s something there. Because…woke leftists!!!!! Or something.

    Sad.

  35. Curious July 9, 2021 3:44 pm

    You have lost your way. Regroup.
    FYI: When I get a non-answer in response, I count that as a victory.

    BTW — don’t take me as some lover of Facebook, Google, Twitter, whomever. However, I have great respect for the First Amendment, and there is no way this lawsuit has any legs. I would say the same even if there were 9 conservatives on the bench — not just 6.

    (I have spoken out at length on the Citizen’s United matter).
    I recall somewhat these conversations from the past. I forget who, but there were some here defending the decision. One of the principles underlying the First Amendment is that everyone’s speech should should be equally heard — even the speech that people disagree with. The remedy for bad speech is more speech. However, allowing corporations (also including unions) unfettered ability to (indirectly) funnel money to political campaigns gives them an outsized influence over the political process.

    Elections should reflect the will of the people (not including non-persons) — not the will of those with the most money to spend on negative campaigning.

  36. Night Writer July 9, 2021 4:26 pm

    @30 Anon: I agree with each of those points too.

    @31 RTFMPEP You obviously are into ad hominin attacks and accusing other people of what you do. You sound unhinged.

    @34IamI No substance to your response. I made a good argument.

  37. Night Writer July 9, 2021 4:52 pm

    Notice that RTFMPEP started all this name calling and did it intentionally to try and be disruptive and to threaten me. RTFMPEP is the root cause of this.

  38. RTFMPEP July 9, 2021 7:12 pm

    @38

    Notice that NW started all this name-calling with ‘woke’ and ‘neo-marxist’ and did it intentionally to try and be disruptive and to threaten me and anyone else who doesn’t agree with his neo-fascist rants. Night Writer is the root cause of this and represents how insane the Right has become in its hatred of traditional American notions of Justice and Fair Play.

  39. RTFMPEP July 9, 2021 7:55 pm

    @37

    You are obviously quite delusional from all that crystal meth you’ve been smoking, you rascist hairy-palmed degenerate fascist.

  40. Night Writer July 10, 2021 5:57 am

    @all RTFMPEP I characterized the “woke” as it is part of the legal argument. RTFMPEP then attacked me personally. You can feel the hatred and violence in RTFMPEP posts. He/she is a dangerous ideologue.

    @Curious and AAA JJ: I gave my opinion. I told you why. You yapped on about nonsense. Your only counterpoint was that they weren’t monopolies because there are more than one. But social media has more than one function and the test for a monopoly is market power. And we saw in the refusal to host market power and we see market power in many ways with FB and Twitter. But big picture is that I gave my opinion and you insulted me. You are becoming part of the “woke”. We can see that as Curious tried to smear me with advocating for Citizen’s United when I have on many occasions said that Citizen’s United is a terrible opinion and that Congress should enact a law to overturn it. You see how tribal their minds have become? They start to attribute all sorts of positions to anyone that doesn’t agree with them to their enemy tribe.

    I strongly suggest people read about how Mao took over China. I have friends that were there at the time and the “woke” are very much dangerous neo-Marxists. The cancel culture is violence and anyone that would cancel your life without due process would take your life without due process.

    Curious and AAA JJ–get that all I did was characterize the “woke” as it is part of legal argument as the “woke” movement are the ones exercising the power to curb speech. And what I wrote is something I’ve done 100 times on here and that is predict the outcome of a lawsuit. Here, I stick to what I said. I think there is something to this for the reasons I gave above. Try to reform yourselves. Maybe be deprogrammed. You two have lost all credibility with me.

    And the acid test is what happens next. My speculative prediction is that part of Trump’s lawsuit has legs. You “woke” or becoming “woke” decided this meant you had to try to take me down. Shameful.

  41. RTFMPEP July 10, 2021 2:39 pm

    Night Writer’s increasingly unhinged posts read like “Diary of a Madman” by Nikolai Gogol. He needs some thorazine.

  42. Curious July 10, 2021 5:02 pm

    Your only counterpoint was that they weren’t monopolies because there are more than one.
    No. That wasn’t my only counterpoint. I also said that even if they were monopolies it wouldn’t matter. There are very limited situations in which you can force a private company to do something that they don’t want to do. This is not one of those situations.

    But big picture is that I gave my opinion and you insulted me.
    These lawsuits are an insult to the First Amendment. You were given an opportunity to defend them, and you gave us nothing. I would be more than happy to have a civil debate over them, but you need to provide a better defense than what you’ve provided.

    We can see that as Curious tried to smear me with advocating for Citizen’s United when I have on many occasions said that Citizen’s United is a terrible opinion and that Congress should enact a law to overturn it
    I make no such attempt to tie you to Citizen’s United.

    The cancel culture is violence
    The “cancel culture” is practiced on all sides. Personally, I’m not a fan. If some may recall when Gene posted an article about Franklin Pierce college attempting to get rid of the associations to its namesake, I was on the side of not cancelling Franklin Pierce and I wrote quite a bit doing so (probably more than anybody aside from Gene).

    Try to reform yourselves. Maybe be deprogrammed. You two have lost all credibility with me.
    I’m sorry. Nothing about this lawsuit is defensible. This isn’t the only blog I comment on. I can count about a half-a-dozen blogs (including this one some time ago) where my opinions were not presented (i.e., cancelled) because it wasn’t a popular opinion for those running the blog. Was I happy about it? No. However, in each instance, I adjusted my commentary to be less inflammatory. They were all PRIVATE blogs and it is their right to choose what comments of mine to publish and what comments of mine to delete/not publish (i.e., censor). None of us (including former or current Presidents) have a right to post content on a private website that violates the terms of service of that website.

    You “woke” or becoming “woke” decided this meant you had to try to take me down.
    Do you need to go to your safe room? You do realize this was the same criticism leveled against many liberals after the 2016 election? They couldn’t handle the rejection so they supposedly needed someplace safe to go. Neither AAA JJ nor myself tried to “take [you] down” or cancel you. We disagreed with you. There probably isn’t a regular on this blog that I haven’t disagreed with at one point — oftentimes vehemently. Trust me, I’ve got reputations on other blogs as well for having a sharp pen — including blogs in which my opinions do not match up with the purveyors of those blogs. There is one blog where I’ve got my own personal cyber-stalker. The point being is that people disagree with me ALL the time — it happens, but I deal with it.

    If you want to earn my respect, then defend your position about this lawsuit. Seriously, I want to know why you think this “has legs.” Merely writing “You have lost your way. Regroup” is not going to cut it.

  43. Anon July 10, 2021 11:20 pm

    As to:

    These lawsuits are an insult to the First Amendment. You were given an opportunity to defend them, and you gave us nothing. I would be more than happy to have a civil debate over them, but you need to provide a better defense than what you’ve provided.

    ALL that I have seen is emotional invective with the mere assertion that these are somehow “heinous” to First Amendment law.

    I know quite a bit about First Amendment law and would actually enjoy some cognitive point to back up what so far is best characterized as OMB-TDS emotion.

  44. Anon July 10, 2021 11:22 pm

    I do not “get” the point that Greg DeLassus is trying to make with the tweets of some one else.

    The “argument by proxy” is not coherent.

  45. Arthur Flores July 11, 2021 2:22 am

    Could it be that Facebook is actually acting like a Publisher and is Editing our Posts? Every time I mention Covid-19, or related virus topics, they actually stick on a NOTICE on my Post or Comment. That is what an Editor does, right?

  46. Night Writer July 11, 2021 7:41 am

    @46 Anon

    I know. I made my points and said I don’t have time to do a deep dive but that I think it has legs. I think it was clear that it was a speculative prediction. The “woke” made no counterpoints other than “not monopoly,” which on its face is ridiculous. But OK. That is their counterpoint. Who knows maybe a judge will so hold.

    Arguing with the “woke” means arguing with arrogant Marxists that believe they start from the position of being right and you have to justify not believing what they believe. They freely defame you and don’t even seem to realize that they do so. I guess in the “woke” mind you are a lowlife as you are not “woke” and anything they do to you doesn’t matter. Notice the bizarre reference to the 2016 election and some kind of revenge talk as if I was part of some tribe they are fighting. They also attribute opinions to me that I don’t hold because I must be part of their enemy tribe. Their brains are clearly working on a tribal identity level.

    Pretty sure that RTFMPEP is MM as he/she plays the same sort of defamation and accuse others of what he is doing games. And then followed by some glib response as if all the defamation has just been a playful “got you” game.

    Anyway, enough of all that. These people are just dangerous.

  47. Anon July 11, 2021 11:46 am

    Night Rider,

    I hear you, but do not think that RTFMPEP is Malcolm Mooney.

    Malcolm Mooney has a very distinctive set of ‘fingerprints’ (I exposed his rampant sock puppet use over at PatentDocs – at the same time he was whining about multiple pseudonym use was the ‘worst thing ever’ at that other blog).

    RTFMPEP actually more reminds me of the one at that other blog that up to the “Hyatt v. Hirshfeld: A perfect storm that overwhelmed the PTO” thread had been running a perfect 100% directed to me (with 0% cogent legal content) count — in the hundreds of posts.

    That person and RTFMPEP both seem to share an inordinate view that the Patent Office must be correct in everything that they do, while also entertaining the Far Left ‘woke’ characteristics that you describe.

    The one distinction though that I have picked up is that the Shifting Historical Pseudonym’d one appears to be retired, while the poster here seems extremely young. Here, RTFMPEP does not seem to even recognize that ALL snark and no content carries zero persuasive effect (sure – it may resonate with like-minded lemmings, but such need no persuasion to continue marching up their hill).

    I do love the fact that those who are woke do not seem capable of recognizing that there are multiple reasons why people will disagree with them. THAT is a Malcolm Mooney attribute (the “anyone who disagrees with me MUST BE in the ‘same bucket’), but those who are not Malcolm go to the extreme to assert that you and I are the same person (which is clearly nonsense, as you and I have very distinct viewpoints).

    Overall, it is the LACK of cognitive critical thinking that is bane of many of those of the Liberal Left.

    I fully “get” why many do not like Trump. But the OMB-TDS onset of emotion and dropping any pretense to rational thought is just not the way to go. It is amazing that so many just do not seem to be able to grasp this.

  48. Curious July 11, 2021 12:50 pm

    ALL that I have seen is emotional invective with the mere assertion that these are somehow “heinous” to First Amendment law.
    Then you aren’t reading too closely. Although there a some different versions of this, let me repeat the following:
    They are PRIVATE companies. What part of PRIVATE don’t you understand? If 8chan and The Daily Stormer wants to stop hosting a website advocating for BLM, that is their right as well. They are PRIVATE entities who cannot be forced to host any content.
    Also:
    There are Federal/State anti-discrimination laws that prevent a business from discriminating based upon a protected class. However, being a conservative or a politician is not a protected class.

    The government isn’t in the business of telling private companies what speech they can or cannot. Although the First Amendment explicitly mentions Congress, it has been interpreted to apply to all branches of government.

    The “woke” made no counterpoints other than “not monopoly,” which on its face is ridiculous.
    I’ll repeat what I wrote to Anon … then you weren’t reading too closely. Neither of the two arguments I presented above relied upon a “not monopoly” argument and were both introduced early on in the conversation. Are you just going to continue to ignore that these arguments were presented in the hopes that they would go away? Additionally, I also made the argument (at least twice) that even if they were a monopoly, it wouldn’t matter.

    You spent 200+ words complaining about the “woke” yet you still fail to present an explanation as to why these suits have legs. I’m sorry, once you butted in, I’m not going to let you change the conversation.

  49. Night Writer July 11, 2021 3:51 pm

    @49 Curious

    >they are private companies

    I made my arguments and, of course, the underlying premise was that they were private companies and that is why all those points I made go to why the actions of a private company could be seen as government action or the government facilitating or directing the actions. That was plain on the face of my arguments. And–again–I made a quick speculative argument that I thought part of this had legs. You’ve yapped on and on about the 2016 elections, Citizens United, and endless attacked me. I guess you are being a good “woke” person.

  50. Anon July 11, 2021 4:30 pm

    Curious,

    Clearly, you have not been paing attention to the wrinkles of the Section 230 discussion.

    The notion of “but they are private and end of story” FAILS to account for when private and acting as a proxy for the government collide. See also the simple annotation that I have provided by way of the phrase: “Public Utilities Doctrine.”

    Freedom of Speech matters are NOT only constrained to “protected classes.” You are getting sidetracked there.

    As to “I’ll repeat what I wrote to Anon … then you weren’t reading too closely.

    YOU are the one not reading closely enough. The points being presented are NOT to you and you alone, so if you feel that you are not fully described by the OMB-TDS, then YOU need to realize that many here ARE.

    The fact of the matter as to why these suits MAY have legs have everything to do with something you seem intent on disregarding: the implications of Section 230. Yes – even (or perhaps more accurately, especially) for Private Actors.

  51. Curious July 11, 2021 10:45 pm

    all those points I made go to why the actions of a private company could be seen as government action or the government facilitating or directing the actions.
    You mean this?
    And–frankly–from a functional perspective the government could allow a few large media companies to become monopolies and then control content by giving them special favors like section 230.
    There are some logical and factual problems with these assertions. As many legal commentators have already pointed out (elsewhere), the plaintiff was banned while he was head of the government. Is there an argument to be made that he banned himself? Of course, this is silly … but then again, so is this lawsuit.

    Oh, and “special favors” were not granted to anybody. Section 230 applies to ALL internet content providers — in case you are wondering, I would imagine that there are TENS OF THOUSANDS of internet content providers based in the US. Monopoly … really?

    all those points I made go to why the actions of a private company could be seen as government action or the government facilitating or directing the actions.
    This is by Judge Kavanaugh in Manhattan Community Access Corp (2019): ““[M]erely 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.”

    You’ve yapped on and on about the 2016 elections, Citizens United, and endless attacked me. I guess you are being a good “woke” person.
    You stuck your nose into these matters and it got punched. Be a man and punch back … if you have it in you. Complaining about me being “woke” is a lousy counterpunch.

    The points being presented are NOT to you and you alone
    When you quote my writing, I assume you are addressing me. Also, you prefaced your comment by “ALL that I have seen.” That “ALL” includes me — does it not?

    you seem intent on disregarding: the implications of Section 230. Yes – even (or perhaps more accurately, especially) for Private Actors
    I never relied upon 230 in my opinion that these lawsuits are going nowhere. Have you read 230? This is the Civil Liability provision — subsection (c)(2):
    No provider or user of an interactive computer service shall be held liable on account of—
    (A)any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or
    (B)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).

    Tough argument to make that this violates the 1st Amendment. Notably, the only statements made in the Twitter and Google complaints regarding Section 230 or “state actor” are in the 3rd and 13th enumerated paragraphs. They are entirely conclusory in nature. I’ve seen one-page 101 rejections from Examiners that have more meat in them than this complaint.

    And seriously, do you really think the courts (and this includes the Supreme Court) want to open up the can of worms that would follow a finding that somehow Google, Facebook, and Twitter are government actors? What kind of twisted logic would the courts have to engage in to get there? Imagine the kind precedent that would set — if Twitter has to reinstitute Trump’s twitter account, then what, for example, is to prevent EFF from suing to have their anti-patent missives presented on this blog?

  52. Night Writer July 12, 2021 4:03 am

    @52 Curious

    Wow. All this time and finally you get it. Finally you respond with substance. I get all those points Curious. I did when I first wrote my speculative prediction.

    The counter to this is 1) Section 230; 2) monopoly; 3) companies applying their own private editorial content and not applying a consistent set of policies; and, 4) the government involvement in (3).

    I get and got from the start that there are many counter veiling forces and arguments. And we will see if it has legs that is why it is speculative prediction.

    But I stick with what said at the start.

  53. Night Writer July 12, 2021 4:16 am

    The key to understanding why this might have legs is the monopolistic nature of the large social media companies.

    And a judge may feel that at the very least that discovery is warranted to see the extent of (4).

    Your other points are easily distinguishable by facts. For example, with the EFF example, this blog is not a monopoly and far from it. The suppression effect of ipwatchdog not publishing a comment or post is small. There are many other blogs with substantial participation and many other outlets. Plus I don’t think that ipwatchdog even edits EFF but assume they did. Plus there appears to be no connection in (4).

    Again, this is a bit ridiculous as I listed the reasons why I thought it might have legs and you have gone and just presented the standard arguments as if I didn’t think of them.

    Just a silly waste of time. Time will tell what happens.

  54. Stephen Potter July 12, 2021 9:27 am

    A bizarre selection of sad comments…

    As my grandmother used to say “They’re not all “inside” you know, ducks….!”

  55. Curious July 12, 2021 10:11 am

    Just a silly waste of time.
    Nailed that one. Trump is hoping that it gets thrown out with a 12(b) motion. He does not want to be subject to discovery regarding the events leading up to and involving January 6th. This is all about fund-raising and trying to shift the narrative as his own personal legal troubles get put into the spotlight.

    3) companies applying their own private editorial content and not applying a consistent set of policies; and, 4) the government involvement in (3)
    Are you saying that the government that Trump headed (at the time) was involved in getting him banned from Twitter? In case you forgot, Trump had nearly unfettered access to social media for the vast majority of his presidency. He had violated Twitter’s TOS so many times that THEY HAD TO CREATE AN EXCEPTION TO KEEP TRUMP on the platform.

    It was the events of January 6th (and his role therein and reactions thereto) that got him in trouble. Let’s not forget what happened that day. When I picked up my young son at school that day, I told him about what I saw on the television and told him that this is a day they’ll be talking about 50 years from now. I recall watching Tucker Carlson’s opening monologue that same day — even he seemed taken aback by the day’s events. Do you not recall what Mitch McConnell said on the floor of the Senate after voting to acquit Trump in the 2nd impeachment trial: “Let me just put that aside for a moment and reiterate something I said weeks ago. There’s no question, none, that President Trump is practically and morally responsible for provoking the events of the day. No question about it.”

    What do you think that crowd would have done had they found Mike Pence that day? This after Trump tweeted out: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”

    Trump wasn’t being “censored” because he was espousing conservative views — he had been espousing his views for years and years and years on social media. He was de-platformed by Google, Twitter, and Facebook because of his role in what happened on January 6th.

    Let’s not forget any of that.

  56. Anon July 12, 2021 10:13 am

    Night Writer,

    May I suggest that the term “market power” is a better one than “monopoly?”

    The aspect directly on point to the Section 230 interaction is the ability of the carrier to shape the message. This goes beyond mere editing, and very much goes to which content is being permitted.

    The Social Media sites that are the target of the suit very much ARE wielding a level of editorial control and shaping of message that goes well beyond the contours of Section 230.

    As a matter of fact, this very notion was raised “on that other blog” several years ago when the ‘editing rules’ were being — shall we politely say — “unevenly enforced?”

    When an editor takes an active role in shaping the message, they LOSE the ‘common carrier’ notion and associated protections.

    This DOES have ties to First Amendment law and the chilling of speech precisely because the government HAS stepped in and set up special dispensations – dispensations based on content neutrality and LACK of control. When Big Media exhibits the very opposite of that LACK of control, we ALL end up with serious problems, a dystopian 1984 environment and erosion of the basis of First Amendment principles.

    As you note (correctly) there ARE a lot of moving parts, and these suits may in fact be dismissed.

    But to take a OMB-TDS stance and dismiss out of hand is not only clear error, but shocking behavior from supposed attorneys who SHOULD have a better sense of the process of law.

    Like you, I am NOT a “Right Winger.”
    Like you, I am wrongly characterized as such – merely because I am actually sticking up for the bedrock propositions of this country and the US Rule of Law.

    Curious, I think that you go astray between the concept of notice pleading and proving a case.

    Additionally, the banning of a person – even that person being the president – does NOT remove the legal connection of de facto government implications. Your suggestion of this is a complete red herring.

    I do not abide by all of Night Writers assertions, and my comment to the effect that “Woke,” “Liberal Left,” and “OMB-TDS” applies to those who exhibit those behaviors, This may be you to a certain degree, but that mileage may vary. (you ARE included to the degree to which your views reflect the comments). As Night Writer points out, your last comment DOES provide more substance than merely the “I feel” sense prior to that comment. Read again the flow here – the initial comments entirely lacked even the hint that the complaints were actually read (as opposed to your identifying particular complaint paragraphs). Note my rebuttals along the way – to the points as they evolve.

    Quite to the contrary about ‘Complaining about anyone being “woke” being a weak counterpunch’ – you could not be more wrong, as the point that there is a cessation of cognitive processing BECAUSE of “woke” is in fact very much on point.

  57. Greg DeLassus July 12, 2021 12:40 pm

    1) Section 230; 2) monopoly; 3) companies applying their own private editorial content and not applying a consistent set of policies; and, 4) the government involvement in (3)… The key to understanding why this might have legs is the monopolistic nature of the large social media companies.

    That §230 “key” is a pretty weak reed on which to hang this argument. No matter how “monopolistic” Twitter or Facebook might be (and I agree with Curious that they are not all that monopolistic when you start trying to assemble the sort of evidence necessary to prove a monopoly in court), none of the social media companies are more monopolistic than a regulated utility. Nevertheless, the Court said in Pacific Gas and Electric Co. v. Public Utilities Commission, 475 U.S. 1 (1986) that regulated utilities have free speech rights and cannot be compelled to serve as a forum for speech with which they do not agree.

    When you strip away all of the partisan-charged self-pity, that is all Trump is suing to achieve—to force a private company to serve as a forum for speech with which they disagree. The question of whether it makes a difference to the analysis whether the private company has a lot of market power or extensive ties to the government is a question that has been asked and answered—those considerations do not outweigh the company’s free speech rights.

  58. Night Writer July 12, 2021 1:13 pm

    @57 Curious–your comments are just strange the way your are bringing in all these political considerations and trying to paint me as someone that is defending Trump. Just weird. The big picture–writ large–is that we have seen something very new in this world where internet companies silenced a president who had not been convicted of a crime. That, in and of itself, illustrates the power and illustrates why the court may consider portions of the lawsuit.

    @58 Anon. I largely agree with what you wrote. If you read my comments above you will see that I use the term “market power” to describe who to judge whether the social media companies were actually monopolies.

  59. AAA JJ July 12, 2021 2:31 pm

    “…we have seen something very new in this world where internet companies silenced a president who had not been convicted of a crime.”

    He’s been silenced?

    Do yourself and put the shovel down.

    Sheesh.

  60. Night Writer July 12, 2021 3:31 pm

    @59 Greg

    Is that the right example or is more like the telephone company refusing to provide a telephone to a person 50 years ago because they don’t like their political views?

  61. Curious July 12, 2021 4:57 pm

    Curious–your comments are just strange the way your are bringing in all these political considerations and trying to paint me as someone that is defending Trump. Just weird.
    This is all about politics … what is so weird about addressing political considerations? You are certainly defending his legal arguments — and neither he nor his lawyers haven’t been recently known to put together solid legal arguments.

    we have seen something very new in this world where internet companies silenced a president who had not been convicted of a crime
    I love how your (and his) assertions of facts are divorced from reality. The former president was not silenced. There are a great number of forums by which he could get his message across. He could issue press releases. He could do press conferences. He could do a radio address. He could go on Fox News. Heaven forbid — he could do an interview on one of the other national networks to get his message across. Presidents have been getting their messages to the people the first couple hundred years of this country’s existence prior to social media. They weren’t silenced prior to social media, and they aren’t silenced for lack of social media. Trump doesn’t get to do (or say) whatever he wants because he is/was the President.

    Trump was de-platformed by these private companies because they determined that he violated the terms of services (TOS) of those entities. He got far more second chances than either you or I would have gotten.

    That, in and of itself, illustrates the power and illustrates why the court may consider portions of the lawsuit.
    Social media companies being powerful does not transform them into state actors. Let me repeat what Judge Kavanaugh wrote: “[M]erely 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.” Being powerful or having market power isn’t enough.

    as the point that there is a cessation of cognitive processing BECAUSE of “woke” is in fact very much on point.
    I see you are engaged in the right-wing version of TDS. Just because I have an opinion perhaps shared by the “woke” doesn’t mean I came across that opinion via “a cessation of cognitive processing.:

  62. Anon July 12, 2021 7:20 pm

    I see you are engaged in the right-wing version of TDS

    Happened to scroll all the way down and this was the first thing that I saw.

    Had to laugh because you sink right into a Liberal Left fallacy.

    I am NOT right-wing, and my statements are in fact centrist.

    Do you think Joe Rogan is “right-wing?”

    (serious question)

  63. Night Writer July 13, 2021 4:22 am

    @47 Arthur Flores Could it be that Facebook is actually acting like a Publisher and is Editing our Posts?

    Sure. But that conflicts with section 230 and also raises issues about whether Facebook is a monopoly. What if the phone company 50 years ago beeped out your conversations if you said things they didn’t like?

    @Curious–just weird that you can’t discuss these issues without your tribe identity controlling your thoughts. It is scary to see once rational people become one of the “woke.” It is just weird that you keep bringing up political issues. I’ve made my points clear. I think it has legs for the reasons I stated and you have said nothing that I did not consider before making my prediction. The “woke” come into this because they are a political group that is trying to restrain free speech. They are the impetus behind the movement to control people’s speech.

    It does not matter to me whether it is the left or the right. What matters to me is that I do believe that social media is restricting our rights under the Constitution and I think that the federal government is part of by Section 230 and by other means. That simple. The sad thing is that your mind is gone Curious and you can’t even understand my position anymore. You have devolved into tribal thinking.

    “Judge Kavanaugh wrote: ‘[M]erely 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.'”

    Curious do you get I made a speculative prediction? What Kavanaugh wrote can be distinguished from the facts because of Section 230 and the fact we aren’t talking about “merely hosting” but editing. And “merely hosting” implies no monopoly power or market power but I think there is market power.

    @Gene I have been a member of these discussions for many years. In fact, I think I was one of the people that helped to promote discussions on this blog when few people participated. Please remove RTFMPEP. He/she obviously is just trying to smear people.

  64. Anon July 13, 2021 7:55 am

    Bingo:

    can be distinguished from the facts because of Section 230 and the fact we aren’t talking about “merely hosting” but editing.

    Too many people are “seeing” an Ends and dismissing the Means.

  65. Anon July 13, 2021 1:32 pm

    Possible “collision” for the Liberal Left (note the point about moving away from the Chicago School as recognizing concentrated power danger to Speech):

    https://www.brookings.edu/blog/techtank/2021/07/08/the-debate-on-antitrust-reform-should-incorporate-racial-equity/

  66. Anon July 13, 2021 9:21 pm

    RFTMPEP,

    Thank you for the opposite-effect statement.

    I rest my case – you make me correct more than you can ever imagine.

  67. B July 14, 2021 3:34 pm

    “Any and every attorney who signed these ridiculous complaints should be disbarred”

    Translation: “Waaaaah, the bad orange man is doing something I don’t like.”

    Have you even read the complaint? I’m not saying Trump will or will not win. What I do know is that there’s precedent that favors Trump, and there’s a lot of people concerned about our tech overlords

  68. B July 14, 2021 5:29 pm

    @ RTFMPEP “Anon, everyone knows you live in Bizzaro World so by your own admission you have lost thanks to the brass knuckles of truth slamming into and fracturing your jaw of an arse, you degenerate America-hating fascist filth!”

    Dude, you have never once made a statement of substance on this forum.

    Not one.

    There’s an official website for people with your out-of-control rage and mental disorders called “Twitter.”

    Be off, troll

  69. Anon July 15, 2021 6:58 pm

    Yet again, RTFMPEP displays abject ignorance.

    I will point out (again) that “B’s” identity is known, and he even occasionally writes guest articles.

    But you keep on being you.

  70. Anon July 16, 2021 3:35 pm

    What exactly was “showing addled thinking” there, RTFMPEP?

    These choices of yours…

  71. B July 16, 2021 6:46 pm

    @ AAA JJ “B-b-but did you actually read one?!”

    I read all three.

    I prefer to be informed on an issue b/f posting about said issue.

    You should try it.

  72. Anon July 17, 2021 5:55 pm

    RFTMPEP

    Y
    A
    W
    N

    There just is no shock value, nor value of any kind, in your diatribe.

    Do you understand why?

  73. Anon July 18, 2021 5:52 pm

    How about you post something that does not induce a yawn? Maybe your first ever on point to a legal topic, cognitive post ?

  74. Anon July 19, 2021 9:08 pm

    Asked and provided (but you do kind of have to pay attention, and it would help you to understand what being pro-patent means).

  75. Gene Quinn July 20, 2021 4:56 pm

    RE: @RTFMPEP

    Hello everyone. Eileen has brought this to my attention. We try really hard not to ban anyone, but name calling and other stupidity engaged in by RTFMPEP is clearly more appropriate for other outlets on the Internet. So, RTFMPEP is banned.

    Cheers!

    -Gene

  76. Stephen Potter July 21, 2021 5:04 am

    Thanks, Gene!

  77. Obviate July 21, 2021 1:37 pm

    Yet no punishment for Anon, Night Writer or others on the Political Right who engage in name-calling and after hominem attacks. Got it.

  78. Eileen McDermott July 21, 2021 2:21 pm

    If you point them out I’ll delete, and I did delete a few vulgar comebacks – but what I mostly saw was RTFMPEP calling everyone vulgar names that had nothing to do with the substance of the argument.

  79. Anon July 21, 2021 2:42 pm

    Obviate,

    First, I am NOT of the Political Right (and neither is Night Writer, by the way). I am a Centrist.

    Second, the use of sharp words – in and of themselves – is NOT the issue. I am a firm believer that such words can be a legitimate assault on the unthinking. See John Maynard Keynes https://www.brainyquote.com/quotes/john_maynard_keynes_129878

    It is when the person wielding the sharp words refuses to engage on ANY merits, that such behavior warrants sanctions.

    I am — and always have been — able to engage on the merits.

  80. Anon-noyed July 21, 2021 4:55 pm

    “I am a Centrist.”

    Bwhahahahahahahaha! Oh, that was a good one!

    “I am — and always have been — able to engage on the merits.”

    LMAO! What an amusing perception of reality you have!

  81. Anon-noyed July 21, 2021 4:59 pm

    @80

    How about just deleting all the posts where certain individuals attack others as being “woke”, “neo-marxist” or the like? Failing to address that simply invites retaliation in the “racist”, “fascist”, “Nazi” and the like.
    That way, people will stick to the merits of the topic rather than launching personal attacks.

  82. Anon July 21, 2021 9:24 pm

    Anon-noyed,

    You laugh – but without cause. Let me ask (again) – do you think Joe Rogan is “Right Wing?”

    To your question of “why not,” the answer is simple: the state of being woke (and the like) is material to the points and — critically — to the positions on those points.

  83. B July 21, 2021 11:26 pm

    @ Anon-noyed “How about just deleting all the posts where certain individuals attack others as being “woke”, “neo-marxist” or the like?”

    I never knew the term “woke” was offensive to the woke.

    @ Anon “Let me ask (again) – do you think Joe Rogan is “Right Wing?”

    Dude, these people think Glen Greenwald is right-wing. Free speech, due process, equal protection are all “right wing” these days. Lower taxes and reduced regulation are “fascist.” Soup, cereal, and weather are “racist.”

  84. Anon July 22, 2021 8:42 am

    B,

    To your point of, “I never knew the term “woke” was offensive to the woke.

    It is considered ‘offensive’ in a Wizard of Oz, ‘pay no attention to that man behind the curtain’ manner. When the roots of Neo-Liberalism (and identity politics) are explored, the Liberal Left do not want ANY actual critical thinking to be around.

    In this sense, rationalism is itself “racist” (as can be seen in claims that “math is racist”).

  85. B July 22, 2021 12:20 pm

    @ Anon “In this sense, rationalism is itself “racist” (as can be seen in claims that “math is racist”).”

    Well, if you start with the assumption that racism is there whether anyone in the room can see it or not, you don’t need to argue the issue and can immediately proceed to monetary redistribution while feeling morally superior.

    Meanwhile, black children won’t feel compelled to work harder in math class, and if math is racist, why should they want to learn math at all?

    Identity politics is slavery and oppression.

  86. Moderate Centrist Independent July 24, 2021 4:56 pm

    Quite true, and that is why the Political Right is all about identity politics so they can continue the slavery and oppression of non-whites through continued voter suppression and appeal to white supremacist beliefs in order to retain GOP power that is disproportionate to its declining numbers.

  87. Anon July 27, 2021 9:49 am

    MCI,

    You appear to be the same person that was recently banned, or perhaps a reflection of Anon-noyed, with the take on my political position being a Centrist.

    That being said, your statement is objectively false on a number of points.

    The Political Right is not the party that indulges in identity politics being your major error. It is well known that it is Neo-Liberalism and the political reflection of that philosophy in the Liberal Left that is the primary purveyor of identity politics.

    Further, the plain historical facts show the opposite of your attempted sleight: that the party against slavery and oppression were the Republicans (the party of the “Right.”

    Certainly, politics are not ‘black and white,’ and many of the actual centrist-leaning members of BOTH parties are appalled at the extremes within their parties.

    On the Right though, this is much more in evidence (see the likes of Ben Shapiro).

    On the Left, the extremes currently rule the day, and anyone NOT “left enough” is branded a Right Wing extremist. See my prior posts asking about how people feel about Joe Rogan.

    Your diatribe comes across as mere Liberal Left speaking points – propaganda of the unthinking.

  88. B July 27, 2021 8:43 pm

    @ Anon “You appear to be the same person that was recently banned, or perhaps a reflection of Anon-noyed, . . . .”

    Absolutely — although I’m guessing that banned guy. Sub-par intelligence. No substance.

    Meanwhile, Jen Psaki might have well as handed Trump a verdict with her public pronouncement that the Whitehouse was working hand-in-hand with FB et al. to identify “disinformation.”

    Expect thousands of government emails to disappear the moment subpoenas are issued.

  89. Anon-noyed August 1, 2021 7:30 pm

    The Political Right has been playing the race card since before the Civil War.

    Anon can’t grasp that fact that he is not a centrist or anywhere near the middle. Anon’s talking points are common among the authoritarian fascist right.

  90. Anon August 1, 2021 7:40 pm

    Anon-noyed,

    You are completely wrong – as a matter of objective historical fact, as a matter of understanding political philosophy, and as a matter of observation.

    Three strikes in one swing — back to the bench for you.

  91. Anon-noyed August 2, 2021 2:28 pm

    Wrong, Anon. Southern Conservatives have been playing the race card since before the Civil War. It’s well known fact, but facts aren’t important to your kind. But, by all means, keep humiliating yourself with your right-wing historical revisionism.

    You lose again! Game, set, and match!

  92. Anon August 2, 2021 3:48 pm

    Except not — your version of Southern Conservatives playing the race card is NOT what is meant by Identity Politics.

    Identity Politics is a term of art related to Neo-Liberalism.

    The only person humiliating themselves is you.

  93. B August 2, 2021 5:10 pm

    @ Annoyed “The Political Right has been playing the race card since before the Civil War.”

    Barack Obama is part of “the Political Right?”

    Who knew

  94. Anon-noyed August 2, 2021 5:29 pm

    You think Barack Obama has been around since before the Civil War, B-dragled? You really have gotten used to making up your own “facts”.

  95. Moderate Centrist Independent August 2, 2021 9:59 pm

    “— your version of Southern Conservatives playing the race card is NOT what is meant by Identity Politics”

    Stop twisting everything to your warped definitions. Conservatives have been race-baiting sine the founding of the Republic, what ever they called themselves or how you want to call things is irrelevant because the facts remain.
    Now stop harassing people because they call you out on your lies about race politics in America.

  96. B August 3, 2021 12:08 am

    @ Annoying “You think Barack Obama has been around since before the Civil War, . .. ”

    You really are dim and bad at reading comprehension

    buh bye

  97. Anon August 3, 2021 7:30 am

    MCI,

    That’s just it — I am not twisting anything because the term of art is not anything that I have made up.

    That you lack understanding of the terms of art being used only means that you lack understanding.

    Please educate yourself on the topic that you want to discuss.

  98. Anon August 3, 2021 1:52 pm

    MCI,

    Repeating yourself just does not change reality — your assertions (including your own ‘back-slapping’ “win”) remain fallacies.

  99. Anon-noyed August 3, 2021 3:36 pm

    Your Trump-like denial of reality speaks for itself, Anon. But, by all means, keep on being the Fuhrer in the Bunker shouting out orders to non-existent troops as the Soviets enter Berlin. We all know what happened to that guy in the end when he couldn’t face reality.

  100. Anon August 3, 2021 6:58 pm

    Anon-noyed,

    Did you mean to use that moniker in speaking “for” MCI?

    Tell me – are you using a fake email address?

    Or would answering truthfully be your own ‘bunker’ situation?

  101. Anon-noyed August 3, 2021 9:04 pm

    @104

    See Post 103.

    Stop harassing people or you will be banned.

    Bye, Felicia.

  102. Moderate Centrist Independent August 3, 2021 9:45 pm

    “Repeating yourself just does not change reality”

    That’s your playbook, Anon. And it’s a failed strategy on your part.

  103. Anon August 4, 2021 6:51 am

    You confuse yourself my friend. I state facts because they are facts. They are not facts because I state them. Thus, the repetition that you may say from me doesn’t change the underlying aspect — but need not. On the other hand, you state something and that something is shown to be objectively false. It cannot become true merely because you state it again.

    Anon-noyed, you provide another fingerprint by chiming in and asking something to be stopped in error. Truth is a total defense to a charge of harassment.

    You are free not to like the truth.
    You are not free to shut down the truth just because you don’t like it.

    This is a critical lesson — not just for you, not just for MCI, not just for anyone recently banned, certainly not for those that see “Anon” as a poster and are immediately engulfed in emotion, but for society (particularly US society) at large.

  104. Anon August 4, 2021 7:00 am

    … one key difference here is provided in another thread in which I plainly state that I “enjoy the dance.”

    MCI immediately takes this in error. I enjoy the free exchange and debate. I am not looking to shut anyone down. But I do look for substance in those debates, and the recently banned person (to whom MCI deeply reflects) was banned because he could not muster any substance.

    That type of posting might fly on that other blog (leastwise, for awhile and until a consistent and greater than 98% obsess10n factor shows cyber stalking, at which point even the editors there had to take some action).

    Rough and tumble is ok with me** — but you do need to include some substance with that rough and tumble. Merely repeating items known to be false simply is not substance. The old Malcolm Mooney tactic of Accusing Others Of That Which You Do is not substance. By and large, we are attorneys here. Those shallow tactics are quite evident, and simply fool no one.

    ** I have often referred to this as JMK or John Maynard Keynes treatment.

  105. Anon August 4, 2021 8:05 pm

    Another fingerprint: copying and pasting the exact same response across multiple threads….

    See the other thread for the same rebuttal.

  106. Anon August 5, 2021 9:20 pm

    Your reply is baseless and says nothing.

    I am not surprised.

    Maybe a point that we can discuss, perhaps…

    How do you define “harassment?”

  107. Anon August 6, 2021 5:15 pm

    As I already noted- enjoy the dance is NOT harassing, but the exchange with people.

    My posts simply are NOT textbook examples of harassing. It is telling that you are NOT engaging in any meaningful manner – like for example, answering any of the questions with which I am attempting to engage with you (that would move the conversation forward).

  108. Anon August 6, 2021 7:05 pm

    Your statement is self-defeating.

    Are you not paying any attention whatsoever to patent law discussions that I provide substantive positions on?

    Please come up with a better tactic.

    (At least this time, your post was not a direct cut-n-paste, but that’s hardly even a nudge in the right direction)

  109. Anon August 6, 2021 10:46 pm

    You are repeating a falsehood.

    Shall I setup a payment mechanism to make some side money off of your choices?

  110. Moderate Centrist Independent August 8, 2021 11:03 am

    You are only lying to yourself. Everyone sees right through your obfuscation.
    Stop the harassment.

  111. Anon August 8, 2021 12:13 pm

    Is that it is your posts that have been removed?

    So tell me, what exactly is my lie? What exactly is my obfuscation?

    Do you know what those terms mean?

    Then tell me, how are you defining harassment?

  112. Moderate Centrist Independent August 9, 2021 11:26 am

    Your harassment continues and you are still lying to yourself with your self-delusions.
    Stop the harassment.

  113. Anon August 9, 2021 1:52 pm

    The types of posts that have been expunged continue from you – as does the evasion from actually engaging in any merits to verify your assertions.

    I do have to wonder why you continue to choose this style of “game.”

  114. Moderate Centrist Independent August 9, 2021 3:24 pm

    Your harassment continues unabated and the Tiffany Cunningham thread was shut down after someone complained about your lack of self-restraint and lack of good judgment.
    Stop the harassment.

  115. Moderate Centrist Independent August 9, 2021 3:27 pm

    Harassment is no game but it is not surprising that you see it as one.
    Stop the harassment.

  116. Anon August 9, 2021 6:23 pm

    Your mantra remains unsupported

    You refuse to even attempt to explain what you mean by “harassment,” whereas I have clearly set forth items that are NOT harassment (and that which you may merely not like).

    Why do you think that it is your comments that have been expunged?

    Serious question.

  117. Moderate Centrist Independent August 9, 2021 7:26 pm

    Why do you believe you are seen as lacking self-restraint and lacking good judgment?
    Your harassment is on full display.
    Stop the harassment.

  118. Anon August 10, 2021 7:44 am

    B,

    I am not familiar with that specific image, but I tend to view my interlocutor more like:

    https://images.app.goo.gl/aF4EooVC8zw2pU5r8

    Currently, that person is fixated on a single post by “Zete4vr,” who has only but a small handful of posts on patent blogs, is evidently an examiner with a Liberal Left viewpoint, and to whom, the art of debate is also a mystery.

    MCI remains without a case, and cannot even figure out a first step towards making a case. As I have provided, merely not liking something does not rise to harassment. Engagement — no matter how others may feel about ‘wisdom’ of not engaging — is not, and cannot be, harassment.

    My interlocutor is on a blog involving law (and thus lawyers). Assertions such as his simply do not carry, and while I certainly respect anyone else’s choice to disengage, the choice to engage remains a proper one.

    Perhaps his focus would be better spent less on the words of Zete4vr, and more on the fact that it is HIS words that have been expunged.

    Maybe (just maybe) my interlocutor can take a step back and sharpen his interaction skills. To be able to express what one likes and dislikes — and to be able to debate such — is an important life skill.

  119. Anon August 10, 2021 7:52 am

    The irony of the exchange may be seen by reflecting above the quote that appears under the title of this article:

    Censorship runs rampant against the Putative Class Members, and the result is a chilling effect cast over our nation’s pressing political, medical, social, and cultural discussions.”

    My interlocutor’s baseless calls of harassment are nothing more than an attempted call for censorship.

    The fact that I choose to continue to engage is less of something “locked in struggle,” and more of me merely refusing to bow to some type of heckler’s veto.

    https://youtu.be/PWbguNBOv3U