Hard Cases…

As I used to tell my students, cases rarely make it to the Supreme Court unless they’re difficult–unless there are persuasive arguments on both (or several) sides of the issue or issues involved. That admonition has actually become debatable as the current Court, dominated by religious “originalists,” has accepted cases that previous Courts wouldn’t have agreed to hear, but it remains largely true.

And hard cases, as the old legal precept warns, make bad law.

Which brings me to a First Amendment Free Speech case currently pending at the U.S. Supreme Court.

The question before the Court is the constitutionality of laws passed by Florida and Texas that restrict social media giants from removing certain political or controversial posts–in other words, from moderating the content posted to their platforms. As the Washington Post reported,

During almost four hours of argument Monday, the Supreme Court justices considered whether state governments can set the rules for how social media platforms curate content in a major First Amendment case with implications for the future of free speech online.

The laws being litigated are an effort to prevent social media companies from removing “conservative” viewpoints. The laws would impose strict limits on whether and when firms can block or take down content on their platforms.
At the heart of the matter is the issue highlighted by an exchange between Justice Alito and lawyer Paul Clement.
Justice Samuel Alito pressed NetChoice — a group representing the tech industry — to define the term “content moderation,” asking whether the term was “anything more than a euphemism for censorship.” “If the government’s doing it, then content moderation might be a euphemism for censorship,” said Paul Clement, an attorney representing NetChoice. “If a private party is doing it, content moderation is a euphemism for editorial discretion.”
I’ve frequently posted about Americans’ widespread lack of civic literacy–especially about censorship and freedom of speech. It is depressing how few citizens understand that the Bill of Rights is essentially a list of things that government is forbidden to do. Government is prohibited from dictating our beliefs, censoring our communications, searching or seizing us without probable cause, etc. Those restrictions do not apply to private actors, and for many years, courts have recognized the right of newspapers and other print media to decide what they will, and will not, print, in the exercise of their Free Speech rights.
Perhaps the most important question posed by the recent First Amendment challenges to Texas and Florida’s new social media laws is whether platforms exercise a constitutionally protected right to “editorial discretion” when they moderate speech. The platform’s central challenge to both laws is that their must-carry and transparency obligations infringe on that right by interfering with the platforms’ ability to pick and choose what speech they host on their sites. It’s the same right, they argue, that newspapers exercise when they pick and choose what speech appears in their pages.
In other words, whose First Amendment rights will we protect? Or to put it another way, does the First Amendment give all of us a right to have our opinions disseminated by the social media platform of our choice? Or, to ask that in a different way, if the First Amendment protects speech, does it also protect the right of powerful social media companies to suppress the speech of some number of people who use their platforms?
The Knight Foundation argues
The First Amendment is not concerned solely—or perhaps even primarily—with the maximization of speech per se. Instead, what it protects and facilitates is the kind of information ecosystem in which free speech values can flourish. Courts have recognized that protecting the right of speech intermediaries to choose what they do and do not publish—in other words, protecting their right to editorial discretion—is a necessary means of creating that kind of environment.
Most of us have concerns about the content moderation policies of these enormously influential and powerful sites. The question before the Court is–once again–who decides? Are those who run those sites entitled to decide what appears on them, or can government control their decisions?
Elon Musk’s takeover of Twitter (now ridiculous “X”) and his idiosyncratic definition of “free speech” has turned that site into a cesspool of anti-Semitism and conspiracy theories. The First Amendment currently gives him the right to make the site odious, just as Facebook has the right to remove racist and other objectionable posts. We the People decide which platforms we will patronize.
As I used to tell my students, the Bill of Rights addresses a deceptively simple question: who has the right to make this decision?
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Oh Texas….

I know that Florida, under Ron DeSantis, deserves all the shade being thrown at it. But Florida–and that ubiquitous “Florida man”– is facing a strong challenge from Texas.

Most recently, of course, we’ve been treated to the spectacle of Ken Paxton’s willingness to cause the death of a pregnant woman–a mother of two–who obtained a court ruling permitting her to abort her current pregnancy. That decision was based on testimony that her fetus had been found to have a condition that would prevent its survival, and that continuation of the pregnancy would endanger the woman’s life–or at the very least, her ability to have future, healthy pregnancies.

As I noted a couple of days ago, Paxton appealed that court decision and the Texas Supreme court overruled it.

A federal court  has ordered Texas Governor Abbott to remove the lethal barriers he had placed in the Rio Grande, after a lengthy battle during which Abbott defended placement of the impediments, which had caused the deaths of at least two people.

In case there is any confusion, these examples confirm the accuracy of accusations that these Texan staunchly “pro life” Republicans have very selective definitions of “life.”

And then there’s the refusal of the Texas GOP to distance the party from Nazism.

The leadership body for the Republican Party of Texas this week voted down a measure to block members from associating with people and organizations “known to espouse or tolerate antisemitism, pro-Nazi sympathies or Holocaust denial.” This came just weeks after neo-Nazi extremist Nick Fuentes was photographed meeting with a high-profile conservative political operative whose “Defend Texas Liberty” PAC has helped elect Republicans statewide.

The clause, part of a broader resolution in support of Israel, was voted down 32-29 by the Texas GOP’s Executive Committee on Saturday, according to The Texas Tribune. Moreover, “roughly half of the board also tried to prevent a record of their vote from being kept,” in a move that “stunned some members,” the paper reported. Speaking during Saturday’s vote, Texas GOP chair Matt Rinaldi claimed that he didn’t see “any antisemitic, pro-Nazi or Holocaust denial movement on the right that has any significant traction whatsoever.” Rinaldi was also reportedly present in the offices for conservative consulting firm White Horse Strategies, owned by Defend Texas Liberty leader Jonathan Stickland, at the same time as Fuentes last October. He has claimed he was not part of Fuentes’ meeting there, and was unaware of Fuentes’ presence.

If the Texas GOP chair can’t see any “traction” of anti-semitism from the right, I wonder what he can see. From the “very fine people” who chanted “Jews shall not replace us” in Charlottesville to the mounting number of attacks on synagogues and individual Jews, most Americans of good will can see quite a lot of “traction.”

Texas’ current government is dominated by MAGA Republicans determined to keep power by limiting the right of Democratic -leaning constituencies to vote. Scholars at the Brennan Center have described the background of that organization’s current challenge to a measure passed by the Republican-dominated legislature. They allege that Texas has enacted

onerous new rules for voting by mail and curbs voter outreach activities. It also hinders voting assistance for people with language barriers or disabilities and restricts election officials’ and judges’ ability to protect voters from harassment by poll watchers. Like the dozens of restrictive state voting laws that have been enacted nationwide in the last three years, S.B. 1’s proponents claim that it is intended to fight voter fraud. Indeed, its myriad provisions appear to respond directly to baseless claims peddled by Donald Trump and his fellow election deniers about the security of mail-in voting and election administration.

Yet Texas has never found evidence of widespread fraud — and not for lack of trying. Without the pretext of making elections more secure, S.B. 1 is simply an unconstitutional effort to suppress eligible voters in marginalized communities. It seems no coincidence that after people of color surged in turnout in Texas’s 2018 and 2020 elections, the legislature passed a law that restricts methods of voting favored by Black and Latino voters and impairs voter assistance to those with limited English proficiency or limited literacy.

it isn’t only their appalling public behavior. Texas Republicans like Paxton are demonstrably personally corrupt, and that corruption was given a pass by the state’s GOP-dominated legislature. Paxton was acquitted on 16 articles of impeachment, a proceeding triggered by accusations from lawyers on his own staff and buttressed by significant evidence that he had abused the powers of his office to help an Austin real estate investor who was under federal investigation.

The Texas GOP is a cesspool–even more venal and vile than the GOP of DeSantis’ Florida.

I guess everything is bigger in Texas.

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Not Pretending Anymore #2

These days, I’m sorry to say, very little surprises me–and I’m especially unsurprised by the increasingly insane and inhumane positions being taken by Republican officeholders. (I live, after all, in a state that has elected culture warrior zealots like Banks and Braun…) But I will admit that Ken Paxton, the slimy AG of Texas, has managed to both shock and appall me.

With, I might add, the assistance of the Texas Supreme Court.

I’ll let Jennifer Rubin explain:

As the Texas Tribune aptly put it, “For the first time in at least 50 years, a judge has intervened to allow an adult woman to terminate her pregnancy.” The woman, Kate Cox, was forced to seek relief because Texas’s six-week ban makes an exception only to save the life of the mother. “At 20 weeks pregnant, Cox learned her fetus had full trisomy 18, a chromosomal abnormality that is almost always fatal before birth or soon after,” the Tribune reported. “Cox and her husband desperately wanted to have this baby, but her doctors said continuing the nonviable pregnancy posed a risk to her health and future fertility, according to a historic lawsuit filed Tuesday.”

The judge, confronted with a real person and a specific medical trauma that defied the ideological straitjacket right-wing lawmakers constructed, sided with Cox on Thursday. “The idea that Ms. Cox wants desperately to be a parent, and this law might actually cause her to lose that ability is shocking and would be a genuine miscarriage of justice,” Travis County District Judge Maya Guerra Gamble held. On Friday night, however, the Texas Supreme Court stepped in to order a stay of Gamble’s ruling, throwing Cox into limbo again.

Yesterday, that Court ruled for Paxton and overruled the lower court. Cox is leaving Texas in order to have the procedure she needs.

Calling Paxton’s position–and the Court’s agreement with it– “pro life” is ridiculous. The fetus has been diagnosed with a condition that is terminal, probably while it is still in the womb and certainly shortly after birth. Preventing this abortion will not “save” an “unborn child.” And Paxton (and the Court) clearly care nothing for the life or health or future fertility of the mother, all of which this pregnancy is threatening.

As Rubin accurately points out, this is what happens when lawmakers presume to overrule medical providers. As she says, there are multiple situations involving “fact-specific medical complications for a pregnant woman” that don’t fall neatly into the either-or construct of these laws.

These cannot, without violating our fundamental sense of justice and decency, be predetermined by a bunch of politicians (mostly White, mostly male and many medically illiterate) without regard to the wishes of the woman involved.

This deeply offensive effort to prevent an abortion that the judge of the lower court found to be required by the interests of “justice and simple humanity” should dispel any confusion about the motives of these so-called “pro life” Republicans. They care not one whit about the lives of women or “unborn babies.” They are interested only in protecting legal and cultural paternalism. They are telling all the women in Texas– and if the GOP regains Congress and/or the White House, all women in the United States–that those White, male, medically illiterate men will continue to control women’s bodies.

Rubin notes that Republicans are still in denial about the overwhelming unpopularity of their position, and the likelihood that it will burden their candidates in 2024 “in virtually every race up and down the ballot.”

Yesterday, I argued that the upcoming elections–unlike most past contests–will not be issue or candidate driven; instead, it will present voters with a choice between fundamentally incompatible world-views. Texas Republicans’ inexplicably cruel–and politically clueless–effort to prevent a medically-necessary abortion is a vivid example.

As Rubin writes:

As abortion rights activists predicted, Republicans remained trapped in a dilemma of their own making. Having catered to extreme antiabortion forces and backed extreme and unworkable abortion bans in a slew of states and nationally, they cannot retreat from their stance without infuriating their base. Seeing the political wreckage in the wake of Dobbs, they are unable to step away from a policy that is wildly out of step with a large majority of Americans. They should prepare to reap the political whirlwind in 2024.

The 2024 elections will be decided by the millions of women and men who oppose not just this cruel effort to control women but the rest of a Christian Nationalist agenda fervently supported by these latter-day, profoundly un-American Puritans. Republicans will be defeated–assuming those men and women turn out to vote. 

On that assumption rests nothing less than a continuation of the American experiment…

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State-Level Autocracy

If you resist believing that today’s GOP is intent upon replacing democracy with autocracy– controlled, of course, by the GOP–you need only look at what they are doing in the states. 

One person, one vote? How old-fashioned!

Efforts to negate the popular vote have moved way beyond gerrymandering. In Wisconsin, Republicans are exploring ways to undo the election of a state Supreme Court Justice who won by eleven points. Texas’ lunatic legislature has passed a different set of rules for cities populated by “those people,” who tend to vote Democrat. 

And then, of course, there’s Ron DeFascists’ Florida, where folks who voted for their local prosecutor can wake up to find that the governor has summarily dismissed their electoral choice. The Brennan Center (link unavailable) recently focused on his latest arbitrary and undemocratic dismissal of a popularly elected official.

In 2020, Monique Worrell was elected to serve as the prosecutor for the Orlando area. She’d campaigned on a reform platform that evidently was too “woke” for DeSantis, who proceeded to suspend her from office for “neglect of duty and incompetence.”  Worrell has filed suit in the Florida Supreme Court challenging her suspension.

Worrell’s lawsuit is one of a number of current state court cases that raise important constitutional questions about the scope of prosecutorial discretion — the power of prosecutors to decide when and how to charge crimes, seek bail or sentencing enhancements, or make other decisions about how they pursue cases. It’s an issue receiving scrutiny across the country, with laws recently enacted in Georgia and Texas authorizing prosecutors’ removal for certain uses of discretion.

The Florida Constitution authorizes the governor to suspend prosecutors like Worrell for specified reasons, including neglect of duty or incompetence. In her lawsuit, Worrell argues that DeSantis failed to allege any conduct meeting that constitutional standard.

Worrell’s office had no policy or practice of failing to enforce certain laws, and her charging decisions were well within the bounds of what most lawyers consider to be proper prosecutorial discretion. Policy differences between a local prosecutor and a governor are not legal grounds for suspension. 

This isn’t the first time DeSantis has targeted an elected local prosecutor. In 2022, he suspended Tampa-area prosecutor Andrew Warren, citing pledges he signed not to prosecute certain types of cases, including those related to abortion and gender-affirming health care.

A federal court ruled that Warren’s suspension violated both the Florida Constitution and the First Amendment, but the court held that it lacked the authority to reinstate him. The Florida Supreme Court — which would have the authority to overturn the governor’s suspension — then rejected a petition from Warren filed six months after his suspension after concluding he had waited too long to file. Worrell’s petition, filed less than a month after her suspension, will likely force the state high court to directly consider the relationship between the governor and local prosecutors in implementing criminal justice policy.

Similar issues are pending in other state supreme courts. In Pennsylvania, Philadelphia District Attorney Larry Krasner is challenging his 2022 impeachment by the state house of representatives, arguing that his exercise of discretion did not constitute “misbehavior in office.”  Georgia prosecutors are challenging a law imposing new limits on their discretion and creating new mechanisms to remove them from office. In Arizona, taking his cue from  Republicans, the state’s Democratic governor stripped local district attorneys of the power to prosecute cases under the state’s 15-week abortion ban, using an executive order to transfer that power to the state attorney general, who has vowed not to enforce it. 

These autocratic exercises significantly undercut democracy.

According to the New York Times, Ms. Worrell had been elected with 66% of the vote, and she released data showing that her prosecution rate was similar to that of two of her predecessors. Whether her performance was unsatisfactory was a question for the voters–not the Governor–to decide.

DeSantis justified her removal by citing several offenders who had committed crimes after serving their (presumably insufficient) sentences, or while out on bail; Ms. Worrell responded by pointing out that examples cited by the governor involved factors beyond a prosecutor’s control. Sentences and bonds are set by judges who are free to overrule prosecutors’ recommendations.

And she said that much of the information that was used to build a case against her came from local law enforcement officials who oppose her because she has prosecuted police officers, including one who shot an unarmed person.

“My message has been consistently, whether you’re a Democrat or Republican, whether you like me or you hate me: Democracy is under attack,” she said. “Duly elected officials should not be removed by elected officials who are not politically aligned with them.”

Autocrats-R-Us disagree. 

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Threats, Bribes And The GOP

The shocking acquittal of Ken Paxton in Texas despite  what the Washington Post accurately called “mountains of damning evidence” should have been predictable.

Why do I say that? Because we’ve had other signs of the thuggery that has become deliberate Republican strategy. A few weeks ago, Yoel Roth highlighted that strategy in an opinion piece for the New York Times. Roth was formerly the head of “trust and safety” at Twitter–and one of those who made the call to ban Trump from Twitter. He says that nothing prepared him for what followed.

Backed by fans on social media, Mr. Trump publicly attacked me. Two years later, following his acquisition of Twitter and after I resigned my role as the company’s head of trust and safety, Elon Musk added fuel to the fire. I’ve lived with armed guards outside my home and have had to upend my family, go into hiding for months and repeatedly move.

This isn’t a story I relish revisiting. But I’ve learned that what happened to me wasn’t an accident. It wasn’t just personal vindictiveness or “cancel culture.” It was a strategy — one that affects not just targeted individuals like me, but all of us, as it is rapidly changing what we see online.

Roth’s essay detailed a campaign of online harassment that lasted months. Twitter users demanded that he be fired, jailed or killed. And it had the desired effect on those who were watching.

Private individuals — from academic researchers to employees of tech companies — are increasingly the targets of lawsuits, congressional hearings and vicious online attacks. These efforts, staged largely by the right, are having their desired effect: Universities are cutting back on efforts to quantify abusive and misleading information spreading online. Social media companies are shying away from making the kind of difficult decisions my team did when we intervened against Mr. Trump’s lies about the 2020 election. Platforms had finally begun taking these risks seriously only after the 2016 election. Now, faced with the prospect of disproportionate attacks on their employees, companies seem increasingly reluctant to make controversial decisions, letting misinformation and abuse fester in order to avoid provoking public retaliation.

In Texas, those of us following the Paxton impeachment can be forgiven for expecting a conviction–after all, the charges were brought by the Republican-dominated House, the witnesses were all Republican whistleblowers who had worked for Paxton, and the evidence of his corruption was overwhelming.

There are media reports that Republican Senators received very explicit threats of violence if they voted to convict. But according to the Washington Post, those threats were also accompanied by the other part of what we now understand to be standard GOP strategy: bribery.

That the fix was in for the attorney general in the Senate probably should have been apparent back in July. That’s when a campaign finance report revealed that a pro-Paxton political action committee, known as the Defend Texas Liberty PAC, had donated $1 million and made an additional $2 million loan to Lt. Gov. Dan Patrick, who would preside over the impeachment trial.

Yes, you read that right: The person acting as judge took $3 million from the defendant’s deep-pocketed allies. Was it any wonder that only two Republicans in the Senate, where the lieutenant governor serves as president of the chamber, voted to convict?

According to the Texas Monthly, the big money folks who funded the bribe are the same evangelical Texas billionaires who are funding the state’s voucher campaign. Make of that what you will….

The Post article traced the devolution of Texas politics from the relatively genteel, often bipartisan Republicans of the Bush era into the hard-right fanaticism that gave Lone Star voters Ted Cruz and the assortment of corrupt culture warriors who currently run the state.

And now–in the only good news to emerge from this fiasco–the Texas GOP is preparing to eat its own.

Paxton’s far-right forces are now promising all-out warfare on the Republican House members — starting with Speaker Dade Phelan — who tried to remove the attorney general from office. And with Paxton supporter Donald Trump likely to be at the top of the ticket next year, you’d have to give them excellent odds of prevailing.

The rot extends far beyond Texas. So here we are, a good facsimile of a banana republic.

MAGA Republicans are a distinct minority of Americans and they know it–so they are willing to ignore more and more “rules of the game” in order to stay in power.  If vote suppression, dark money and “flooding the zone” prove inadequate to the task, then they’ll move to threats of violence accompanied by outright bribery.

I won’t be surprised if the Texas Speaker wakes up one morning with a horse’s head in his bed…..

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