Let's talk about this North Dakota attempt to legislate around Section 230 and create a civil right of action for users censored by social media sites. CC @mmasnick


First of all, who gets to decide whether content fits into these highlighted categories? Do they actually think that the government will get to decide what counts as "otherwise objectionable"?

Also, what's "excessively violent"? "Violent" has a potential objective meaning, but
And, again, not one that the government gets to make for private citizens, under the First Amendment
In other words, this law would create liability only if social media sites banned users for content THE SITE ITSELF was fine with


More from Akiva Cohen
EVERYTHING you could possibly get wrong in a complaint, they managed

Start with the plaintiffs. The ONLY claims in the lawsuit are that the Constitution gives state legislatures the right to set the manner of elections, which they have allegedly (we'll get to this insanity) failed to do.
There's oodles of caselaw saying "since that's a right of the state legislature, only state legislatures, as a body, can bring such a claim"
Are the plaintiffs state legislatures?
https://t.co/KJGEvm8Owp

OK, what about the Defendants? They've sued Defendants from, IIRC, five states (GA, PA, WI, MI, AZ) based on claims that the State Legislatures there didn't pass election rules that the plaintiffs insist the Constitution requires (I promise, we'll get there).
Hi, #Squidigation fans. New developments in the Michigan tentacle. Driving little man to school this morning, but we can talk about it when I get back https://t.co/m6GxK7g5T1
— Akiva Cohen (@AkivaMCohen) December 7, 2020
First: 11th Amendment Immunity. Basically, states (and their officials) have sovereign immunity; you can't sue them in Federal Court except to the extent that they agree to be sued there. Quick thumbnail of the doctrine here

There are only 3 exceptions to this: 1) Congress says "you can sue your state for this"; 2) the state agrees to be sued; 3) Younger, a case that said "you can sue your state if you are just seeking an order saying 'stop violating my rights'"
In other words, if the state passes a law that says "no talking politics in public" you can sue for an order saying "that's unconstitutional and can't be enforced" but not for damages from having your 1A rights violated in the past
I'm sure you can see where this is going: Exceptions 1 and 2 don't apply; Congress didn't say "no sovereign immunity" when it passed 42 USC 1983 (the civil rights statute the plaintiffs sued under) and Michigan hasn't waived it. That leave Younger as the only remaining option
Here's the meat of their intro: Amazon isn't being fair to us. They're holding us to a higher standard than Twitter - they say we allow violent content, but look what Twitter does!

There are a few problems with this approach. First, there's a factual problem: Twitter and Parler take very different approaches to moderation. Hell, *that's Parler's entire pitch.* So "we're the same as Twitter, why are you treating us different" isn't going to fly
ALSO, the hashtag was mostly people saying "these folks are calling to hang Mike
Five minutes of scrolling a search for #hangmikepence, a gallery: pic.twitter.com/40hsyJNK50
— Jawafawa (@jawafawa) January 11, 2021
And ALSO also, did anyone notice any prominent right wingers complaining about losing tens of thousands of followers yesterday? You know why they did? Because Twitter has been active in deleting accounts that violate its TOS
Folks, this is the single dumbest election lawsuit of the entire cycle, and I've read kraken filings front to back. https://t.co/PLHTf7HhbM
— Akiva Cohen (@AkivaMCohen) December 22, 2020
Here's the decision. Some highlights follow
Pretty sure I said this, using slightly different words!

Hey, @questauthority, it sounds like Judge Boasberg was about as pleased about the long "none of this matters but we want to say it anyway" section as we expected him to be

You CANNOT run into court claiming there's an emergency and you need an expedited schedule so you can be heard before 1/6 and then just not bother serving anyone for 12 days

More from Government
CJI: our intention is to see if we can bring about an amicable resolution to the problem. That is why we asked you why don't you put the #FarmBills on hold. You want time for negotiation. If there is some sense of responsibility showing that you will not implement the laws
— Bar & Bench (@barandbench) January 11, 2021
So a committee of 'wise men/women' selected by the SC will stand in judgement over the law passed by
CJI: .....then we can form a committee with ICAR members to look into this. Till then you can continue to put the law on hold. Why will you insist on continuing the law anyhow
— Bar & Bench (@barandbench) January 11, 2021
Here is the thing - a law can be stayed based on usual methods, it can be held unconstitutional based on violation of the Constitution. There is no shortcut to this based on the say so of even a large number of people, merely because they are loud.
AG Venugopal: none of the petitions point to any provision of three farm acts stating that it is unconstitutional
— Bar & Bench (@barandbench) January 11, 2021
CJI: we are not declaring it unconstitutional
AG: laws cannot be stayed. This is drastic
Tomorrow can all the income tax payers also gather up at whichever maidan and ask for repealing the income tax law? It hurts us and we can protest quite loudly.
How can a law be stayed or over-turned based on the nuisance value of the protestors? It is anarchy to allow that.