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

Forget, for a moment, that this law, if it passed would immediately be deemed void as preempted by Section 230 (Federal law is supreme over state law where they conflict, and this would create an express conflict). This bill is a really good example of why this stuff is hard
Here's the key provision of the bill. The various highlighting on these versions shows areas we'll touch on
First of all, let's look at the last of those images. There's no question that this would target conduct immune under federal law - and, in fact, if 230 were repealed nobody could ever be liable under this law (since it only reaches immune conduct). So it's incredibly stupid.
But again, put that aside. Let's look at the substance.

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"?
Folks, there's a pretty obvious First Amendment problem with the government saying "we'll protect you from being sued if you ban content we want you to ban, but not different substantive content we like"
That's the definition of a law regulating speech that turns on the substance of the speech in question, so there can't be any government standard for defining "otherwise objectionable"

Also, what's "excessively violent"? "Violent" has a potential objective meaning, but
"excessively violent" is a pure value judgment.

And, again, not one that the government gets to make for private citizens, under the First Amendment
So if the government can't be the entity determining what content is "otherwise objectionable" or "excessively violent", how will this statute be interpreted in order to render it constitutional? (because statutes are always interpreted to be constitutional if at all possible)
It will be interpreted as meaning the social media sites targeted get to define what is "excessively violent" or "otherwise objectionable"

In other words, this law would create liability only if social media sites banned users for content THE SITE ITSELF was fine with
Since *by definition* sites only ban users for content the site finds objectionable, this ends up being an effectively null set. Under this law, social media sites could ban users for any reason they want to, just like under the current law. This does nothing
Separately, lets look at the cause of action it creates: Not just liability to the banned user, but liability to the world at large - anyone who wanted to hear from them.
To call this merely immensely stupid would be an insult to the immensely stupid. It's an unfathomably bad idea. If Twitter banned me, all 19K of my followers would have the ability to separately sue Twitter for damages for being deprived of my pearls of wisdom and gif game?
https://t.co/TiMVXafJqs
And how, exactly, would one go about calculating these supposed damages? How much do each of you pay for my tweets? Oh, right - nothing. So your damages from not having access to them, in a monetary sense, is best summed up by Mr. Wonka
(Note, if any of you are interested in paying me to tweet, let me know; there are charities I'll point you towards)
How about the speaker? I suppose they could find some way to value their lost following. But how do you apply that to a suspension, or a throttle? Good luck.
And by the way, this 1,000,000 user thing is wonderful. Apparently, up to 999,999 users, I can ban as many Nazis as I want to. But the second that millionth user signs up, my social media platform has to allow Heiling all over the place. This is definitely well thought out
That's one paragraph of a badly thought out bill that, by definition, can have no legal impact anywhere, ever (because of that pesky supremacy clause and first amendment). Legislating around 230 at the state level is doomed

More from Akiva Cohen

OK, #Squidigation fans, I think we need to talk about the new Wisconsin suit Donald Trump filed - personally - in Federal Court last night. The suit is (as usual) meritless. But it's meritless in new and disturbing ways. This thread will be


Not, I hope, Seth Abramson long. But will see.

I apologize in advance to my wife, who would very much prefer I be billing time (today's a light day, though) and to my assistant, to whom I owe some administrative stuff this will likely keep me from 😃

First, some background. Trump's suit essentially tries to Federalize the Wisconsin Supreme Court complaint his campaign filed, which we discussed here.


If you haven't already, go read that thread. I'm not going to be re-doing the same analysis, and I'm not going to be cross-linking to that discussion as we go. (Sorry, I like you guys, and I see this as public service, but there are limits)

Also, @5DollarFeminist has a good stand-alone thread analyzing the new Federal complaint - it's worth reading as well, though some of the analysis will overlap.
So, quick rundown of the latest #Squidigation decision: It's very thorough; 36 pages of Judge Parker explaining that Powell and her merry band of fuckups lose for every conceivable reason


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

More from Government

How does a government put a legislation on 'hold'? Is there any constitutional mechanism for the executive to 'pause' a validly passed legislation? Genuine Koshan.


So a committee of 'wise men/women' selected by the SC will stand in judgement over the law passed by


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.


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.

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The chorus of this song uses the shlokas taken from Sundarkand of Ramayana.

It is a series of Sanskrit shlokas recited by Jambavant to Hanuman to remind Him of his true potential.

1. धीवर प्रसार शौर्य भरा: The brave persevering one, your bravery is taking you forward.


2. उतसारा स्थिरा घम्भीरा: The one who is leaping higher and higher, who is firm and stable and seriously determined.

3. ुग्रामा असामा शौर्या भावा: He is strong, and without an equal in the ability/mentality to fight

4. रौद्रमा नवा भीतिर्मा: His anger will cause new fears in his foes.

5.विजिटरीपुरु धीरधारा, कलोथरा शिखरा कठोरा: This is a complex expression seen only in Indic language poetry. The poet is stating that Shivudu is experiencing the intensity of climbing a tough peak, and likening

it to the feeling in a hard battle, when you see your enemy defeated, and blood flowing like a rivulet. This is classical Veera rasa.

6.कुलकु थारथिलीथा गम्भीरा, जाया विराट वीरा: His rough body itself is like a sharp weapon (because he is determined to win). Hail this complete

hero of the world.

7.विलयगागनथाला भिकारा, गरज्जद्धरा गारा: The hero is destructive in the air/sky as well (because he can leap at an enemy from a great height). He can defeat the enemy (simply) with his fearsome roar of war.