Republicans Defend Texas Social Media Law—and Compelled Speech

“A blatantly unconstitutional Texas social media law can start being enforced unless the Supreme Court steps in. The law was blocked by a U.S. district court last year after internet advocacy and trade groups challenged it. But a new order from the U.S. Court of Appeals for the 5th Circuit means Texas can begin enforcement of its social media law—and wreak havoc on the internet as we know it in the process.

NetChoice and the Computer and Communications Industry Association (CCIA)—the groups that filed the lawsuit against the Texas social media law—have now submitted an emergency petition to the Supreme Court asking it to intervene. Meanwhile, Texas and a slew of other states with Republican leaders are advocating for the law, which would treat large social media platforms like common carriers (such as railroads and telephone companies) that have a legal obligation to serve everyone.

How we got here: The Texas social media law (H.B. 20) bans large platforms from engaging in many forms of content moderation—including rejecting unwanted content outright, limiting its reach, or attaching disclaimers to it—based on the viewpoint said content conveys. It’s similar to legislation passed (and blocked, for now) in Florida.

Borrowing a page from George Orwell, supporters like Texas Gov. Greg Abbott say the law is designed to protect free speech. But in addition to protecting people and private entities from censorship, the First Amendment also protects against them being compelled by the government to speak or host certain messages—which is exactly what H.B. 20 does.

Accordingly, Judge Robert Pitman of the U.S. District Court for the Western District of Texas held last December that H.B. 20 violated the First Amendment and issued a preliminary injunction against enforcing it.

But Texas appealed, and last week the U.S. Court of Appeals for the 5th Circuit issued a stay on the lower court’s decision—meaning Texas can start immediately enforcing the social media law.

The 5th Circuit did not offer an opinion explaining its reasoning, so it’s hard to say what’s going on there. In any event, NetChoice and the CCIA are now asking the U.S. Supreme Court to step in.”

Conservatives Say They Care About the Constitution. Until They Talk About Criminal Justice.

“GOP senators who are attacking President Joe Biden’s Supreme Court pick seem weirdly unaware of how our justice system works. By focusing in part on Ketanji Brown Jackson’s former role as a criminal defense attorney, they act as if it’s wrong to provide a defense to people accused of a crime—and that if the government levels a charge, it must be right.

Hey, if you haven’t done anything wrong, you have nothing to fear—or something like that. “Like any attorney who has been in any kind of practice, they are going to have to answer for the clients they represented and the arguments they made,” Sen. Josh Hawley (R–Mo.) said in reference to Jackson and other Biden nominees. Apparently, defense attorneys should only defend choirboys.

Yet I guarantee if Hawley—known for his fist pump in support of Jan. 6 protestors at the U.S. Capitol—became the target of an overzealous prosecutor who accused him of inciting an insurrection, he’d be happy to have a competent defense attorney to advocate on his behalf. That attorney shouldn’t be forever stained for defending someone as loathsome as Hawley.”

“Jackson will be the nation’s first Supreme Court justice to have served as a public defender, with Thurgood Marshall being the last justice to have criminal defense experience.”

“A study last year by the libertarian Cato Institute found the Trump administration’s judicial appointments tilted in favor of prosecutors over those who represented individuals by a 10-to-one margin. Only 14 percent of the liberal Obama administration’s appointees defended individuals. Most judges strive to be fair, but their backgrounds color their worldview.”

Joe Biden’s Secret Constitutional Weapon

“Constitutional scholars generally agree that the Ninth Amendment originated in a dispute between the two rival political factions that dominated the early republic: the federalists and the anti-federalists. The anti-federalists, anxious to limit the power of the new federal government, demanded a list of explicitly enumerated rights that the government would be constitutionally obligated to respect, but some framers worried that such a list could be construed to mean that citizens surrendered the rights that were not enumerated. The amendment was engineered by James Madison, whom many consider the father of the Constitution, as a means of appeasing both factions.

Although legal scholars generally agree on the amendment’s origins, they agree much less on its meaning and legal function. What, for instance, are the “other rights” that the people supposedly retained? Are they the collective rights of the people, as recognized by the English common law tradition, or are they the inviolable natural rights to life, liberty and happiness laid out in the Declaration of Independence — or something else entirely?

For much of the country’s history, these questions remained unanswered — or, more accurately, they remained unasked. Before 1965, the Supreme Court discussed the Ninth Amendment in fewer than ten cases, during which time the amendment “hid like a neglected child among its more popular sibling amendments in the Bill of Rights,” as the legal scholar Chase J. Sanders has described it.

Then, in 1965, the Supreme Court cited it in the landmark case of Griswold v. Connecticut, in which the Court struck down a Connecticut law that banned the use of medical contraception. In the majority opinion, Associate Justice William O. Douglas cited the Ninth Amendment as one of the amendments that, together with the First, Fourth and Fifth Amendments, collectively implied a right to privacy that protected couples’ right to use contraception. The amendment received even more extensive treatment, though, in a concurring opinion authored by Associate Justice Arthur Goldberg and co-signed by Chief Justice Earl Warren and Associate Justice William J. Brennan. In the concurrence, Goldberg argued that the right to privacy was among the unenumerated rights referred to in the Ninth Amendment. “The fact that no particular provision of the Constitution explicitly forbids the State from disrupting the traditional relation of the family… surely does not show that the Government was meant to have the power to do so,” Goldberg wrote. “Rather, as the Ninth Amendment expressly recognizes, there are fundamental personal rights such as this one, which are protected from abridgment by the Government, though not specifically mentioned in the Constitution.””

Republicans Are Moving Rapidly to Cement Minority Rule. Blame the Constitution.

“Equal representation of the citizenry hasn’t become the enemy of the contemporary Republican Party. It has been the enemy for more than a half-century. Ronald Reagan opposed the 1965 Voting Rights Act from the beginning, explaining later that he believed it was “humiliating to the South.” When the act came up for its third renewal in 1982, Reagan’s lawyers in the Justice Department, led by a twenty-something John Roberts, mightily resisted it and much needed amendments to it. When it came up for renewal again, in 2006, the act nearly broke the House Republican caucus in two.

At the center of Republican opposition to the Voting Rights Act is Section 5, described by the historian J. Morgan Kousser as “one of the most innovative governmental mechanisms since the New Deal.” Section 5 stipulates that states, counties and localities with a history of discriminatory voting rules and practices must get permission or “pre-clearance” from the federal government to make any changes to an electoral “standard, practice, or procedure.” With the burden of proof falling on these jurisdictions, it is up to them to demonstrate that the intent or effect of their change is not racial discrimination.

Well-versed in the ingenuity and initiative of white supremacy, the authors of Section 5 understood that equal representation for all citizens required the nationalization of voting standards and preemptive action by the federal government to protect those standards. If local white officials were not stopped, in advance, from “stacking” or “cracking” the Black vote — concentrating Black voters in one district and reducing their power elsewhere or diluting their power by spreading their votes across districts — African Americans would not be guaranteed equal representation in the polity.”

“In 2013, with Roberts now at the helm of the Supreme Court, the Republicans finally achieved their goal, effectively killing Section 5 in Shelby County v. Holder. Though the Cornell political scientist Suzanne Metler tells Edsall that the GOP is “a longstanding party that helped to protect democracy until recently,” the wave of Republican racial gerrymanders and voting rights restrictions that we are seeing today was set in motion by leading members of the party more than fifty years ago.”

“Americans associate the Constitution with popular liberties such as due process and freedom of speech. They overlook its architecture of state power, which erects formidable barriers to equal representation and majority rule in all three branches of government. The Republicans are not struggling to overturn a long and storied history of democratic rules and norms. They’re walking through an open door.

The 20th century lulled many Americans into thinking that the Electoral College was a vestigial organ like the appendix. Citizens of the 21st century know better. Having witnessed two presidential elections in which the candidate with the most votes lost, they know that rule by the majority or plurality is not a necessary feature of the presidency. Nor is equal representation: In the Electoral College, the vote of a citizen in Wyoming is worth three to four times as much as that of a citizen in California.”

“Though the Framers rejected the idea of a hereditary body like the House of Lords, they did accept a compromise in which the Senate would represent states rather than individuals. Contrary to popular lore, Madison thought the central concern of those states had less to do with the size of their populations than with the source of their labor, whether it was enslaved or free.”

“While some longstanding, wealthy democracies do have upper chambers, the United States is one of the very few to grant its upper chamber equal power to its lower chamber. The extreme inequality of representation in the Senate, in which the vote of one citizen in Wyoming is equal to that of 67 citizens in California, is even more unique. The combined effect of these twin features of Congress, wrote the distinguished Yale political scientist Robert Dahl, is “to preserve and protect unequal representation” and “to construct a barrier to majority rule.””

“American racial politics, past and present, demonstrates the power of this observation. Between 1800 and 1860, the will of the voting majority was repeatedly expressed in the House, which passed eight anti-slavery bills. The will of the slaveholding minority was repeatedly enacted in the Senate, which stopped those measures. In the first half of the 20th century, the majoritarian House passed multiple civil rights measures — from anti-lynching bills to abolition of the poll tax. Each time, those bills were killed in the Senate.”

A Good Day for the Fourth Amendment

“In 2019, a California appeals court said a police officer may always enter a suspect’s home without a warrant if the officer is in “hot pursuit” and has probable cause to believe the suspect has committed a misdemeanor.

In June, the U.S. Supreme Court gave that decision the benchslap it deserved. “We are not eager—more the reverse—to print a new permission slip for entering the home without a warrant,” declared Justice Elena Kagan in Lange v. California.

The case originated when a California Highway Patrol officer observed Arthur Gregory Lange repeatedly honking his horn and playing his car stereo at a loud volume, both of which are traffic infractions at worst. The officer followed Lange’s car and switched on his overhead lights just a few seconds before Lange pulled into his own driveway. Lange, who said he never saw the officer’s lights in his rearview mirror, entered his driveway and pulled into his garage. The officer parked, exited his vehicle, stuck his foot under the garage door to prevent it from closing, followed Lange in, and had him perform field sobriety tests, which ultimately led to a DUI charge.

The state has “argued that the pursuit of a suspected misdemeanant always qualifies as an exigent circumstance authorizing a warrantless home entry,” Kagan observed in her majority opinion, which was joined in full by Justices Stephen Breyer, Sonia Sotomayor, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. But that position ran afoul of both SCOTUS precedent and the Fourth Amendment’s common law roots.

“On many occasions, the officer will have good reason to enter—to prevent imminent harms of violence, destruction of evidence, or escape from the home,” Kagan wrote. “But when the officer has time to get a warrant, he must do so—even though the misdemeanant fled.”

The common law origins of the Fourth Amendment commanded the same result. “‘To enter a man’s house’ without a proper warrant, Lord Chief Justice Pratt proclaimed in 1763, is to attack ‘the liberty of the subject’ and ‘destroy the liberty of the kingdom,'” Kagan wrote, quoting from a venerable British common law judgment. “That was the idea behind the Fourth Amendment.”

Writing in a concurrence that reads more like a dissent, Chief Justice John Roberts, joined by Justice Samuel Alito, denounced the majority’s reasoning as “absurd and dangerous,” “hopelessly indeterminate,” and likely to impede necessary police work.

Fortunately, Roberts managed to attract just one other vote. The Fourth Amendment had a good day in court.”

Democrats have a high-risk, high-reward plan to save Roe v. Wade

“Under the modern understanding of the Constitution, a federal law regulating abortion — like other federal regulation of health providers — is unambiguously constitutional.

Congress’s power to regulate is broad but not unlimited. The Constitution lays out a list of powers that Congress is allowed to exercise, such as the power to raise armies or the power to establish post offices.

One of these powers is the ability to enact legislation enforcing rights protected by the 14th Amendment. Both Roe and Casey rooted the right to an abortion in this amendment’s guarantee that no one may be denied “liberty” without due process of law. So, as long as Roe and Casey remain good law, Congress may enact laws protecting abortion rights.

But, of course, the whole reason Democrats want to pass the WHPA is because Roe and Casey are under threat. So Congress cannot realistically rely on its power to enforce the 14th Amendment if it wants to sustain legislation protecting abortion. The Supreme Court is likely to change its understanding of which rights are protected by the 14th Amendment very soon.

Alternatively, the WHPA could also be sustained under Congress’s broad power to regulate the national economy. This power derives from two provisions of the Constitution, which permit Congress to “regulate commerce … among the several states,” and to “make all laws which shall be necessary and proper for carrying into execution” this power to regulate commerce.

As the Supreme Court explained in Gonzales v. Raich (2005), Congress may use its power over national commerce to regulate any “economic ‘class of activities’ that have a substantial effect on interstate commerce.” The Court’s decisions permit federal laws regulating landlords, family farmers, and other businesses and professionals that primarily serve local consumers. They permit federal regulation of abortion.

Abortion is a medical procedure that is provided by professionals, who typically charge a fee. Some of these doctors travel across state lines to provide this service. They are trained at medical schools all over the country, perform their services in clinics funded by donors from other states, use medical equipment manufactured in other states — you get the idea.

Abortion, in other words, is an economic activity that has a substantial effect on interstate commerce. So, under Raich, Congress could pass a law protecting abortion rights.

But this modern understanding of the Constitution isn’t exactly beloved by conservatives. And if Democrats pass a law like the WHPA, a Supreme Court dominated by Republican appointees might overrule Raich — or, at least, limit it, potentially doing considerable violence to Congress’s ability to provide other legal protections in the process.”

Can Peru’s Constitution Survive a Marxist Onslaught?

“The battle in Peru is no longer about who won the election; it’s about preserving the country’s constitution. Drafted in 1993, the current constitution underpins the free market policies that helped the country reduce its poverty rate by roughly one-half, nearly triple its per capita income, and even slash inequality (as measured by a 12-percentage-point reduction in the Gini coefficient between 1998 and 2019). As Ian Vásquez and Ivan Alonso write for the Cato Institute, during the last decades, “Peruvians have experienced dramatic and widely shared improvements in well-being.”

Peru’s economic success is a rather new development. As recently as August 1990, the country experienced a 397 percent monthly inflation rate. Previously, dictator Juan Velasco Alvarado, a military officer who led a coup d’état in 1968, had nationalized key industries, creating state monopolies in oil and mining, fisheries, and food production, among other key sectors. He also expropriated large tracts of land and severely restricted imports, all according to a five-year plan of national production. Economists César Martinelli and Marco Vega argue that Velasco Alvarado’s statist program cost Peru “sizable losses” in economic growth during two decades, leading to the hyperstagflation of the late 1980s.

Once in power, Alberto Fujimori, who won the presidential election in 1990, took drastic measures to stabilize prices, mainly by restricting the money supply and government deficits. Meanwhile, he deregulated markets and shrank the state’s size by privatizing state-owned companies.”

“Today, the constitution is the only obstacle in the way of President-elect Castillo’s party platform, which praises Vladimir Lenin and Fidel Castro while promising a back-to-the-past agenda of nationalizing the mining sector and other major industries, expropriating land, and getting rid of Peru’s successful private pension system, which administers approximately USD $40.7 billion in citizens’ savings. Much like Velasco Alvarado, who nationalized news media companies, Castillo’s “Free Peru” party plans to “regulate” the press, claiming that a “muckraking” media is “fatal” to democracy.”

“Castillo’s “Free Peru” party calls for a new constitution to replace the one in place, which it rejects as “individualist, mercantilist, privatizing, and defeatist” in the face of foreign interests.”

“According to a recent poll, 77 percent of Peruvians are against doing away with the current constitution. As YouTuber Mirko Vidal remarks, this suggests that a good portion of Castillo’s vote wasn’t pro-Marxist as much as anti-Fujimori.

It remains to be seen whether Peru’s institutions can withstand Castillo’s certain onslaught once he is in power. It would be no surprise if he tried to get rid of term limits, a classic recipe of 21st century socialists such as Venezuela’s Hugo Chávez and Bolivia’s Evo Morales, caudillos who, like Alberto Fujimori, won an election and changed the rules of the game so as to hold on to power. Another similarity with Chávez and Morales is Castillo’s blend of anti-capitalist dogma with a strong sense of social conservatism; he opposes same-sex marriage, a “gender-focus” in education, and large-scale immigration. Repeatedly, he has promised to expel all illegal immigrants—meaning many of the 1 million Venezuelans who arrived in the country as they fled from Chavista socialism—just 72 hours after taking office. While these stances are electorally savvy, they make Castillo an odd bedfellow of the foreign progressives who praise him with titles such as son of the soil.”