The author, Mike Masnick, is a tech blogger — not an attorney, as far as I've been able to determine.
Even Eugene Volokh — who is both an actual attorney and uniquely qualified to weigh in here — didn't attempt to digest the 113 pages of the opinion, much less immediately produce a reasoned analysis. I'm sure one will be forthcoming.
The quote you cited from Masnick certainly isn't legal analysis. It's empty invective, as are statements like "This "judge" is an unqualified political hack".
A few other sources:
- Lawrence Tribe, a very senior center-left constitutional lawyer and Harvard prof: https://twitter.com/tribelaw/status/1562951505451266050
"A disgraceful Fifth Circuit decision"
- Reporters' Committee on Freedom of the Press (a deeply centrist/neutral organization) https://twitter.com/katie_rcfp/status/1570897188359909377
"Just finished reading the 5th Circuit’s decision in the NetChoice v. Paxton case and it’s . . . not good. To say the First Amendment analysis is deeply flawed would be an understatement."
- Orin Kerr, a conservative attorney who's also been a Federalist Society backer: https://twitter.com/OrinKerr/status/1570900354061180929
"I am old-fashioned, but I would think that inferior courts start with what the Supreme Court has said the text means."
(I did a quick search and found three sources that span the ideological spectrum, which show how widespread the negativity about this decision has been.)
This is a terribly-reasoned decision that doesn't make much legal sense. It's an ideological decision, motivated by the feeling that rightwing voices, which are actually boosted by the rich people that own social media, are instead, against all sense, suppressed.
That tweet isn't even about this case, it's about voting rights for felons.
Volokh is the Gary T. Schwartz Distinguished Professor of Law at UCLA, uniquely qualified to weigh in on first amendment law, wrote a column on first amendment and speech issues for the Washington Post for years, and frankly, I imagine would be pretty disappointed (but not surprised, in these illiberal times), to be written off as a “conservative attorney” when he’s consistently espoused libertarian views over the decades.
On top of which, he hasn’t actually weighed in on this ruling yet, and may very well take umbrage with the decision!
His blog at reason did, in fact, post a guest article arguing that the ruling falls afoul of the takings clause.
> Orin Kerr, a conservative attorney and notable Federalist Society backer
You just disqualified Volokh for being a “conservative attorney”.
Now you’re citing a conservative attorney whose opinion suits your argument?
That’s not arguing logically or in good faith, even putting aside the fact that your claims regarding Volokh are a fabrication.
They mentioned they cited sources across the ideological spectrum. In theory, that's good.
It sounds like the primary issue here is mischaracterization of Volokh, but that doesn't necessarily change or invalidate the other sources mentioned.
Volokh is a highly-credentialed subject matter expert whose work has been cited by the Supreme Court, and who has been working in first amendment and related law for decades.
His first book, in 2001, was "The First Amendment: Problems, Cases and Policy Arguments. New York: Foundation Press."
He published a 100+ page, peer-reviewed article covering this subject area in 2021:
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3913792
> He seems no more qualified than the sources mhneu provided.
He's a great deal more qualified, but that's not the point. He hasn't weighed in on this decision at all yet, other than to note that it was released.
I swear, the amount of "motivated reading" by emotionally invested commenters has me seriously suspicious of anyone that holds a particularly strong legal position on this just-released decision. People do not appear to be thinking. At all.
> This decision has been soundly roasted across the spectrum.
It may very well be rebutted by Volokh, but if so, it won't be a "roasting", and his position will certainly be a great deal more erudite than "this judge is an idiot!"
I brought up Volokh in contrast with the random tech blogger's review of the decision that was cited by the (now great-great-great...-grant-parent post), because if a subject matter expert like Volokh has not yet had time to read and properly analyze the decision, there's simply no way "Mike Masnick" of "Techdirt" has.
To me the one interesting bit was this: “ The websites do engage in editorial control. The difference from newspapers is that it’s ex post control. If there are complaints, they will review the content afterwards to see if it matches with their editorial policies (i.e., terms of use).”
I mean, I disagree — terms of use of a tech platform are miles away from an actual editorial opinion, they are bloodless legal documents and virtually impossible to read for pleasure, unlike actual editorial - but at least this engages with the decision on the merits.
I’d encourage anyone to read the actual decision, it (and the dissent) are more interesting reading than this. (And unlike at TechDirt the citations don’t approvingly quote someone named “Wonton Killing Hat”). https://www.ca5.uscourts.gov/opinions/pub/21/21-51178-CV1.pd...
For example, just look at the section where the opinion argues that the platform is bringing up "hypotheticals" it talking about curbing pro-Nazi or terrorist posts. I kept re-reading the quoted opinion again and again thinking "Is this judge a complete idiot?" To be clear, I'm not basing this on the commentary from the article's author (though I agree with him). But trying to argue that pro-Nazi and terrorist speech on tech platforms are "hypotheticals" makes me wonder if this judge has ever seen the Internet.
But IANAL and had to read through it pretty fast.
The judge’s use of the term “hypothetical” was correct, and does not represent an assertion, one way or the other, about whether “pro-Nazi and terrorist speech” does or does not exist on these platforms.
https://www.techdirt.com/2022/09/16/5th-circuit-rewrites-a-c...
It goes into thorough analysis into why this is such a lazy, stupid decision. This is the quote I agree with:
> Frankly, Oldham’s arguments sound much more like the arguments made by ignorant trolls in our comments than anyone with any knowledge or experience with 1st Amendment law.
This "judge" is an unqualified political hack.