Pluralistic: 27 Sep 2022 Federalist Society v Corporate Personhood

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An old Punch engraving caricaturing a seated judge at his bench, bearing a loopy, supercilious expression. The judge is operating two sock-puppets, one bearing the Facebook logo, the other bearing the Twitter logo. Behind the judge on the wall is the logo for the Federalist Society.

Federalist Society v Corporate Personhood (permalink)

There are lots of cleavage lines between "left" and "right" ("Conservatism consists of exactly one proposition: There must be in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect" -F. Wilhoit), and here's a crucial one: the left knows its ideology arises from material reality, while the right claims otherwise.

The right likes to claim to be "rationalist," grounded in the realm of ideas, not the material world. For example, the right says affirmative action is unfair, because policies should be "race-blind" and thus neutral. The left, meanwhile, says that offering the same chances to people regardless of whether they have the same material means to seize those chances is unfair, because it simply cements the dominance of the people who are already on top.

But all ideology is grounded in material reality. The things you think – and believe – arise out of the material world you encounter. How could it be otherwise? Remember when David Cameron, as PM of UK, said that there was no room for social explanations for the London uprisings, insisting that it was down to "criminality, pure and simple"?

"Criminality, pure and simple" has no explanatory power. Where was the "criminality" the day before the uprising? Where did it go to, the day after? Is it a strange tide, driven by mysterious ideological currents in the aether? Is it a pollen that alights on poor people and sends them into the streets before it dissipates and lets them trickle back home?

It's not just your beliefs that rise and fall based on your material circumstances – it's also the salience of those beliefs. Racism is a complicated ideology, but at its core, there is something like the toddler's revulsion of having their peas and carrots touch on the same plate: these things do not belong together.

This carrots-and-peas theory of racism came into focus for me reading NK Jemisin's brilliant (anti)Lovecraftian novel The City We Became. Jemisin's foils make it very clear that Lovecraft's lurking eldritch terrors all boil down to a kind of "ewww, you got your peanut butter in my chocolate" tantrum:

(There's a sequel to City coming out in a few weeks: The World We Make, and it's getting terrific reviews!)

Lots of people have some racist views, and they held these views before and after the 2016 election. Some people think the reason that we saw more racism in public during and after the Trump campaign is that Trump is a sorcerer that brainwashed your Facebook uncle, maybe with the help of Mark Zuckerberg's mind-control ray.

But there's a materialist explanation for what happened to your uncle and all those other avowed racists who flooded the public discourse after 2016: what changed wasn't their racism, but the salience of their racism. Pre-2016, these people had lots of things on their mind: golf, Better Call Saul, elevated ice-cream sandwiches, their kid's AP history problems, crossfit…and racism.

2016 (and beyond) is best understood as a re-ordering of these lists. The attention and focus that they once gave to crossfit shifted to racism, because Donald Trump told them that racism was the answer to their material complaints, while Hillary Clinton told them they had no material complaints ("America never stopped being great" is the stupidest political slogan, ever).

Racism is an ideology – a terrible one – but increases and decreases in racism track to material anxieties, not better argument. Trump didn't make your uncle into an obsessive racism hobbyist with brilliant logic. He did it by linking your uncle's material anxieties to racist explanations.

Leftists have an ideology – Steven Brust says, "if you think human rights are more important than property rights, you're on the left; if you think property right are human rights, you're on the right – but the left understands this ideology as connected to, arising from, and mobilized by the material conditions of its adherents.

The right, meanwhile, maintains the pretense that it is motivated by reason and principle, unwavering moral pole-stars that can trace a lineage from Roman times, or the Ten Commandments, or the US Constitution, unwavering and untouched by the material realm.

But the right is motivated by material conditions, too. As Corey Robin writes in The Reactionary Mind, the goal of the right is to create hierarchies in which the "best people" get to boss everyone else around. Christian Dominionists want to put men in charge of women and children; libertarians want to put bosses in charge of workers, imperialists want to put America in charge of other countries, racists want to put white people in charge of racialized people.

The ideology of the right drifts hither and yon based on the likelihood that a given principle will put "the best people" in charge of the rest of us. For 40 years, the American right insisted that monopolies were amazing, efficient organizations that should be encouraged as engines of progress and prosperity.

When tech monopolies used their market power to sew up all the public forums for discourse and then kicked off Donald Trump, Milo Yiannopoulos and Alex Jones, key figures on the right became highly selective trustbusters, dedicated to curbing the power of tech monopolies.

The ideological cover for this is thin to nonexistent: diehard Federalist Society types like Ted Cruz don't even bother to try articulating a theory of "good" monopolies and "bad" monopolies. A "good" monopoly is one that helps Ted Cruz and his pals. A "bad" monopoly is one that gets in their way.

The latest ideological flipflop from the right comes in its relationship to corporate personhood. For a generation, the right has insisted that corporations are people, and, more importantly, corporations are the kinds of people who have free expression rights under the First Amendment of the US Constitution.

Spectacular cases like Citizens United (the right to unlimited secret political spending), Hobby Lobby (the right to withhold birth control based on their "beliefs") and Masterpiece Cakeshop (the right to be free from "compelled speech") all arise out of this theory of corporate personhood.

Then came the tech giants and their moderation policies, which resulted in lifetime bans for several prominent right wing figures. The right decided that this was ideological in nature: the platforms were banning their heroes because they were in the tank for progressives.

But it's not true. Platforms' moderation policies are also grounded in the material, not the ideological. Platforms don't like drama and flamewars because it's bad for business. It might drive "engagement" but most of their users actively dislike being engaged that way, and flamewars need expensive, close moderation to weed out things like doxing and swatting. Platforms don't like drama and flames because they're bad for business:

It's not ideological. They're not in the tank for the left. If they were, then they wouldn't have spent years deplatforming trans people, anti-racist activists, sex workers, indigenous rights activists, and others. Platforms aren't anti-Alex Jones, they're pro-shareholders, and Alex Jones is bad for their shareholders.

Let me be clear: "profit maximization" is a deeply shitty way to run any speech forum, much less one that dominates our discourse. As a leftist, I think that the human rights of sex workers and anti-racist and indigenous activists are more important than the property rights of Facebook and Twitter's shareholders.

But the right can't say that, which creates a conundrum. Corporate persons – Twitter, Facebook, Youtube, Apple – want to exercise their free speech rights to block the right's enfants terribles, because doing so will make more profits for their shareholders. The right has spent generations insisting on the primacy of profits and free speech.

How have they resolved this contradiction? They haven't. They've just leaned into it. Texas's HB20 – a law requiring online platforms to host content they object to, in the name of balance – insists that corporate free speech rights and the interests of shareholders must be subordinated to the rights of Alex Jones and Donald Trump.

The Republicans of the Texas legislature voted in this law. Governor Gregg Abbott signed it. Then, a panel of Fifth Circuit appeals court judges – dominated by GOP appointees – upheld it. Normally, appeals court judges have to explain how they resolve the contradictions between their rulings and other rulings, but not this time.

This time, the Fifth Circuit just made shit up. They inserted clauses into Section 230 of the Communications Decency Act that literally don't exist. They ignored Supreme Court rulings. They ignored the bedrock rule that interstate commerce is a federal matter and out of state hands. They just winged it.

If you want to get a sense of just how bananas the decision in Paxton (as this case is known) is, check out Mike Masnick's brilliant, eye-watering breakdown in The Daily Beast, which goes chapter-and-verse through the incoherence, dishonesty and selectivity of the judges' reasoning:

Masnick compares the ruling in Paxton – and other recent rulings emanating from Federalist Society judges, like the Supreme Court's Dobbs abortion rights ruling – to Calvinball, the game from Calvin and Hobbes whose rules change with every roll of the dice. In Calvinball, Calvin will land on a square that costs him his lead and he'll shout out a new rule: "On Wednesdays, that rule is reversed and you take the penalty!" There's no pretense of consistency or fairness.

It's an apt analogy to the Federalist Society's strange relationship to its own stated ideology, but not just because it's arbitrary – but because it's partisan. When Calvin shouts out a new rule, that rule isn't unpredictable – it benefits him. Likewise when FedSoc judges wing it, they don't just hive off in a random direction. They steer unerringly toward the advantage of the rich and powerful people who bankroll the Federalist Society. They have one principle: "There must be in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect."

HB20 is a nonsense. It correctly observes that tech platforms have too much power over our public discourse, sure, but its remedy for that – forcing tech platforms to carry speech they don't want to host – is gibberish. Daphne Keller has an exciting proposal to illuminate just how bad HB20 would be in practice: give users unfettered access to every post, without any moderation, and then let them click a single button to opt into a moderated flow. She's betting that nearly everyone would click that button (and I think she's right):

It's absolutely true that tech platforms have too much power over our speech, but it's not because of their ideology or their discrimination. It's because of their power, which comes from their monopolistic control and lock in. They accumulated that power due to the ideology of the right, which was grounded in the material principle of making rich people richer by letting them form monopolies.

The right got us into this mess, but they can't get us out of it.

(Image: Helfmann, CC BY-SA 4.0; Rion, CC BY 3.0; modified)

Hey look at this (permalink)

This day in history (permalink)

#20yrsago Software Defined Radio defined

#10yrsago Former top US copyright bureaucrat thinks all communications/entertainment technology should be illegal until Congress approves it

#10yrsago Murdoch’s Times goes back to Google: please index us, just a little!

#5yrsago DHS says it will force everyone who’s ever immigrated to the USA to hand over social media

#5yrsago Indigenous tribes fronting for patent trolls sue Apple

#5yrsago Predictably, Wells Fargo loves Equifax and suggests investing heavily in the company

#5yrsago The brilliant life and brutal death of Bassel Khartabil, killed by Assad for writing free software

#1yrago Shelter is a toxic asset: NIMBYism is a fatal disease

#1yrago Democrats, health care monopolies, and market failures: Market health care is a fatal disease

Colophon (permalink)

Currently writing:

  • The Bezzle, a Martin Hench noir thriller novel about the prison-tech industry. Yesterday's progress: 523 words (43595 words total)

  • The Internet Con: How to Seize the Means of Computation, a nonfiction book about interoperability for Verso. Yesterday's progress: 504 words (39451 words total)

  • Picks and Shovels, a Martin Hench noir thriller about the heroic era of the PC. (92849 words total) – ON PAUSE

  • A Little Brother short story about DIY insulin PLANNING

  • Vigilant, Little Brother short story about remote invigilation. FIRST DRAFT COMPLETE, WAITING FOR EXPERT REVIEW

  • Moral Hazard, a short story for MIT Tech Review's 12 Tomorrows. FIRST DRAFT COMPLETE, ACCEPTED FOR PUBLICATION

  • Spill, a Little Brother short story about pipeline protests. FINAL DRAFT COMPLETE

  • A post-GND utopian novel, "The Lost Cause." FINISHED

  • A cyberpunk noir thriller novel, "Red Team Blues." FINISHED

Currently reading: Analogia by George Dyson.

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  • Chokepoint Capitalism: How to Beat Big Tech, Tame Big Content, and Get Artists Paid, with Rebecca Giblin, nonfiction/business/politics, Beacon Press, September 2022

  • Red Team Blues: "A grabby, compulsive thriller that will leave you knowing more about how the world works than you did before." Tor Books, April 2023

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