The Volokh Conspiracy

I have been Twitter sober now for nearly three years. I do not miss it at all. And I do not plan to join Mastodon, because if it survives (no guarantee), the site will suffer from the same flaws as Twitter.

Social media is premised on a simple idea: Person A posts something that Person B will find useful. Invariably, Person A, desirous of more fans, will try to post things that are of interest to a bigger audience. But in doing so, Person A will start pushing the envelope. Person A, on social media at least, becomes something of a persona. And that persona will differ from how Person A operates in reality. As the persona grows, Person A will garner critics, who I'll refer to as Person C. Person C will try to use Person A's platform to increase Person C's presence. Person C engage Person A–seemingly in good faith–but with a jab in the background. Person A may respond, at least initially, until response seems a waste of time. Person C will fault Person A for not debating. Eventually, Person A stops replying all together, and simply uses Twitter to promote his own work.

Every successful media platform starts off in this period of digital bliss, where only a small cadre of people in a small social network engage with each other. Facebook was launched when I was a junior in college, and it was initially limited to college students on certain campuses. It was great! There was some check on who could participate. But eventually Facebook opened up to people outside the campuses, and eventually everyone around the world. It became much less useful. I also remember when Twitter launched. I used to be able to read all of the tweets my friends wrote. Chronologically, I would just scroll through, and see all the tweets. That task is now impossible.

When any social media site reaches a critical mass, it no longer serves that initial purpose of socialization. So something new comes along. No one can fix that problem. Not even Elon Tusk.

What podcasts do you like, on any topic (history, science, history of science, law, politics, or whatever else)?

Ever since Elon Musk purchased Twitter, Mastodon, a decentralized microblogging platform, has seen millions of new users. I've written elsewhere about the architecture that make Mastodon unique—specifically, each Mastodon server (known as an "instance") can choose its own content moderation standards, blocking whatever content, users, or even other instances that it wants. This leads to what I've called "content moderation subsidiarity" and allows users to tailor their experience while still generally being able to follow and be followed by users on other instances.

Mastodon thus represents a novel solution to the "content moderator's trilemma": the challenge of (1) running a social media platform with a giant and diverse user base, (2) using one set of content moderation standards, and (3) managing user dissatisfaction with the content moderation they experience. Centralized platforms like Twitter respond to the trilemma by accepting that user dissatisfaction is inevitable; decentralized platforms like Mastodon try to satisfy users by giving up on centralized moderation standards.

But it will take time—months, maybe years—for the millions of new Mastodon users to find, and in some cases create, the instances that best suit their needs. In the meantime, we should expect a difficult period of growing pains.

An illustrative example is the ongoing controversy at journa.host, an instance set up for journalists. Mike Pesca, host of The Gist (and formerly at Slate) and a member of the journa.host instance, posted a link to a recent New York Times story about the potential negative effects of treating transgender children and teenagers with puberty blockers, describing the story as "careful, thorough reporting." Parker Molloy, another journa.host user and herself a transgender woman, responded by strongly criticizing the piece and calling Pesca a "bigot" and an "anti-trans ghoul".

Josh Gerstein (Politico) reports:

Psaki's lawyers argued that the deposition would be an "undue burden" on her, in part because it would take her away from her family for several days and interfere with her new job at MSNBC. But during a series of prickly exchanges with Psaki's lead attorney, Jeannie Rhee, [U.S. Magistrate Judge Ivan] Davis said the filings in the case didn't demonstrate any unusual impact she was likely to suffer.

"I don't see any," Davis said. "I'm finding it difficult to see how that's different than any other deponent." …

Davis acknowledged that courts have applied a so-called apex doctrine to make it difficult to depose current and former senior government officials, lest they be routinely dragged into all sorts of time-consuming litigation. But the judge said those concerns are most acute for current officials, not former ones like Psaki, who left the White House in May. "It takes them away from their current obligations they have to the American people based on that job," Davis said.

The judge "ruled that the issue of Psaki's testimony be sent to Louisiana to be resolved by the federal judge overseeing the case filed in May by the states of Louisiana and Missouri."

Jonathan had a post on Friday about the Fifth Circuit's new case, National Horsemen's Benevolent & Protective Ass'n v. Black. It has a few fun features: (1) it's one of the rare cases to strike down a federal statute based on the non-delegation doctrine, and (2) it's one of the even rarer cases to do based on a supposed theory that delegations to private parties are judged by a stricter standard—or are even per se unconstitutional.

In this case, the statute is the Horseracing Integrity and Safety Act, and the private entity is the Horseracing Integrity and Safety Authority. (The case calls the statute HISA and the entity the Authority, so I'll follow the same convention.) The Authority is supposedly subject to the FTC, but the Fifth Circuit finds that the extent of FTC oversight is not nearly great enough, so the Authority wields a lot of coercive power all by itself, which makes this an unconstitutional private delegation.

Now I think the supposed "private nondelegation doctrine", which the Fifth Circuit calls a "commonsense principle", actually doesn't exist. Not just that it's a bad idea: actually, no Supreme Court ~~case~~ [UPDATE: holding] gives it any support, and several Supreme Court cases cut the other way and uphold private delegations under the nondelegation doctrine. (The D.C. Circuit's first Amtrak opinion does give it support, but that opinion was vacated by the Supreme Court.) Plus, such a doctrine would also be a bad idea. (My broader thesis is that there are a bunch of different doctrines that could be called "nondelegation doctrines", but here we're only talking about the Article I Nondelegation Doctrine, so for now I'll stick to that. But I'm working on an article on the broader issue, which I'll probably post here eventually.)

This view is radically at odds with the popular understanding of several Supreme Court cases, mainly A.L.A. Schechter Poultry Corp. v. United States (1935) and Carter v. Carter Coal Co. (1936), so I'll spend some time discussing those. Today, I'll just focus on Schechter Poultry.

I blogged about the charges on Oct. 6 ("Sometimes the Conspiracy Theorists Might Have Something of a Point: The Konnech Controversy"), but on Nov. 9 the D.A.'s office dropped the charges:

In an abrupt reversal, Los Angeles County has dismissed charges against the chief executive of an election software company, marking the end of a case that prominent election deniers cited as evidence of foul play in American elections.

Eugene Yu, CEO of the Michigan-based firm Konnech, was charged in mid October with illegally storing the personal information of poll workers on Chinese servers, a violation of its contract with LA County. Konnech has provided its PollChief software to cities and counties across the country, including a $2.9 million contract with Los Angeles County….

"We are concerned about both the pace of the investigation and the potential bias in the presentation and investigation of the evidence," spokesperson Tiffiny Blacknell said in a statement. The county did indicate that it hasn't ruled out refiling the charges after reviewing the evidence, saying it would "assemble a new team, with significant cyber security experience to determine whether any criminal activity occurred."

I noted yesterday that we had set up a Mastodon account (@VolokhC@liberdon.com), but I also wanted to mention that it was pretty easy:

[1.] I found an "instance," which is to say a place that would host us, and which had moderation rules that we could deal with. For us, it was liberdon.com, "a Mastodon instance for libertarians, ancaps, anarchists, voluntaryists, agorists, etc to sound off without fear of reprisal from jack or zuck." I'm not a libertarian, but I'm somewhat libertarianish and generally libertarian-friendly, so I felt comfortable with using their services and thought they'd feel comfortable with hosting me.

I'm sure there are plenty of users there with whom I'd disagree on many things, but that's likely true in one way or another of most other such hosts, and for that matter of Twitter and Facebook; and I do agree with them about being minimalist as to server-based moderation rules. There are probably lots of instances you can find that are similarly comfortable for you.

[2.] I then set up an account at the host I chose, which was quite easy. The one complication was that it required an e-mail address that wasn't on @gmail.com, @outlook.com, @hotmail.com, or @law.ucla.edu, apparently because it had run into spam problems with those domains. (Not sure how @law.ucla.edu ended up on that list, but there it is.) No problem: I had a @yahoo.com e-mail account that I used (or I could have just set one up for that).

[3.] I then went to moa.party while signed on to my Twitter account and my Mastodon account; I clicked on a few places (which were self-explanatory), and now my Tweets end up on my Mastodon account, and vice versa.

From Friday's decision in Commonwealth v. Collins (Pa. Super. Ct.), written by Judge James Gardner Colins, joined by Presiding Judge Jack Panella:

John William Collins appeals from the judgment of sentence of 15 days' incarceration and a fine of $600 after his non-jury conviction on two counts of harassment….

This case involves a "wanted poster" and five letters that Collins authored and distributed through the United States Postal Service. The poster identifies the "wanted" man as Alan Hoffman, "an individual with whom [Collins] has apparently had a long-running dispute."

The trial court described the poster, letters, and facts of this case as follows:

The posters were copies of the same document … on letter-size paper, featuring a copy of Mr. Hoffman's mug shot and basic booking information for a January 26, 2018, arrest for controlled substance DUI, next to which had been written: "I crossed a Billy goat with a pig. What did you get? See for yourself; it's got a goat face and smells like a pig. $500.00 reward to capture and put in a cage. Call nearest police agency for reward. Trying to impersonate a human being."

The letters were copies of the same package of documents, consisting of: (1) a handwritten note stating the following: "Alan Goat-Face Hoffman, [street address] Three Springs, PA 17264 drives a yellow [car, which] is same color as he is."; and (2) five copies of a page from Mr. Hoffman's Bedford County Court of Common Pleas Court Summary….

11/21/1926: Justice Joseph McKenna died.

Today is the first day of the 2022 World Cup, held in Qatar. Yesterday, FIFA President Gianni Infantino defended his organization's decision to award Qatar the right to host this event. Responding to critics who point out that Qatar is a repressive authoritarian state, Infantino avowed that "Today I feel Qatari. Today I feel Arabic. Today I feel African. Today I feel gay. Today I feel disabled." His assurances of solidarity with gay people might be more credible if FIFA hadn't awarded its premier event to a state where gay sex is a crime, punishable by a sentence of up to seven years in prison. Qatar also severely restricts freedom of speech and expression, including enforcing "chilling" restrictions on foreign media organizations covering the Cup.

The issue of migrant workers' rights is, I think, more complicated than sometimes depicted. Nonetheless, it is clearly unjust that the government makes it difficult or impossible for workers to quit their jobs and switch employers (albeit it has to be admitted that similar flaws also exist in some US work-visa programs).

The best that can be said for Qatar's human rights record is that it it probably isn't as bad as that of the host of the last World Cup: Vladimir Putin's Russia. Like the world's other great international sports event—the Olympics—the World Cup is all too often a propaganda showcase for repressive regimes, and also a cause of human rights violations of its own, such as the forcible displacement of large numbers of people to build stadiums. And, as with the Olympics, the World Cup often ends up with awful authoritarian host countries because of corruption in the international body that makes hosting decisions (in this case FIFA). That's what happened in the cases of both Russia and Qatar.

But it doesn't have to be that way. Earlier this year, in the wake of the awful Beijing winter games, I outlined a series of reform proposals for the Olympics. Most are applicable—with minor modifications—to the World Cup, as well. Here they are, with a few modifications, relevant to the World Cup.

1. No public subsidies. Let the games be funded purely by private organizations and sponsors, as was largely the case for the successful 1984 Olympics in Los Angeles. That way, no one has to pay for the games, except those who profit from them and the audience that voluntarily chooses to watch.

2. No forcible displacement of residents, private businesses, or civil society organizations. We can and should hold sports events without kicking innocent people out of their homes.

3. No hosting rights for authoritarian human rights violators. There are plenty of possible Olympic venues that aren't controlled by likes of Vladimir Putin and Xi Jinping, or the Emir of Qatar. Denying these types of rulers hosting rights won't fundamentally alter their regimes. But it will at least damage their image and deny them propaganda victories.

4. There must be full freedom of speech at all competition venues and in all interactions between competitors, media, and the local population. At the very least, athletes, journalists, and spectators should be entirely free to criticize the host government and its policies (or any other government for that matter).

5. There must be no "public health" measures blocking normal human interaction between athletes, members of the media, and residents of the host city. Such measures defeat the whole point of having the competition in a particular country in the first place. If the Games or the Cup are to be held in a "bubble," that can be done almost anywhere. Moreover, scientific evidence increasingly shows that lockdowns and other similar restrictions on freedom of movement do little to stop the spread of Covid, while causing enormous harm. But if a city really is somehow too disease-ridden to allow normal human interaction, it is also too disease-ridden to host major international sports events. In fairness, this point was largely inspired by the draconian Covid restrictions in China, and may have relatively little relevance to other countries.

It is blatantly obvious that a deeply corrupt organization like FIFA will never accept such constraints of its own accord. The same goes for the International Olympic Committee. But they can be pressured into doing the right thing. The strategy I outlined for how to do this with the Olympics is also applicable for the World Cup:

[T]he United States and other liberal democracies can easily force through these reforms simply by making them a condition of future participation in the games. Without the participation of the US and its allies, IOC revenue would plummet, as the value of broadcast rights massively declines.

The question is whether the US and other Western governments have the political will to do what needs to be done….

The US and other democracies can make these demands more credible by threatening to host alternative Winter and Summer games of their own. This would undermine the objection that boycotts unfairly deprive athletes of the opportunity to compete at the highest level. I suggested a similar strategy to force the IOC to move the 2022 games out of Beijing.

Due to the relatively low popularity of soccer here, the US is a far less important source of TV revenue for the World Cup than the Olympic. But liberal democracies nonetheless still account for the lion's share of FIFA's income from the event. They also have a large majority of the world's top national teams. And, as with the Olympics, western nations can credibly threaten to hold an alternative competition should FIFA refuse to comply.

In sum, liberal democracies have all the leverage they need to permanently do away with the dark side of the World Cup, as well as that of the Olympics. All we need is the political will to use it.

I am far from optimistic that it will be generated anytime soon. But, over time, widespread condemnation of travesties like the Beijing Olympics and the last three World Cups (Russia, Qatar, and the 2014 Cup in Brazil, which featured forcible displacement of thousands of people) might generate momentum for reform.

We've set up an account on Mastodon (to supplement our Twitter account, not to replace it)—please follow us there, @VolokhC@liberdon.com. It should be set up (using moa.party) to automatically post all our Volokh Conspiracy posts; I've tested that using a link to a sandbox account of mine, but I suppose this post is the real test.

Liberdon's content limitations seem relatively modest, as these things go, and I understand them to be warnings about what will get people banned (a risk I'm willing to run) rather than promises on my part not to engage in certain speech. I also hope that the site operators interpret those guidelines sensibly, for instance recognizing that quoting slurs from court cases, such as noting that Snyder v. Phelps involved "God Hates Fags" signs, isn't covered by the prohibition on "ethnic/racial/homophobic slurs"), though of course that's up to them. I'd still at some point like to set up my own server, just so I'd have complete control over what we post (recognizing that others may choose, if they prefer, to block our server as a result); but for now, this seems like a good way to experiment.

Thanks to Gary McGath @GaryM03062 for pointing us to liberdon, and to commenter Shawn Levasseur for recommending moa.party.

Bowie knives are back in constitutional law news these days, after a very long absence. The U.S. Supreme Court's Bruen decision instructs lower courts to look to U.S. legal history to see what sorts of restrictions on Second Amendment rights are consistent with the mainstream American legal tradition. According to the Court, the legal history of the Founding Era is the most important, the late nineteenth century much less so, and the twentieth century too late to create a tradition that contradicts the text of the Second Amendment.

Post-Bruen, some gun control advocates have been looking to Bowie knife laws as analogical justifications for bans on common modern rifles and magazines. In a separate post, Bowie knife statutes 1837-1899, I provide a state-by-state survey of all state Bowie knife laws through 1899. This post examines constitutional case law on Bowie knives, the history of such knives, and the history of pre-1900 bans on types of firearms.

As described below, valid pre-1900 precedents on firearms prohibitions are non-existent. Bruen suggests that "dramatic technological changes may require a more nuanced approach" in drawing historical analogies to justify modern arms controls. Accordingly, there has been renewed interest in Bowie knives, which are said to be a new technology that appeared in the early 19th century. In the Fourth Circuit, Maryland Attorney General Frosh is defending a Maryland ban on many common rifles. In his recently-filed supplemental brief in Bianchi v. Frosh, Bowie knife laws are an important part of his argument, including with a citation to my article Knives and the Second Amendment, 47 U. Michigan J. of Law Reform 175 (2013) (with Clayton Cramer and Joseph Olson).

At a previous stage in the case, I coauthored an amicus brief in support of the plaintiffs' cert. petition, Bianchi v. Frosh. No. 21-902. The brief was on behalf of Professors of Second Amendment Law (including VC's Randy Barnett), Cato Institute, John Locke Foundation, Center to Keep and Bear Arms (Mountain States Legal Foundation), and Independence Institute. The week after Bruen, the Supreme Court granted cert., vacated the decision below (the Fourth Circuit upholding the ban), and remanded for consideration in light of Bruen.

This post proceeds as follows:

Part I summarizes Bruen's rules for reasoning from historical analogies.
Part II summarizes the pre-1900 American history of firearms bans. Four states enacted some sort of prohibitory law on particular types of firearms.
Part III explains Bowie knives, and the infamous 1837 murder on the floor of the Arkansas legislature that may have spurred legislative action in several states.
Part IV examines the three major state supreme court cases involving Bowie knives:
- In Georgia, Nunn v. State (1844) held that a statute banning Bowie knives and handguns violated the Second Amendment.
- In Tennessee, Aymette v. State (1840) upheld a ban on concealed carry of Bowie knives as not violating the state constitution. The court stated that the right to keep arms was individual, but the right to bear arms was only for military service, such as the militia. Mistakenly, the court said that a Bowie knife would be of no use to a militia. To the contrary, many militias used Bowie knives, before and after 1840.
- Cockrum v. State (1859) applied the Texas Constitution and the Second Amendment and stated, "The right to carry a bowie-knife for lawful defense is secured, and must be admitted." However, enhanced sentencing for use of a Bowie knife in murder was constitutional.

The other post, Bowie knife statutes 1837-1899, excerpts and analyzes state 19th-century Bowie knife statutes. With very rare exceptions, states that chose to regulate Bowie knives treated them the same as other, older, types of fighting knives, namely dirks and/or daggers. As described in this post, "Bowie knives" were briefly considered to be a new type of arm, but they were not. Bowie knife laws turned into general laws about large knives, and so in statutes, "Bowie knife" was joined by other well-known fighting knives.

The knife category of Bowie knives plus dirks and/or daggers was frequently regulated at the same level as handguns. That is, prohibitions were rarities. The mainstream approach for handguns and knives was non-prohibitory for peaceable adults, such as laws forbidding concealed carry (while allowing open carry), prohibiting sales to minors, or specially punishing misuse.

Whatever 19th century handgun laws teach about permissible limits on the right to arms, the Bowie knife laws go no further. Because Bowie knives are so often in pari materia with 19th-century handgun regulations that they add little if anything to the very thin base of historical precedents for prohibitions on common arms.

The legal history of Bowie knives reinforces the U.S. Supreme Court's history-based holdings about permissible handgun regulation. Bowie knives were not some extraordinary category for which regulation was more severe than was typical for handgun control.

This post describes and analyzes nineteenth century state statutes on Bowie knives. It is a companion to my post The legal history of bans on firearms and Bowie knives before 1900, which described case law.

As detailed in that article, the term "Bowie knife" because popular for knife marketing in America and Great Britain after Jim Bowie used a traditional knife at a famous "sandbar fight" on the lower Mississippi River in 1827. Statutes specifically regulating the "Bowie knife" began with Mississippi in 1837, and continued for the rest of the century.

Among the 220 state or territorial statutes with the words "Bowie knife" or "Bowie knives" only 5 were just about Bowie knives (along with their close relative, the Arkansas toothpick). Almost always, Bowie knives were regulated the same as other well-known knives that were well-suited for fighting against humans and animals–namely "dirks" or "daggers." That same regulatory category frequently also included "sword-canes." About 98% of statutes on "Bowie knives" treated them the same as other blade arms. Bowie knives did not set any precedent for a uniquely high level of control. They were regulated the same as a butcher's knife.

Bowie knives and many others were often regulated like handguns. Both types of arms are concealable, effective for defense, and easy to misuse for offense.

For Bowie knives, handguns, and other arms, a few states prohibited sales. The very large majority, however, respected the right to keep and bear arms, including Bowie knives. These states allowed open carry while some of them forbade concealed carry. In the 19th century, legislatures tended to prefer that people carry openly; today, legislatures tend to favor concealed carry. Based on history and precedent, legislatures may regulate the mode of carry, as the the U.S. Supreme Court affirmed in New York State Rifle and Pistol Association v. Bruen, 142 S. Ct. 2111 (2022).

Besides regulating the mode of carry, many states restricted sales to minors. They also enacted special laws against misuse of arms.

Of the 220 state or territorial statutes cited in this post, 114 come from just 5 states: Mississippi, Alabama, Georgia, Virginia, and North Carolina. This is partly because these were the only states whose personal property tax statutes specifically included "Bowie knife" in their lists of taxable arms, along with other knives, such as "dirks."

Glossary

Bowie knife. This was marketing and newspaper term for old or new knives suitable for fighting, hunting, and utility. There was no common feature that distinguished a "Bowie knife" from older knives. For example, a "Bowie knife" could have a blade sharpened on only one edge, or on two edges. It could be straight or curved. It might or might not have a handguard. There was no particular length. The legal history of bans on firearms and Bowie knives before 1900.

Arkansas toothpick. A loose term for some Bowie knives popular in Arkansas. The legal history of bans on firearms and Bowie knives before 1900.

Dagger. A straight knife with two cutting edges and a handguard.

Dirk. Originally, a Scottish fighting knife with one cutting edge. Harold L. Peterson, Daggers & Fighting Knives of the Western World 60 (1968). According to a Nov. 19, 2022, email to me from Mark Zalesky, publisher of Knife Magazine, "Dirks in America were small stabbing weapons, usually small daggers but sometimes single edged." Many 19th century laws forbade concealed carry of "dirks" and/or "daggers." The statutory formula of "bowie knife + (dirk and/or dagger)" covered fixed-blade knives well-suited for defense or offense. The category does not include pocket knives.

Sword-cane. A sword concealed in a walking stick. Necessarily with a slender blade.

Slungshot. A slungshot is a rope looped on both ends, with a lead weight or other small, dense item at one end. It helps sailors accurately cast mooring lines and other ropes. A slungshot rope that is shortened to forearm length and spun rapidly is an effective blunt force weapon.

Colt. Similar to a slungshot. 1 Shorter Oxford English Dictionary 444 ("4. A short piece of weighted rope used as a weapon").

Knucks, knuckles. Linked rings or a bar, often made of metal, with finger holes. They make the fist a more potent weapon.

Revolver. A handgun in which the ammunition is held in a rotating cylinder.

Pistol. Often a generic term for handguns. Sometimes used to indicate non-revolvers, as in a law covering "pistols or revolvers."

Methodology

I started with the Appendix to Clayton E. Cramer, Concealed Weapon Laws of Early Republic: Dueling, Southern Violence, and Moral Reform (1999), plus the Appendix to Maryland Attorney General Brian Frosh's Fourth Circuit supplemental brief in Bianchi v. Frosh. The brief argues that 19th century laws about Bowie knives provide a historical analogy to justify the Maryland legislature's ban on many common modern rifles.

Then I searched the HeinOnline Sessions Law Library for occurrences of "bowie" within 5 words of "knife." After that, the same search, but with "knives." In some state databases, I searched for "bowie." Finally, I read the Declaration of Robert Spitzer, which is Exhibit E of the California Attorney General's Supplemental Brief in Response to the Court's Order of September, 26, 2022, Duncan v. Bonta, No. 17-cv-1017-BEN-JLB (S.D. Cal. Nov. 10, 2022). The case involves a challenge to a California statute to confiscate magazines over 10 rounds.

Reviewing the Spitzter Declaration led to finding three laws I had missed: an 1871 D.C. ordinance, an 1893 Rhode Island statute, and another enactment of a Montana anti-dueling statute. Spitzer also lists 16 municipal ordinances about Bowie knives in the 19th century, which are summarized below, after the state-by-state presentation.

Citations: Some session laws cites below exceed the information required by the Blue Book. I follow the convention of calling each separate enactment in annual session laws a "chapter." That is, "chap. 68" was the 68th law enacted by the state legislature that year. The official state session laws sometimes use other words, such as "Act 68" or "No. 68." Not all session laws provide a number for the bills enacted in a given session.

This post is part of a law review article I am writing, so it has not been cite-checked by journal editors; citations might have typos or similar errors. Nemo sine vitiis est (no one is without faults).

11/20/1910: Justice William Henry Moody retired.

From Doe v. Google LLC, decided yesterday by the Ninth Circuit (Judges Margaet McKeown, Consuelo Callahan, and Lawrence Vandyke):

Appellants are fourteen self-described "conservative" content creators who spent years growing their YouTube channels and amassing more than 771 million views. These channels discussed topics such as "Hunter Biden and the Ukraine Scandal," "the ongoing corruption probe," "social media censorship," "race relations or protests in America," and "anonymous posts on political issues by someone identifying themselves as 'Q.'" Appellants' videos were hosted on YouTube, a video sharing platform whose Terms of Service give it discretion to terminate accounts under certain circumstances, including if YouTube believed that there was "conduct that create[d] (or could create) liability or harm to any user, other third party, YouTube or [its] Affiliates."

Appellants allege that on October 15, 2020, YouTube terminated or suspended Appellants' channels, claiming that it was "taking another step in [its] efforts to curb hate and harassment by removing more conspiracy theory content used to justify real-world violence." … In their claim for a First Amendment violation, which is the premise for federal court jurisdiction, Appellants asserted that YouTube and Google—the parent company of YouTube—either conspired with the federal government, or were compelled by the federal government, to take down their video content. This, they argue, constitutes an activity akin to state action and supports the assertion of a constitutional claim against a private company for its conduct.

In support of their assertion, Appellants cite seven events involving federal officials regarding YouTube, Google, or general social media platform moderation policies that took place between 2019 and 2020: (1) statements by House Speaker Nancy Pelosi on possibly removing the protection provided to social media platforms under Section 230 of the Communications Decency Act; (2) a letter by Representative Adam Schiff to Google's CEO and YouTube's CEO encouraging the curbing of COVID-related misinformation on social media platforms; (3) a statement by Speaker Pelosi at a Georgetown University forum on COVID calling for greater accountability for "the division and the disinformation proliferating online"; (4) the Senate Commerce Committee's vote to compel the testimony of Google's CEO regarding content moderation; (5) the House of Representatives' passage of House Resolution 1154, a non-binding resolution condemning the "QAnon" conspiracy theory, encouraging Americans to "seek information from authoritative sources," and acknowledging social media platforms efforts to remove "QAnon groups and their content from their platforms"; (6) a Department of Justice antitrust lawsuit against Google for maintaining monopolies in general search services and search advertising; and (7) the questioning of Facebook founder Mark Zuckerberg by the Senate Judiciary Committee concerning programs used to "to coordinate censorship efforts targeting content creators and others who expressed disfavored viewpoints." …

"The LSAT has its problems, but it at least provides schools with a way to compare students who come from different undergraduate schools who pursue very different courses of study that are subject to different degrees of grade inflation," Mr. Korobkin said in an email.

Seems quite right to me. Of course, according to the Times, he's the dean at "U.C.L.A.," so maybe they're not actually quoting the UCLA dean. (Plus wouldn't the U.C.L.A. dean only know about the L.S.A.T.?)

I'm still thinking about setting up a Mastodon account (in addition to, not instead of, our Twitter feed), but I'm hesitant about setting it up on an existing Mastodon server.

Some of them have Terms of Service that I'd prefer not to sign on to: I don't personally think, for instance, that any of my posts involve "racism, sexism, homophobia, transphobia, xenophobia, or casteism," "incitement of violence or promotion of violent ideologies," "harassment, dogpiling or doxxing of other users"; but who knows what those terms mean these days? Will someone decide that expressing skepticism about certain forms of immigration "xenophobia," or questioning whether transgender athletes should compete on women's teams "transphobia"? Will someone conclude that arguing for broadening the scope of permissible armed self-defense (or of permissible conduct during war) is a "violent ideolog[y]"? Will someone label identifying the name of someone who would prefer to remain anonymous, something that news outlets often do in the right circumstances, "doxxing"? Plus given how many people view a vast range as "structural racism," does it follow that people who defend them (and perhaps fight the premise that racially disparate impacts are "racism") are therefore themselves engaged in "racism"?

To be sure, I can probably in good faith just interpret the terms my own way; I don't think I'd be lying if I agreed to them. We auto-feed to Facebook and Twitter, after all; all of us have to reconcile ourselves to the world as it is in many ways. But I'd prefer not to, if possible, and I would think that in principle it would be possible here. (That's especially so since the blog has some funds to pay a reasonable amount for the hosting or similar services.) [UPDATE: I should add that, if a site simply says "Here's what we could expel you for," rather than asking me to agree not to post such things, I'm more open to that, especially since (as I understand it) switching Mastodon servers isn't that difficult, though still annoying. I'm more concerned about having to make promises about such things.]

I thought that maybe some university systems would have Mastodon servers that are less interested in content restrictions (cf. this story as to Zoom), but a quick search for university mastodon chiefly revealed the Purdue Fort Wayne Mastodons. And in any event, I'm not inclined to count on many universities these days, either.

11/19/1969: Walz v. Tax Commission of City of New York argued.

The Volokh Conspiracy

Mastodon or Mastodon't?

Media Monday: Podcasts

Mastodon's Content-Moderation Growing Pains

[I asked Prof. Alan Rozenshtein (University of Minnesota) to write a post about Mastodon and one particular recent controversy related to it, and he very kindly agreed. -EV]

Magistrate Judge "Openly Scoffed" at Former Press Secretary Jen Psaki's "Efforts to Escape a Deposition"

"in a suit over alleged pressure on social media firms to censor posts on topics like Covid-19 vaccines and election fraud."

The Horseracing Case and How It Misunderstands Private Delegation

Despite a recent Fifth Circuit case, there is no private nondelegation doctrine.

L.A. County D.A.'s Office Drops Charges Against Konnech

Easy to Set Up a Mastodon Account to Mirror Your Twitter Account

Crime to Publicize Man's DUI (with Insults) as Part of "Feud," "Intended to Shame and Provoke"

So holds the Pennsylvania intermediate appellate court, rejecting a First Amendment defense.

Today in Supreme Court History: November 21, 1926

How to Fix the Dark Side of the World Cup

Like the Olympics, the World Cup is rife with human rights abuses and glorification of authoritarian host regimes. It doesn't have to be that way.

Follow Us on Mastodon, @VolokhC@liberdon.com

The legal history of bans on firearms and Bowie knives before 1900

Bowie knife statutes 1837-1899

Bowies were regulated like other knives; knives were sometimes regulated like handguns

Today in Supreme Court History: November 20, 1910

Ninth Circuit Rejects Claims That YouTube's Blocking of Content Was Compelled by or "Entangled with" Government

UCLA Law Dean Russell Korobkin on the LSAT

Setting Up Mastodon Server, Using an Outside Service or on Our Own?

Trying to get up to speed on Ice Age technology.

Today in Supreme Court History: November 19, 1969

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