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Texas' Unconstitutional Social Media Censorship Bill Challenged In Court, Just As Texas Joins The Legal Fight For Florida's Unconstitutional Social Media Bill

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Texas and Florida. Florida and Texas. Two states with governors who have decided that culture warrioring and "owning the libs" is way more important than the Constitution they swore to protect and uphold. As you'll recall, last month Texas Governor Greg Abbott decided to use the internet services he hates to livestream his signing of the clearly unconstitutional HB20 that seeks to block social media sites from moderating how they see fit.As we had pointed out, Florida had beaten Texas to the punch on that and a court had already tossed out the bill as an unconstitutional infringement of 1st Amendment rights. Now a state that was looking to actually do things correctly would maybe see that and recognize that maybe it's not worth wasting millions of taxpayer dollars to do the exact same thing, but Texas went ahead.And, now, the same two organizations that sued to strike down Florida's law, NetChoice and CCIA, have similarly sued to strike down Texas' law.

At bottom,H.B. 20 imposes impermissible content- and viewpoint-based classifications to compel a selectfew platforms to publish speech and speakers that violate the platforms' policiesand to presentthat speech the same way the platforms present other speech that does not violate their policies.Furthermore, H.B. 20 prohibits the platforms from engaging in their own expression to label orcomment on the expression they are now compelled to disseminate. And in light of the statute'svague operating provisions, every single editorial and operational choice platforms make couldsubject those companies to myriad lawsuits.These restrictionsby striking at the heart of protected expression and editorialjudgmentwill prohibit platforms from taking action to protect themselves, their users,advertisers, and the public more generally from harmful and objectionable matter. At a minimum,H.B. 20 would unconstitutionally require platforms like YouTube and Facebook to disseminate,for example, pro-Nazi speech, terrorist propaganda, foreign government disinformation, andmedical misinformation. In fact, legislators rejected amendments that would explicitly allowplatforms to exclude vaccine misinformation, terrorist content, and Holocaust denial.Additional H.B. 20 provisions will work to chill the exercise of platforms' FirstAmendment rights to exercise their own editorial discretion and to be free from state-compelledspeech. H.B. 20 will impose operational mandates and disclosure requirements designed toprescriptively manageand therefore interfere with and chillplatforms' exercise of editorialdiscretion. In a series of intrusive provisions, H.B. 20 requires social media platforms to publishhow they intend to exercise their discretion, document in excruciating detail how they exercisetheir editorial discretion over potentially billions of pieces of content, and operate inherentlyburdensome and unworkable individualized complaint mechanismsall of which together workto compel or otherwise challenge the platforms' countless daily uses of editorial discretion.
Notably, the lawsuit does not challenge the email filter provisions in the law, which effectively means that on December 2nd, if no one else tries to stop it, spam filters may be in violation of Texas' law. As Prof. Eric Goldman has noted, any spammer whose email is caught in a spam filter will then be able to sue the filter provider and seek statutory damages. Fun stuff!Meanwhile, also this week, just to show how totally committed Texas Attorney General Ken Paxton is to unconstitutional restrictions on the free exercise of editorial discretion, he also filed an amicus brief in the appeal of the Florida ruling. A bunch of other states (Alabama, Alaska, Arizona, Arkansas, Kentucky, Mississippi, Missouri, Montana, and South Carolina) all signed on, but this is a Texas product. Also, it's hot garbage. It insists that these bills don't regulate speech -- when they very, very clearly do.
But the district court's First Amendment analysis is riddledwith errors. It veered off course from the outset by concluding that S.B. 7072 regulates speech, when that law instead regulates conduct that is unprotected by the FirstAmendment: social media platforms' arbitrary application of their content moderation policies.
I mean, what? Of course, content moderation policies are protected by the 1st Amendment. It's basic editorial discretion.The entire amicus brief tries to claim that editorial discretion is "conduct" and not speech -- and that would upend basically all 1st Amendment precedent. And if Texas actually got its way with this, then that would enable the government to regulate who could appear on Fox News and other media organizations, claiming that those demands are "conduct, not speech."
Nothing in S.B. 7072's neutrality and disclosure provisions regulates the speechof Plaintiffs or the members of their trade associationsthey neither limit[] what[Plaintiffs or their members] may say nor require[] them to say anything. FAIR,547 U.S. at 60. Instead, at most these provisions regulate the conduct of Plaintiffs andtheir members: their arbitrary and blunderbuss content-moderation policies
This is... wrong. Requiring them not to moderate certain content (as the Florida bill does for political speech) is absolutely requiring them to associate with speech they may disagree with -- and such compelled association is a violation of the 1st Amendment. Did Ken Paxton actually graduate law school without learning this?Like Florida did in its case, the Texas Amicus brief relies heavily on Rumsfeld v. FAIR. The district court in Florida rightly pointed out that FAIR does not apply here and is easily distinguished:
The Florida statutes now at issue, unlike the state actionsin FAIR and PruneYard, explicitly forbid social media platforms from appendingtheir own statements to posts by some users. And the statutes compel the platformsto change their own speech in other respects, including, for example, by dictatinghow the platforms may arrange speech on their sites. This is a far greater burden onthe platforms' own speech than was involved in FAIR or PruneYard.
But, Texas insists otherwise -- and now we have to hope that the panel of Judges on the 11th Circuit recognizes the absolute garbage that is Texas' brief.

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posted at: 12:00am on 25-Sep-2021
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Italy Vows To Bring Entire Government To Bear To Oppose Croatian 'Prosek' Trademark

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We've written a couple of times about the Consorzio di Tutela della Denominazione di Origine Controllata Prosecco, whom I have nicknamed "The Prosecco People" because I'm not typing that every time. This organization with the sole goal of protecting the "Prosecco" name from being used, or nearly used, by anyone else has taken this mission to extreme lengths historically. Serving as examples were such times as The Prosecco People opposing a French company's non-alcoholic sparkling wine brand dubbed "Nosecco", as well as bullying a pet treat company that created a drink for pets called "Pawsecco". In both cases, if you can find any real reason to worry about public confusion as to the source of those goods, you're a crazy person.But those examples were parodies and puns that at least nodded at the Prosecco product. The latest bullying attempt to protect the Prosecco brand comes from Italian government ministers and targets the EU's consideration for protected status of a Croatian sweet wine called "Prosek."

Italy said on Wednesday it would protest to the European Commission over an attempt by Croatia to get EU-protected label status for a sweet white wine which Rome says has a name that is too similar to its own famed prosecco. Brussels agreed on Tuesday to consider an application by Croatia to have its Prosek wine classified as a recognised protected label (PDO), outraging Italian producers who said the name would create confusion among consumers.Agriculture Minister Stefano Patuanelli told state broadcaster RAI the whole Italian government would oppose the application "in an adequate and compact way".
The whole Italian government? Dang, I guess Italy is simply not fucking around on this one. Which is a bit silly, actually, as Prosek has nothing to do with Prosecco. While the EU originally did refuse to register the name of Prosek for protected status back in 2013, the fact is that Prosek has been around for literally thousands of years, isn't a sparkling wine, doesn't use the same grapes for production, and there is not a single ounce of shared history when it comes to the origin of each's name. In other words, Prosek is a thing in the world, whether Italy wants it to be or not. In addition, it's worth noting that Prosek is made with red grapes, so even the coloration of the drinks are different.But, despite all of that, apparently the Prosecco folks in Italy have absolutely lost their minds over this.
Luca Zaia, governor of the northerly Veneto region, which is a major prosecco producer, called Croatia's application "an absolute disgrace" and demanded vigorous opposition from Prime Minister Mario Draghi's government."They are stealing an important label from our country, it's as if they wanted to take away Ferrari," he said.
Yeah, not really. There is no stealing here at all. There is only Croatia seeking to get protected status on an age-old wine it has made for a long, long time. In remarks, the EU commission indicated that just because the two types of wine have some similarity in sound, that doesn't mean Prosek can't receive protected status. For that to be denied, there would need to be reasonable concern about customer confusion.But, as you can see above, very little about Italy's stance on this is reasonable. Nor has been its past bullying over Prosecco.

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posted at: 12:00am on 25-Sep-2021
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