{"id":2250936,"date":"2024-05-23T03:18:02","date_gmt":"2024-05-23T07:18:02","guid":{"rendered":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/if-the-judges-in-rfks-censorship-case-were-really-liberal-theyd-defend-free-speech\/"},"modified":"2024-05-23T03:25:44","modified_gmt":"2024-05-23T07:25:44","slug":"if-the-judges-in-rfks-censorship-case-were-really-liberal-theyd-defend-free-speech","status":"publish","type":"post","link":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/if-the-judges-in-rfks-censorship-case-were-really-liberal-theyd-defend-free-speech\/","title":{"rendered":"If the judges in RFK&#8217;s censorship case were truly liberal, they would support free speech"},"content":{"rendered":"<aside class=\"mashsb-container mashsb-main mashsb-stretched\"><div class=\"mashsb-box\"><div class=\"mashsb-count mash-medium\" style=\"&quot;\"><div class=\"counts mashsbcount\">30<\/div><span class=\"mashsb-sharetext\">SHARES<\/span><\/div><div class=\"mashsb-buttons\"><a class=\"mashicon-facebook mash-medium mash-nomargin mashsb-noshadow\" href=\"https:\/\/www.facebook.com\/sharer.php?u=https%3A%2F%2Fwww.conservativenewsdaily.net%2Fbreaking-news%2Fif-the-judges-in-rfks-censorship-case-were-really-liberal-theyd-defend-free-speech%2F\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Facebook<\/span><\/a><a class=\"mashicon-twitter mash-medium mash-nomargin mashsb-noshadow\" href=\"https:\/\/twitter.com\/intent\/tweet?text=&amp;url=https:\/\/www.conservativenewsdaily.net\/breaking-news\/?p=2250936&amp;via=ConservNewsDly\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Twitter<\/span><\/a><a class=\"mashicon-subscribe mash-medium mash-nomargin mashsb-noshadow\" href=\"#\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Subscribe<\/span><\/a><div class=\"onoffswitch2 mash-medium mashsb-noshadow\" style=\"display:none\"><\/div><\/div>\n            <\/div>\n                <div style=\"clear:both\"><\/div><\/aside>\n            <!-- Share buttons by mashshare.net - Version: 4.0.47--><p>The text discusses\u200b Ninth\u200b Circuit\u2064 Judge Gabriel \u2062Sanchez&#8217;s background\u200d and legal involvement in cases related \u200bto\u200d free \u200bspeech \u200dand\u2063 censorship, particularly focusing on the \u200bRFK v.\u2064 Google \u2063case. It delves into\u2063 the argument \u2063that large internet\u2064 platforms like Google should \u200cbe public forums, immune \u200bto speech regulation under Section 230 of\u2063 the Communications Decency Act. The article draws parallels with historical Supreme Court cases and advocates for\u2063 upholding free speech\u200b rights in \u2064digital spaces.  <\/p>\n<p class=\"readmore\">\n    <button onclick=\"showReadMore()\" id=\"readmorebtn\">Read more&#8230;<\/button>\n<\/p>\n<hr id=\"line\">\n<span id=\"more\"><\/p>\n<p><?xml encoding=\"utf-8\" ?><?xml encoding=\"utf-8\" ?><?xml encoding=\"utf-8\" ?><\/p>\n<div class=\"article-content\">\n<p>Ninth Circuit Judge Gabriel Sanchez spent his first years out of college studying presidential politics in Argentina. After law school, while working for a big firm, he <a href=\"https:\/\/afj.org\/nominee\/justice-gabriel-p-sanchez\/\" target=\"_blank\" rel=\"noreferrer noopener\">won an award from the ACLU<\/a>. Later, as California Gov. Jerry Brown\u2019s top legal adviser, he oversaw the litigation that found overcrowding in California\u2019s prisons to violate the Eighth Amendment because they constituted \u201ccruel and unusual\u201d punishment, a novel legal argument that, while upheld by the Supreme Court (in a 5-4 vote), drew sharp criticism from the court\u2019s conservatives, including Antonin Scalia, who called it \u201cperhaps the most radical injunction issued by a court in our Nation\u2019s history.\u201d<\/p>\n<p>Given that record, one would imagine Judge Sanchez considers himself a liberal who looks to liberal icons like William Brennan and Thurgood Marshall for guidance.<\/p>\n<div class=\"fdrlst__b89e9-paragraph-2-long d-flex justify-content-center\" style=\"margin-left: auto; margin-right: auto; text-align: center; \" id=\"fdrlst__b89e9-793083613\">\n<div id=\"div-gpt-ad-1379703300879-0\" class=\"mb-30\"><\/div>\n<\/div>\n<div class=\"fdrlst__b89e9-c2fb561d850621395a9a59a540b00e55 fdrlst__b89e9-paragraph-2\" id=\"fdrlst__b89e9-c2fb561d850621395a9a59a540b00e55\"><\/div>\n<p>He\u2019s not, at least not based on my experience with him last week.<\/p>\n<p>Our exchange came in the case <em>Kennedy v. Google<\/em> that Robert F. Kennedy Jr. filed against Google to prevent the tech giant from censoring him on YouTube during his presidential campaign. (I am the lawyer leading that case.) YouTube took down two of his videos questioning the efficacy of the Covid-19 vaccines and pandemic lockdowns, stating it was medical misinformation. <\/p>\n<p>The case is like <em>Murthy v. Missouri<\/em>, which was argued at the Supreme Court in March. But it\u2019s not identical. Among other things, we argue that Section 230 of the Communications Decency Act made large internet-based platforms like Google and YouTube public forums, where viewpoint discrimination is never allowed. In exchange, they got immunity for the speech that occurs on their platforms.<\/p>\n<p>Tech companies have long argued that they are forums open to everybody. They are not publishers that vouch for the content that appears on their platforms. So when they were lobbying for Section 230 in the 1990s, they argued they are \u201c<a href=\"chrome-extension:\/\/efaidnbmnnnibpcajpcglclefindmkaj\/https:\/coolidgefoundation.org\/wp-content\/uploads\/2022\/09\/Section-230-Brief-FINAL.pdf\">something like a bulletin board in a town square, where people come and go, leaving their messages<\/a>.\u201d<\/p>\n<div class=\"fdrlst__b89e9-43fdb287974617df2b817130895dce98 fdrlst__b89e9-paragraph-6\" id=\"fdrlst__b89e9-43fdb287974617df2b817130895dce98\"><\/div>\n<p>As a result, unlike publishers, tech companies such as Google got immunity over the content that appears on their websites. And the public nature of their sites allowed them to claim the benefits of procedural rules like California\u2019s anti-SLAPP statute.<\/p>\n<p>That makes sense. YouTube certainly looks like a public forum. It is a place where millions \u2014 indeed, billions \u2014 of people go to get information and discuss the issues of the day. Indeed, websites such as YouTube are freely accessible to anybody who can get online, which accounts for <a href=\"https:\/\/www.forbes.com\/home-improvement\/internet\/internet-statistics\/#:~:text=As%20of%202024%2C%2094.6%25%20of,have%20access%20to%20the%20internet.&#038;text=As%20of%202024%2C%20the%20internet,according%20to%20a%20U.S.%20Census.\">94.6 percent of Americans<\/a>. Yes, Google may own the YouTube domain name. That allows it to profit from the activity that occurs on the site. But it does not own the internet. It does not control who comes into the site.<\/p>\n<h2 class=\"wp-block-heading\">History of a Liberal Supreme Court<\/h2>\n<p>For years, Democrats championed the openness of the internet. Barack Obama took digital campaigning to a new level in 2008. According to <a href=\"https:\/\/www.theguardian.com\/technology\/2008\/nov\/07\/barackobama-uselections2008\">The Guardian<\/a>, that was because \u201c[t]here are no barriers to entry on sites like Facebook and YouTube. Power is diffused towards the edges because everybody can participate.\u201d These are quintessential public forums.<\/p>\n<p>Old-fashioned liberals like Brennan and Marshall would have agreed with that.<\/p>\n<div class=\"fdrlst__b89e9-1ae08921d522e72664ef8fa36a3ae304 fdrlst__b89e9-paragraph-10\" id=\"fdrlst__b89e9-1ae08921d522e72664ef8fa36a3ae304\"><\/div>\n<p>They were both on the Supreme Court during the 1960s, a period that saw a sea change in the Supreme Court\u2019s constitutional jurisprudence. This was a period in which, to <a href=\"chrome-extension:\/\/efaidnbmnnnibpcajpcglclefindmkaj\/https:\/digitalcommons.law.scu.edu\/cgi\/viewcontent.cgi?article=2062&#038;context=lawreview&#038;httpsredir=1&#038;referer=\">quote one scholar<\/a>, \u201cliberal activists exercised almost complete control over the Court\u2019s decisions.\u201d This was the time of <em>Gideon v. Wainwright<\/em> (free counsel for indigent criminal defendants), <em>Griswold v. Connecticut<\/em> (the right to privacy), <em>Miranda v. Arizona<\/em> (the right-to-remain-silent warning), and <em>Tinker v. Des Moines<\/em> (free speech for students in public schools).<\/p>\n<p>At the peak of this era (1968), the Supreme Court decided <a href=\"https:\/\/www.oyez.org\/cases\/1967\/478\"><em>Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc.<\/em><\/a>  There it found that Americans have a right to free speech (picketing) on private property (a shopping center) that is generally open to the public.<\/p>\n<p>Justice Marshall wrote the majority opinion. He noted that after World War II, large shopping centers like Logan Valley had popped up all over America, as millions of Americans left cities and towns \u2014 with their main streets and business blocks \u2014 for the suburbs. The shopping centers had become the new town square. And he stated that \u201cbecause the shopping center serves as the community \u2018business block\u2019 and is \u2018freely accessible and open to the people in the area and those passing through,\u2019 \u2026 the State may not delegate the power, through the use of its trespass laws, wholly to exclude those members of the public wishing to exercise their First Amendment rights on the premises in a manner and for a purpose \u2026 generally consonant with the use to which the property is actually put.\u201d<\/p>\n<p>Liberal icon William O. Douglas echoed that sentiment, writing: <\/p>\n<blockquote class=\"wp-block-quote is-layout-flow wp-block-quote-is-layout-flow\">\n<p>While Logan Valley Mall is not dedicated to public use to the degree of the \u201ccompany town\u201d in <em>Marsh v. Alabama<\/em> \u2026 it is clear that respondents have opened the shopping center to public uses. They hold out the mall as \u201cpublic\u201d for purposes of attracting customers and facilitating delivery of merchandise. Picketing in regard to labor conditions at the Weis Supermarket is directly related to that shopping center business. Why should respondents be permitted to avoid this incidence of carrying on a public business in the name of \u201cprivate property\u201d?<\/p>\n<\/blockquote>\n<p>Conservatives were furious. Byron White \u2014 appointed by John F. Kennedy and one of the most disappointing Democrat appointees ever \u2014 emphasized the private ownership of the center, adding that \u201cit is a place for shopping, and not a place for picketing.\u201d<\/p>\n<p>That year, Richard Nixon was elected president. By 1972, Nixon had appointed four new Supreme Court justices (Warren Burger, Harry Blackmun, Lewis Powell, and William Rehnquist), all staunch conservatives. <em>Logan Valley<\/em> was on thin ice. And by July 1972, it was effectively overruled in <a href=\"https:\/\/supreme.justia.com\/cases\/federal\/us\/407\/551\/\"><em>Lloyd Corp. v. Tanner<\/em><\/a>. <\/p>\n<p>The decision was controversial, a 5-4 vote in which the four Nixon appointees joined White to find that people did not have a First Amendment right to picket on a <a href=\"https:\/\/www.conservativenewsdaily.net\/breaking-news\/federal-court-deals-major-blow-to-big-tech-and-sets-up-scotus-to-restore-free-speech\/\" title=\"Federal Court Deals Major Blow To Big Tech And Sets Up SCOTUS To Restore Free Speech\">privately owned shopping center<\/a> in Portland, Oregon.<\/p>\n<p>Marshall, predictably, was upset. His dissent contains one of the most eloquent defenses of <a href=\"https:\/\/www.conservativenewsdaily.net\/breaking-news\/states-push-to-rein-in-big-tech-as-federal-gears-grind-slow\/\" title=\"States Push to Rein in Big Tech as Federal Gears Grind Slow\">free speech rights<\/a>, plus a pragmatic view of the way forward. For example, he noted that \u201c[t]he more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.\u201d<\/p>\n<p>He also issued a warning that should echo in our minds today:<\/p>\n<blockquote class=\"wp-block-quote is-layout-flow wp-block-quote-is-layout-flow\">\n<p>We must remember that it is a balance that we are striking \u2014 a balance between the freedom to speak, a freedom that is given a preferred place in our hierarchy of values, and the freedom of a private property owner to control his property. When the competing interests are fairly weighed, the balance can only be struck in favor of speech.<\/p>\n<\/blockquote>\n<p>By 1976, <em>Logan Valley<\/em> was dead, with the Supreme Court finally acknowledging its overruling in <a href=\"https:\/\/supreme.justia.com\/cases\/federal\/us\/424\/507\/\"><em>Hudgens v. NLRB<\/em><\/a>. But other judges recognized the importance of <a href=\"https:\/\/www.conservativenewsdaily.net\/breaking-news\/charles-lipson-elon-musks-twitter-files-demand-answers-from-the-government\/\" title=\"Charles Lipson: Elon Musk's \"Twitter Files\" Demand Answers From the Government\">protecting speech rights<\/a> in the places where people congregate. So the state courts picked up the mantle, led by a liberal California Supreme Court that, in the <a href=\"https:\/\/supreme.justia.com\/cases\/federal\/us\/447\/74\/\"><em>Pruneyard<\/em> case<\/a>, found that people have a right under the California Constitution\u2019s free speech clause to engage in speech in a large community shopping center like the Logan Valley mall and Lloyd Center.<\/p>\n<h2 class=\"wp-block-heading\">Private Property and Pro-Speech Cases<\/h2>\n<p>Why does this matter? It matters because when the Ninth Circuit upholds Google\u2019s claimed right to remove Kennedy\u2019s speech from YouTube, as it likely will, it will cite cases like <em>Lloyd Corp.<\/em> and <em>Hudgens <\/em>and talk about the importance of <a href=\"https:\/\/www.conservativenewsdaily.net\/breaking-news\/democrat-sen-tester-canceling-keystone-pipeline-was-a-mistake\/\" title=\"Democrat Sen. Tester: Canceling Keystone pipeline was a mistake\">private property rights<\/a>. It will rely on <em>Halleck v. Manhattan Community Access Corporation<\/em>, a 2019 case in which the Supreme Court \u2014 in a 5-4 vote, with an opinion from Justice Brett Kavanaugh \u2014 held that a private company operating a public access TV station in New York City could remove programming based on its content. It will ignore the dissent written by Sonia Sotomayor (and joined by liberal hero Ruth Bader Ginsburg) in <em>Halleck<\/em>. It will ignore the pro-speech dissents written by Marshall, Brennan, and Douglas in <em>Lloyd Corp.<\/em><\/p>\n<p>In short, it will turn a blind eye to the very principles judges like Gabriel Sanchez claim to stand for.<\/p>\n<p>How sad. I\u2019ve never believed in judicial activism. Judges have a role to play in the legal process. Making law is not it.<\/p>\n<p>But constitutional law is different. Free speech rights are different. Just a few generations ago, women could not vote. Jim Crow laws kept many blacks from voting, too. Now we have a nonwhite female vice president. A black man served two terms as president. Women fill the corridors of power. That progress came about not through warfare but through speech.<\/p>\n<p>But speech doesn\u2019t matter if it can\u2019t be heard. Marshall recognized that. That\u2019s why he viewed the public nature of the Logan Valley and Lloyd Corp. shopping centers as so important. That\u2019s where speech needed to occur to have an effect.<\/p>\n<p>He would have thought the same thing about YouTube.<\/p>\n<p>Let\u2019s see if Sanchez realizes that.<\/p>\n<div class=\"fdrlst__b89e9-e269bf57bcc596cfaefe6a4e1fc76e59 fdrlst__b89e9-after-post-content\" id=\"fdrlst__b89e9-e269bf57bcc596cfaefe6a4e1fc76e59\"><\/div>\n<hr class=\"wp-block-separator\">    \t\t\t\t\t   \t\t\t\t\t\t\t\t\t<\/div>\n<p><\/span><\/p>\n","protected":false},"excerpt":{"rendered":"<p>After college, Ninth Circuit Judge Gabriel Sanchez delved into Argentine presidential politics before entering law school and earning an ACLU award at a large firm. As California Gov. Jerry Brown&#8217;s chief legal advisor, he managed the legal battle revealing prison overcrowding as a violation, showcasing his diverse legal expertise and commitment to justice<\/p>\n","protected":false},"author":1334,"featured_media":2250937,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_mo_disable_npp":"","fifu_image_url":"https:\/\/thefederalist.com\/wp-content\/uploads\/2024\/05\/Screenshot-2024-05-22-at-2.17.40%E2%80%AFPM.png","fifu_image_alt":"","footnotes":""},"categories":[546],"tags":[],"class_list":["post-2250936","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-the-federalist"],"fifu_image_url":"https:\/\/thefederalist.com\/wp-content\/uploads\/2024\/05\/Screenshot-2024-05-22-at-2.17.40%E2%80%AFPM.png","_links":{"self":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts\/2250936","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/users\/1334"}],"replies":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/comments?post=2250936"}],"version-history":[{"count":0,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts\/2250936\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/media\/2250937"}],"wp:attachment":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/media?parent=2250936"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/categories?post=2250936"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/tags?post=2250936"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}