This take is either just wrong or so lacking in nuance that it is unhelpful.lavarman84 wrote: ↑Sat Oct 07, 2023 7:11 pmIf that's what a conservative applicant wants, he's certainly (one of) their guy(s). But the idea that he's brilliant or writing these incredible opinions when he forces a Republican W in a case they should lose is not a serious claim. Comparing his NetChoice opinion to Judge Newsom's amply demonstrates how poorly he measures up to a conservative judge who is actually brilliant and fairly principled.Anonymous User wrote: ↑Sat Oct 07, 2023 9:11 amNobody who praises Oldham can complain about judges being “results-oriented” ever again. On the wide spectrum of the Fed Soc world he stands out as an outlier for regularly writing batshit opinions.
It seems to me that those who dismiss Oldham's Netchoice opinion out of hand as hackery are giving him short shrift. Newsom and Oldham both agree that the issue presented is a novel issue. They both also agree that there are only a few prior SCOTUS cases that are analogous and thus relevant to the determination of the case, and that their holdings are definitely not all aligned in the same way when it comes to resolving the issue of social media platform moderation:
- Miami Herald v. Tornillo (1974): newspaper has the right to criticize someone without being forced to print a response
- Pruneyard v. Robins (1980): a shopping mall cannot exclude peaceful protesters from their property
- PG&E v. Public Utilities Comm'n (1986): utility sending monthly newsletter to customers along with their bill cannot be forced to include ratepayers' messages
- Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995): parade organizers cannot be forced to include groups with which they disagree
- Rumsfeld v. FAIR (2006): law schools could not refuse to allow military recruiters to come and give recruiting pitches to students on campus, even if the school disagreed with Don't Ask Don't Tell policy
As is perhaps obvious, Miami Herald, PG&E, and Hurley all look like favorable precedent for the platforms, and Newsom points to these in his opinion. But Pruneyard and Rumsfeld present a case for the governments hoping to regulate the platforms, which Oldham points to in his opinion. From where I sit, saying that either one of those positions is hackery is, well, hackery. The precedent is mixed. It isn't clear whether moderating speech is speech in this case; Miami Herald doesn't involve content moderation at all (it's a compelled speech case), PG&E and Hurley all hold that a group excluding speech is itself speech, and Pruneyard and Rumsfeld both go the other way.
This is leaving aside the common carrier analysis which Oldham argues in the alternative in his opinion. Newsom doesn't address the argument at all. It's an interesting position that mirrors and expands Justice Thomas's arguments in Biden v. First Amendment Institute (2021). May be right, may be wrong, but certainly doesn't go against precedent since the Court hasn't really ruled on this theory.
All this to say, those who hate Oldham's opinion are welcome to hate it, but to say it isn't at least a defensible position is to pretend that our First Amendment jurisprudence is much clearer than it is when it comes to platform content moderation. The issue is thorny, and two conservatives came out different ways on it, each for precedent-based reasons. Same as it ever was.