U.S. appeals court rejects big tech’s right to regulate online speech

First, the judicial power vested in us by Article III does not include the power to veto statutes. And that omission is no accident: The Founders expressly considered giving judges that power, and they decided not to do so. Several delegates at the Constitutional Convention suggested creating a “Council of Revision” consisting of federal judges and the executive. Jonathan F. Mitchell, The Writ-of-Erasure Fallacy, 104 Va. L. Rev. 933, 954 (2018). They wanted to empower this Council to veto Congress’s legislation, subject to congressional override. Ibid. A veto would render the legislation “void.” Ibid. But despite the best efforts of James Wilson and James Madison, the Convention rejected the proposal—three times over. Id. at 957–59. That means we have no power to “strike down,” “void,” or “invalidate” an entire law. See id. at 936 (explaining that “federal courts have no authority to erase a duly enacted law from the statute books” but have only the power “to decline to enforce a statute in a particular case or controversy” and “to enjoin executive officials from taking steps to enforce a statute”); Borden v. United States, 141 S. Ct. 1817, 1835–36 (2021) (Thomas, J., concurring in the judgment) (noting that “[c]ourts have no authority to strike down statutory text” and that “a facial challenge, if successful, has the same effect as nullifying a statute” (quotations omitted)); Kevin C. Walsh, Partial Unconstitutionality, 85 N.Y.U. L. Rev. 738, 756 (2010) (explaining that the Founders did not conceive of judicial review as the power to “strike down” legislation).

Second, the judicial power vested in us by Article III is limited to deciding certain “Cases” and “Controversies.” U.S. Const. art. III, § 2. A federal court “has no jurisdiction to pronounce any statute, either of a state or of the United States, void, because irreconcilable with the constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies.” Liverpool, N.Y. & Phila. S.S. Co. v. Comm’rs of Emigration, 113 U.S. 33, 39 (1885); accord Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178 (1803). This limitation on federal jurisdiction to “actual controversies” prevents courts from “ancitipat[ing] a question of constitutional law in advance of the necessity of deciding it.” Liverpool, 113 U.S. at 39; see also Broadrick v. Oklahoma, 413 U.S. 601, 610–11 (1973) (“[U]nder our constitutional system courts are not roving commissions assigned to pass judgment on the validity of the Nation’s laws.”). And it makes pre- enforcement facial challenges a particularly nettlesome affair. Such suits usually do not present “flesh-and-blood legal problems with data relevant and adequate to an informed judgment.” New York v. Ferber, 458 U.S. 747, 768 (1982) (quotation omitted). Instead, they require the court “to consider every conceivable situation which might possibly arise in the application of complex and comprehensive legislation,” forcing courts to deploy the severe power of judicial review “with reference to hypothetical cases.” United States v. Raines, 362 U.S. 17, 21–22 (1960).

Third, federalism. Invalidate-the-law-now, discover-how-it-works- later judging is particularly troublesome when reviewing state laws, as it deprives “state courts [of ] the opportunity to construe a law to avoid constitutional infirmities.” Ferber, 458 U.S. at 768. And “facial challenges threaten to short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution.” Wash. State Grange, 552 U.S. at 451. The respect owed to a sovereign State thus demands that we look particularly askance at a litigant who wants unelected federal judges to countermand the State’s democratically accountable policymakers.

[0] https://www.ca5.uscourts.gov/opinions/pub/21/21-51178-CV1.pd... (PDF)

How can a corporation do any of these without natural persons being actually the ones deciding on and performing these actions? Corporation is, after all, just a form of organization of natural persons, and cannot do anything on its own.

In Citizens United, government argued that the government can ban you from publishing a book, unless you’re completely self funding it: if any corporate funds are used in book publishing process (as they typically are with books where authors are paid royalties, it is likely that no books you ever heard about have been completely self-funded). Are you also supporting this position, that government can suppress your speech if any at any point corporate funds are used?