Archive for the ‘First Amendment’ Category

Congress Should Protect Voluntary Affirmative Action in Private Colleges and Universities – Justia Verdict

Next week, the Supreme Court will commence a new Term. The Courts docket provides the conservative super-majority with multiple opportunities to continue to radically remake constitutional law.

For example, in a case from Colorado, the Court will decide whether a website designer has a First Amendment right to take on jobs in support of opposite-sex but not same-sex marriages, despite the states civil rights law barring such discrimination. A case from North Carolina asks the Court to endorse the so-called independent state legislature (ISL) theory, which figured prominently in Donald Trumps scheme to override the 2020 presidential election and could produce similar mischief in upcoming elections. And in another case from North Carolinathis one involving the states flagship universitythe Justices could overrule precedents dating to the 1970s to hold that the Fourteenth Amendments Equal Protection Clause bars all or nearly all race-based affirmative action.

Each of those cases involves constitutional interpretation. It might therefore be thought that there is nothing Congress can do to prevent or mitigate the damage. After all, a constitutional amendment requires passage by two-thirds majorities in each house of Congress and ratification by three quarters of the states. In this view, Mitch McConnells successful blockade of Merrick Garland to steal a Supreme Court seat and the untimely death of Ruth Bader Ginsburg followed by the shameless rush to confirm Amy Coney Barrett combined to bake in the extremely conservative Court we now have.

Yet Congress has tools at its disposal. Most radically, Congress could increase the size of the Court or strip some of its jurisdiction. More modestly but crucially, Congress can combat ISL by exercising its power under Article I, Section 4 to make or alter state laws governing congressional elections and under Article II, Section 1 to determine the time of choosing the electors in a presidential election. And to its great credit, the House of Representatives passed a billH.R. 1that exercises those powers in ways that would substantially strengthen American democracy. To its great discredit, the Senate (mostly due to hesitation by Joe Manchin and Kyrsten Sinema) has not moved forward with H.R. 1.

What about those other cases? There is little Congress can do (short of Court expansion or jurisdiction stripping) to protect federal, state, and local antidiscrimination law against the Courts eagerness to provide exemptions based on speech and religion, so long as those exemptions are ostensibly found in the Constitution. Nor can ordinary legislation stop the Court from perverting the Fourteenth Amendmentadopted during Reconstruction chiefly to empower Congress to enact legislation benefiting formerly enslaved African Americansby turning it into an obstacle to diversity and inclusion.

But if the University of North Carolina and other great state colleges and universities seem doomed to succumb to the SCOTUS conservative supermajoritys hostility to affirmative action, the same fate need not befall private colleges and universities. In addition to hearing the UNC case, the Court will hear a similar challenge to race-based affirmative action in admissions at Harvard College. Congress clearly has the power to affect the outcome of the Harvard case.

Except for the Thirteenth Amendment, the Constitution constrains government and its agents, not private actors. Thus, the Fourteenth Amendments Equal Protection Clause does not impose any limits on Harvard or other private colleges and universities.

Why, then, was Harvard sued? Although the Constitution does not apply to private actors, Title VI of the 1964 Civil Rights Act does. It forbids discrimination on the ground of race, color, or national origin by entities that receive federal funds. Because of the pervasive role of the federal government in funding research and financial aid, Title VI covers nearly every private college and university in the country. And since the Supreme Courts 1978 Bakke ruling, the case law has treated the limits imposed by Title VI as coextensive with those imposed by the Equal Protection Clause on state colleges and universities.

It is conceivable that the Court could change that practice in the Harvard case. After all, if the Court is willing to change course by forbidding nearly all affirmative action, it could surely take the lesser step of changing its view that the statutory and constitutional limits are coextensive. However, that seems extremely unlikely. The text of Title VI is, if anything, easier to read as containing a principle of color-blindness than is the text of the Fourteenth Amendment. Hence, if five or six Justices construe the latter to forbid race-based affirmative action for state colleges and universities, they will almost certainly construe Title VI to have the same impact on private ones.

Yet the story need not end there. In the face of such a rulingor better yet, now, before the Court rulesCongress can amend Title VI to make clear that it does not forbid affirmative action. Doing so would be straightforward. Congress could append the following statement to the existing statute: Consideration of race, color, or national origin for the purpose of achieving the benefits of diversity shall not be deemed to violate this provision. That language would make explicit the standard under which colleges and universities have operated for decades. It would not protect affirmative action programs at state colleges and universities against the stricter standard the Supreme Court will likely adopt in the UNC case, but it would protect Harvard and other private actors.

Note that under my proposed amendment to Title VI, no private college, university, or other recipient of federal funds would be required to practice race-based affirmative action. The amendment would simply clarify that the decision whether to do so rests with the colleges and universities themselves. That fact ought to make the proposal appealing to conservatives who frequently complain about what they consider to be over-regulation. Leaving an important decision about governance to the leadership of private entities enacts a principle of limited government.

Yet one would need to be especially nave to think that any congressional Republicans would support my proposal. Indeed, it is possible that even substantial numbers of Democratic lawmakers would defect.

Unfortunately, race-based affirmative action is sufficiently unpopular that voters have rejected it when it has appeared on the ballot even in blue states. For instance, in 1996, California voters adopted Proposition 209, which drastically curtailed affirmative action at state institutions. They reaffirmed their opposition to affirmative action just two years ago, when they rejected a ballot initiative that would have repealed Prop 209. It is thus difficult to see poll-savvy Democrats in Congress embracing my proposal.

Moreover, to enact my amendment to Title VI, Congress would need either 60 votes in the Senate to overcome a filibuster or for all 50 Democrats (plus Vice President Harris) to change the filibuster rule. (Aficionados of Senate procedure might be wondering whether a mere 50 votes might suffice using the budget reconciliation mechanism; they would not; although Title VI involves federal spending, my proposed amendment does not; thus the parliamentarian would very likely rule it out of order as extraneous matter under the Byrd rule.) There is, alas, no way that even 50, much less 60, Senate votes are forthcoming.

By now readers might be annoyed with me. Why did I propose a bill that I myself acknowledge is politically a non-starter? One answer is that Im a law professor, not a politician. I see my job principally as analyzing the law and sometimes offering suggestions for improving it. If political actors responding to their constituents real or imagined views reject my suggestions, that is their business.

But there is also a practical reason to make impractical suggestions. The window of what is possible shifts over time. For the 49 years between Roe v. Wade and Dobbs v. Jackson Womens Health Org., anti-abortion activists proposed laws that either would not be enacted or, if enacted, would be struck down by the courts. They played a long game, hoping that someday their efforts would bear fruit.

So too for progressives now. With conservatives in power in most states as well as in the U.S. Supreme Court, and facing the very real prospect of losing Congress and, in two more years, the presidency, we can and should make a call for urgent action now. But in doing so, we should also understand that we aim to maintain our lawmaking muscle mass for a day when we have the ability to use it.

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Congress Should Protect Voluntary Affirmative Action in Private Colleges and Universities - Justia Verdict

SUPERVISORS APPROVE VEHICLE MILES TRAVELED: ANDERSON AMENDMENT PUSHES FOR TRANSIT EXPANSION IN EAST COUNTY TO ALLOW MORE HOMEBUILDING – East County…

East County News Service

County News Service contributed to this report

September 28, 2022 (San Diego) San Diego Countys Board of Supervisors today approved Vehicle-Miles-Traveled (VMT) guidelines for new development in unincorporated communities aimed at fighting climate change while still allowing approximately 7,700 homes to be built faster and without expensive traffic studies.

The Boards action to adopt a new Transportation Study Guide brings County policies into sync with the state of Californias VMT law. That law aims to reduce greenhouse gas emissions from cars and fight climate change by asking proposed developments how many miles the people living in them would have to drive on average to reach jobs, amenities or transit.

The Boards vote means housing proposed in unincorporated areas where cars would travel at least 15% fewer miles than the average of all drivers in the entire county including city areas could be built without VMT studies and mitigation. That would reduce the cost and streamline the review and consideration process for infill and vehicle-mile-traveled-efficient development in areas that have higher housing densities and are nearer to roads, jobs and transit.

Projects proposed where drivers would have to drive 16% or more miles than the average regional driver could still be proposed, approved and built. But they would have to pay for VMT studies and potential mitigation. That could make it more expensive for developers to build in the Countys unincorporated areas that are often located farther away from jobs and amenities.

However, County staff calculated the new Transportation Study Guide would allow up to 7,693 homes to be built without study and mitigation within two types of unincorporated areas infill areas and VMT efficient areas.

The VMT efficient areas are places where people would drive 15% or fewer miles than drivers within the region. Infill areas are defined as those with already dense housing development with a minimum of 425 houses and 128 intersections per square mile and within 15 miles of job centers.

One of the intents of the states VMT law was to encourage infill development that would improve public health by encouraging people to walk and bike more and reduce car travel and greenhouse gas emissions.

Anderson amendments adopted to explore transit expansion in East County, along with more wineries

Supervisor Joel Anderson advocated for the County to keep as many opportunities for housing in the unincorporated area as possible as the Board implements state guidelines related to vehicle miles traveled (VMT.)

Anderson first supported Supervisor Desmonds substitute motion, which would have reverted to the VMT metric the previous Board used in 2020 and exempted affordable housing from having to meet VMT requirements. The previous VMT metric kept the housing capacity at 18,000 homes, while the new one considered by the Board today reduced the number of potential homes to about 5,870. This motion failed on a party-line vote, with Anderson and Desmond being the only Supervisors to vote in favor of it.

We are on the path to creating the biggest suburb of San Diegans in Riverside County, Supervisor Joel Anderson shared at Wednesdays Board of Supervisors meeting.

Following the failed vote, Anderson then introduced two amendments that would potentially allow for thousands of more units to be built in the unincorporated communities.

The first amendment directed staff to pursue transit opportunities in the unincorporated areas as part of the next phase of VMT implementation. The State VMT guidelines allow more homes to be built if they are near mass transit. This would therefore allow existing communities, such as Ramona or Alpine, to continue to grow to their planned capacity.

Andersons second amendment directed staff to study the potential to allow for new or expanded wineries in areas such as Ramona, Jamul, and the San Pasqual Valley. The VMT guidance as it stood did not provide enough clarity for these types of important agricultural uses.

Chair Fletcher and Vice Chair Vargas shared Andersons concerns for the unincorporated communities and agreed to accept his amendments.

Supervisor Terra Lawson-Remer praised County staff for creating guidelines that would immediately address the climate crisis, create a path to build more affordable homes and withstand legal challenge.

Weve come up with an approach that simultaneously gets us to more housing and protects our climate for future generations, Lawson-Remer said.

With their vote Wednesday, the Board also directed County staff to work with other agencies to see if more Vehicle Miles Traveled efficient areas could be created in unincorporated communities by bringing mass transit to them.

The final vote adopted the Supervisors amendments along with the recommendations and passed on a vote of 4-1, with Supervisor Desmond voting No.

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SUPERVISORS APPROVE VEHICLE MILES TRAVELED: ANDERSON AMENDMENT PUSHES FOR TRANSIT EXPANSION IN EAST COUNTY TO ALLOW MORE HOMEBUILDING - East County...

‘Afraid of losing their power’: Judge decries GOP leaders who back Trump election claims – POLITICO

The judiciary has to make it clear: It is not patriotism, it is not standing up for America to stand up for one man who knows full well that he lost instead of the Constitution he was trying to subvert, said Jackson, who was appointed by former President Barack Obama.

In addition, Jackson said, Trump and his allies are using rhetoric about the multiple criminal probes connected to Trump that contain dangerous undertones.

Some prominent figures in the Republican Party are cagily predicting or even outright calling for violence in the streets if one of the multiple investigations doesnt go his way, Jackson said.

The judges tough remarks came as she delivered a sentence to Jan. 6 defendant Kyle Young, who pleaded guilty to assaulting D.C. Police Officer Michael Fanone in some of the most brutal violence that occurred during the attack on the Capitol. Jackson sentenced Young to 86 months in prison, one of the stiffest sentences handed down, after describing his enthusiastic participation in the mob violence against Fanone, including by passing a taser to another rioter who used it on Fanones neck. Young, she noted, was accompanied amid the mob by his 16-year-old son.

But her most notable comments were directed not at Young but at Trump and GOP leaders themselves, describing them repeatedly as so beholden to one man that it has become heresy for Republicans to contradict his claims of election fraud.

Shes not the first federal judge to rebuke Trump in the context of Jan. 6 riot prosecutions. Judge Amit Mehta lamented that many of the low-level rioters were duped by powerful figures, including Trump, into marching on the Capitol, only to suffer criminal consequences as a result. Judge Reggie Walton called Trump a charlatan for his conduct related to the election. And a federal judge in California, David Carter, determined that Trumps actions related to Jan. 6 likely amounted to a criminal conspiracy to subvert the election.

But Jacksons comments were the most stinging assessment not only of Trump but those in the upper echelons of elected GOP leadership who have echoed him. She also pushed back at claims by some Trump allies that Jan. 6 defendants had been targeted for political reasons.

You were not prosecuted for being a Trump supporter. You were not arrested or charged and you will not be sentenced for exercising your first amendment rights, she said to Young. You are not a political prisoner You were trying to stop the singular thing that makes America America, the peaceful transfer of power. Thats what Stop the Steal meant.

Jackson is no stranger to high-profile Trump-related matters. She oversaw the trial of longtime Trump confidant Roger Stone, who was charged and convicted of lying to lawmakers investigating Russian interference in the 2016 election. In that trial, she castigated Stone after an ally used his social media account to post an image of her that appeared inside crosshairs.

Jackson also presided over one of the criminal cases against former Trump campaign chairman Paul Manafort, who pleaded guilty to financial crimes but was later accused by prosecutors of lying during his cooperation agreement.

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'Afraid of losing their power': Judge decries GOP leaders who back Trump election claims - POLITICO

BNP Paribas : 5th amendment to the 2021 Universal Registration Document – Marketscreener.com

FIFTH AMENDMENT TO THE

2021 UNIVERSAL REGISTRATION DOCUMENT

FILED WITH THE AMF ON SEPTEMBER 27TH, 2022

Universal Registration Document and annual financial report 2021 filed with the AMF (Autorit des Marchs Financiers) on March 25, 2022 under No. D. 22-0156.

First amendment to Universal Registration Document and annual financial report 2021 filed with the AMF (Autorit des Marchs Financiers) on May 3, 2022 under No. D. 22-0156-A01.

Second amendment to Universal Registration document and annual financial report 2021 filed with the AMF (Autorit des Marchs Financiers) on June 28, 2022 under No. D. 22-0156-A02.

Third amendment to Universal Registration document and annual financial report 2021 filed with the AMF (Autorit des Marchs Financiers) on July 29, 2022 under No. D. 22-0156-A03.

Fourth amendment to Universal Registration document and annual financial report 2021 filed with the AMF (Autorit des Marchs Financiers) on August 4, 2022 under No. D. 22-0156-A04.

This is a translation into English of the Universal Registration Document of the Company issued in French and it is

available on the website of the Issuer

Socit anonyme (Public Limited Company) with capital of 2,468,663,292 euros

Head office: 16 boulevard des Italiens, 75009 PARIS

R.C.S.: PARIS 662 042 449

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Summary

1. APPROVAL BY THE AMF OF THE 3RD, 4TH AND 5TH AMENDMENT OF THE 2021 UNIVERSAL

REGISTRATION DOCUMENT

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2.

GENERAL INFORMATION

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3.

STATUTORY AUDITORS

6

4.

PERSON RESPONSIBLE FOR THE UNIVERSAL REGISTRATION DOCUMENT

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5.

TABLES OF CONCORDANCE

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This fifth amendment to the 2021 Universal Registration Document has been filed with the AMF on 27 September 2022 as competent authority under Regulation (EU) 2017/1129 without prior approval pursuant to Article 9 of Regulation (EU) 2017/1129;

The universal registration document may be used for the purposes of an offer to the public of securities or admission of securities to trading on a regulated market if approved by the AMF together with any amendments, if applicable, and a securities note and summary approved in accordance with Regulation (EU) 2017/1129.

This Universal Registration Document may form part of a prospectus of the Issuer consisting of separate documents within the meaning of the Prospectus Regulation.

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1. APPROVAL BY THE AMF OF THE 3RD, 4TH AND 5th AMENDMENT OF THE 2021 UNIVERSAL REGISTRATION DOCUMENT :

1.1. Approval of the 3rd amendment to the 2021 Universal Registration Document

The 3rd Amendment to the 2021 Universal Registration Document was approved on 27 September 2022 by the AMF as competent authority under Regulation (EU) 2017/1129.

The AMF approves this document after verifying that the information contained in it is complete, consistent and comprehensible. The 3rd Amendment to the 2021 Universal Registration Document has the following approval number: R. 22-035.

Such approval should not be considered as a favourable opinion on the issuer covered by the Universal Registration Document.

The 3rd Amendment to the 2021 Universal Registration Document may be used for the purpose of offering to the public of securities or for the admission of financial securities to trading on a regulated market if it is supplemented by a securities note and, where appropriate, a summary and its amendment(s). In this case, the securities note, the summary and all the amendments made to the universal registration document since its approval are approved separately in accordance with Article 10 (3), 2nd subparagraph of Regulation (EU) 2017/1129.

It is valid until 27 September 2023 and, during that period and at the latest at the same time as the securities note and under the conditions of Articles 10 and 23 of Regulation (EU) 2017/1129, must be completed by an amendment to the Universal Registration Document in the event of significant new developments or material errors or inaccuracies.

1.2. Approval of the 4th amendment to the 2021 Universal Registration Document:

The 4th Amendment to the 2021 Universal Registration Document was approved on 27 September 2022 by the AMF as competent authority under Regulation (EU) 2017/1129.

The AMF approves this document after verifying that the information contained in it is complete, consistent and comprehensible. The 4th Amendment to the 2021 Universal Registration Document has the following approval number: R. 22-035.

Such approval should not be considered as a favourable opinion on the issuer covered by the Universal Registration Document.

The 4th Amendment to the 2021 Universal Registration Document may be used for the purpose of offering to the public of securities or for the admission of financial securities to trading on a regulated market if it is supplemented by a securities note and, where appropriate, a summary and its amendment(s). In this case, the securities note, the summary and all the amendments made to the universal registration document since its approval are approved separately in accordance with Article 10 (3), 2nd subparagraph of Regulation (EU) 2017/1129.

It is valid until 27 September 2023 and, during that period and at the latest at the same time as the securities note and under the conditions of Articles 10 and 23 of Regulation (EU) 2017/1129, must be completed by an amendment to the Universal Registration Document in the event of significant new developments or material errors or inaccuracies.

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1.3. Approval of the 5th amendment to the 2021 Universal Registration Document:

The 5th Amendment to the 2021 Universal Registration Document was approved on 27 September 2022 by the AMF as competent authority under Regulation (EU) 2017/1129.

The AMF approves this document after verifying that the information contained in it is complete, consistent and comprehensible. The 5th Amendment to the 2021 Universal Registration Document has the following approval number: R. 22-035.

Such approval should not be considered as a favourable opinion on the issuer covered by the Universal Registration Document.

The 5th Amendment to the 2021 Universal Registration Document may be used for the purpose of offering to the public of securities or for the admission of financial securities to trading on a regulated market if it is supplemented by a securities note and, where appropriate, a summary and its amendment(s). In this case, the securities note, the summary and all the amendments made to the universal registration document since its approval are approved separately in accordance with Article 10 (3), 2nd subparagraph of Regulation (EU) 2017/1129.

It is valid until 27 September 2023 and, during that period and at the latest at the same time as the securities note and under the conditions of Articles 10 and 23 of Regulation (EU) 2017/1129, must be completed by an amendment to the Universal Registration Document in the event of significant new developments or material errors or inaccuracies.

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2. GENERAL INFORMATION

2.1 Documents on display

This document is available on the website http://www.invest.bnpparibas.com and the Autorit des Marchs Financiers (AMF) website, http://www.amf-france.org.

Any person wishing to receive additional information about BNP Paribas Group can request documents, without commitment, as follows:

2.2 Significant changes

Save as disclosed in this Amendment to the 2021 Universal Registration Document, there have been no significant adverse change in the Group's financial situation or financial performance since 30 June 2022, no material adverse change in the prospects of the Group since 4 August 2022.

To the best of the BNP Paribas' knowledge, there have not been any recent events which are to a material extent

relevant to the evaluation of BNP Paribas' solvency since 30 June 2022.

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This is an excerpt of the original content. To continue reading it, access the original document here.

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BNP Paribas : 5th amendment to the 2021 Universal Registration Document - Marketscreener.com

Fifth Circuit Rejects First Amendment Challenge to Texas Social Media Common Carrier Law – Reason

Just released, Netchoice v. Paxton; I'm traveling and likely won't have time to digest the 113 pages of opinions for a while, but here's the opening from Judge Andrew Oldham's opinion, which is a majority on most points:

A Texas statute named House Bill 20 generally prohibits large social media platforms from censoring speech based on the viewpoint of its speaker. The platforms urge us to hold that the statute is facially unconstitutional and hence cannot be applied to anyone at any time and under any circumstances.

In urging such sweeping relief, the platforms offer a rather odd inversion of the First Amendment. That Amendment, of course, protects every person's right to "the freedom of speech." But the platforms argue that buried somewhere in the person's enumerated right to free speech lies a corporation's unenumerated right to muzzle speech.

The implications of the platforms' argument are staggering. On the platforms' view, email providers, mobile phone companies, and banks could cancel the accounts of anyone who sends an email, makes a phone call, or spends money in support of a disfavored political party, candidate, or business. What's worse, the platforms argue that a business can acquire a dominant market position by holding itself out as open to everyoneas Twitter did in championing itself as "the free speech wing of the free speech party." Then, having cemented itself as the monopolist of "the modern public square," Packingham v. North Carolina(2017), Twitter unapologetically argues that it could turn around and ban all pro-LGBT speech for no other reason than its employees want to pick on members of that community, Oral Arg. at 22:3922:52.

Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say. Because the district court held otherwise, we reverse its injunction and remand for further proceedings.

Judge Edith Jones joined this in large part; an excerpt:

Functioning as conduits for both makers and recipients of speech, the platforms' businesses are closer analytically to the holdings of the Supreme Court in PruneYard and FAIR than to Miami Herald, Pacific Gas & Electric, and Hurley. It follows from the first two cases that in arbitrarily excluding from their platforms the makers of speech and preventing disfavored speech from reaching potential audiences ("censoring," in the comprehensive statutory term), they are not themselves "speaking" for First Amendment purposes.

Another way to look at this case, however, is through the Turner I decision, in which the Supreme Court held that cable TV companies are to some extent engaged in First Amendment-covered "speech" when, as they "operate" their systems, they determine which cable channels to host. Using intermediate scrutiny, the Court did not reject federal must-carry regulations requiring hosting of certain preferred channels. Instead, the Court distinguished both Pacific Gas & Electric and Miami Herald for three reasons. First, the must-carry regulations were content neutral. Second, they did not force cable operators to modify their own speech, nor were viewers likely to associate the mandatory hosted speech with that of the operators. And third, a cable operator's selection of channels controlled the flow of information into subscribers' households, and could "thus silence the voice of competing speakers with the mere flick of a switch." I find all of these points compellingly applicable to analyzing the regulations imposed on large social media platforms by the Texas statute before us.

Judge Leslie Southwick largely dissented; again, a short excerpt:

Yes, almost none of what others place on the Platforms is subject to any action by the companies that own them. The First Amendment, though, is what protects the curating, moderating, or whatever else we call the Platforms' interaction with what others are trying to say. We are in a new arena, a very extensive one, for speakers and for those who would moderate their speech. None of the precedents fit seamlessly. The majority appears assured of their approach; I am hesitant. The closest match I see is caselaw establishing the right of newspapers to control what they do and do not print, and that is the law that guides me until the Supreme Court gives us more.

When the Platforms curate their users' feeds, which are the behaviors prohibited in Section 7 of HB 20, they are exercising their editorial discretion. That is a type of First Amendment-protected activity recognized in Miami Herald, PG&E, Turner, and Hurley. [T]here may be more than one type of First Amendment activity occurring by the same speaker when, for instance, an article is selected and printed in a newspaperor, in our context, a tweet posted or video listed. First Amendment protections attend the publishing process as well as the actual published content.

For my thoughts on this general subject, seeTreating Social Media Platforms Like Common Carriers?

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Fifth Circuit Rejects First Amendment Challenge to Texas Social Media Common Carrier Law - Reason