Parler

Mon Jan 11 03:52:22 UTC 2021

On Sun, Jan 10, 2021 at 6:58 PM Matthew Petach <mpetach at netflight.com> wrote:
> Private businesses can engage in prior restraint all they want.

Hi Matt,

You've conflated a couple ideas here. Public accommodation laws were
passed in the wake of Jim Crow to the effect that any business which
provides services to the public must provide services to all the
public. Courts have found such laws constitutional. Not to mention the
plethora of common-law precedent in this area. You can set rules and
enforce them but those rules can't arbitrarily exclude whole classes
of people nor may they be applied capriciously.

Businesses which post the sign that starts, "we reserve the right,"
are quite mistaken. If a customer is rejected and removed without good
cause and thereby injured, a business can find itself on the losing
end of a lawsuit.

"No shirt, no shoes, no service," on the other hand, is entirely
enforceable so long as that enforcement is consistent.

The legal term "prior restraint" is even more narrowly focused. It
refers only to blocking publication on the grounds that the material
to be published is false or otherwise harmful. The government is
almost never allowed to do so. Instead, remedies are available only
after the material is published.

With private organizations it gets much more complicated. No
organization is compelled to publish anything. But then section 230 of
the DMCA comes in and says: if you exercise editorial control over
what's published then you are liable for any unlawful material which
is published. More precisely, common law precedent says you're liable
for what you publish. Section 230 grants immunity to organizations who
_do not_ exercise editorial control. But what is editorial control?
The courts have been all over the place on that one.

Regards,
Bill Herrin

Regards,
Bill Herrin

--
Hire me! https://bill.herrin.us/resume/