Sweet victory in Florida
Plus, big changes at the FTC, and thoughts on space law and the failed antitrust suit against Facebook.
Did you know that Chipotle almost added a chocolate milkshake to its menu? Down here in the D.C. area, people know Chipotle for its burritos, bowls, and controversial tacos, but yes — three years ago, the chain’s New York City test kitchen rolled out Mexican chocolate shakes, along with a similarly ill-fated tostada and their much more successful nachos and quesadillas. The rich, cardamom and cinnamon-flavored concoction was set to shake things up at restaurant locations nationwide. But it never ended up making its full debut. Dessert? Abandoned. My heart? Broken.
Luckily, it’s not too hard to whip up a similar shake at home. If you prefer your chocolate dark and piquant, you have a taste for the OG — chocolate drinks are an ancient invention that originated in what’s now Mexico. It was a bitter beverage that people drank to achieve physical and spiritual fulfillment. After the Spanish conquest, European aristocrats turned it into a sweeter treat. A Chipotle-style milkshake offers the best of both worlds, if you add cinnamon and a touch of chili powder to spice up your sweet chocolate ice cream.
Social Media Regulation. Florida’s attempt at a new social media law had a rough week. On Monday, U.S. District Judge Robert Hinkle heard arguments about whether to block enforcement of SB 7072 before it was scheduled to go into effect on July 1. Ari live-tweeted the entire 2.5-hour hearing. Judge Hinkle grilled Florida’s lawyers over the exact arguments we made in our amicus brief, wondering aloud if Florida’s lawyers had ever seen a more poorly-written law. On June 30, Judge Hinkle ruled that SB 7072 is unconstitutional in a blistering 31-page opinion detailing the First Amendment problems with the law. Ari and Corbin both offered immediate analysis on Twitter, and our press release explained why the ruling was correct and what we expect Florida to argue on appeal. Our thoughts were featured in the Washington Times, Communications Daily, and Bloomberg Law.
A few states over, the Supreme Court of Texas made a hash of things, ruling that state civil sex trafficking claims against Facebook were not preempted by Section 230. But as Ari explained, FOSTA-SESTA only permits federal sex trafficking claims, and the Texas court had to engage in some specactularly dubious legal gymnastics to find any ambiguity permitting it to reach a conclusion to the contrary. Ari’s analysis was cited by TechDirt, and he was quoted in the Daily Caller criticizing the absurd ruling.
Late last week, Corbin live-tweeted his thoughts on a Federalist Society event (Limiting the Right to Exclude: Common Carrier and Market Dominance) about the Internet and common carriage. As we’ve discussed before—and will again!—one of the main theories those seeking to regulate online speech put forth is that large social media websites might qualify as “common carriers.” The theory is bunk. See our recent amicus brief for more detail. But the theory is hot among right-wing lawyers and academics all the same—repeatedly attracting FedSoc’s attention.
FTC. On Thursday, the Federal Trade Commission held its first public meeting in decades. With less than a week’s notice, the FTC approved three major changes to how the agency operates on a party-line vote. Our comments explain our concerns. Berin livetweeted the event. In one fell swoop, Lina Khan, the new chairwoman, has unmoored the agency’s competition enforcement from antitrust principles, opened the door to competition rulemakings for essentially the first time, undermined the integrity of the FTC’s resumption of consumer protection rulemakings under Section 5 for the first time in decades, and empowered herself to bypass other commissioners in competition investigations. Constitutional, due process, and oversight concerns abound.
Outer Space Law. Space News published Jim Dunstan’s op-ed regarding a satellite company’s pending application at the FCC for “market access” to the U.S. The company is seeking authority to provide service using a constellation of 243 huge satellites that pose a tremendous orbital collision risk. The problem, as Jim points out, is that this U.S. company, but it but it went overseas to procure a “flag of convenience” license from Papua New Guinea. PNG has no rules about orbital debris, and hasn’t even signed on to the key international treaties that would make it responsible and liable for an on-orbit collisions. Jim argues that the FCC should deny the request and force companies to seek licenses from countries that agree to international space law norms.
Antitrust. On Tuesday, Corbin appeared on the Ross Kaminsky Show (KHOW 630, Denver) to discuss a federal district judge’s decision to toss the FTC’s antitrust lawsuit against Facebook. As Corbin explained, the FTC tripped “at the first hurdle” of any antitrust case: it failed to plead that Facebook possesses market power.
Ross and Corbin had so much fun discussing the FTC’s Facebook faceplant, they decided to talk again the next day. On Wednesday’s show, they covered the lawsuit against Florida’s social media law, the GOP’s misguided “war on Big Tech,” and the constitutional obstacles to regulating speech on the Internet. (Ross’s verdict? “That [segment] was really, really good,” he said to his listeners; “I hope you found that as interesting as I did.”)