1. a state-supported lucrative fun (functional) place or facility of public accommodation of entertainment and of exhibition as well as
2. a state-supported lucrative useful (functional) place or facility of public accommodation of communication for business or for other uses

because Twitter service is based on common carriage of digital personal literary property.

Here’s a passage from page 2 of Huber v. Biden, 2022 U.S. Dist. LEXIS 48660 (N.D. Cal. March 18, 2022).

https://uploads.disquscdn.com/images/27dfdf853a32b7df0112aa77ab6f0fc800e125bbaf46096ab71d73249abea674.png

Doesn’t it seem somewhat akin to fraud for a state-supported information service common carrier to demand an agreement that permits it to discriminate among customers once the common carrier sees the property that a customer wishes to be conveyed?

Is there not a violation of 42 U.S. Code § 1982 – Property rights of citizens? § 1982 derives from the Reconstruction Period Civil Rights Act. Is it possibly dawning why I allege that

1. the practices of the major social mediums and
2. the caselaw associated with 47 U.S. Code § 230 undoes all US anti-discrimination law and Supreme Court rulings including even Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686 (1954).

Can the reader understand the reason for my inference? I used to be on the MIT faculty. I preferred my students to come to reasoned conclusions and not to depend on me to do their thinking for them.

If Twitter’s ToS is valid, does this ToS not provide a model for interstate common carriers of property or of passengers to escape a common carrier’s higher standard of care?

I consider Trump’s antics a sideshow. We have to look at the big picture.

The major social mediums and § 230 caselaw are undermining the US social and political system.

If the reader has checked out Richard Silverstein’s blog posts that pertain to Yerushalmi, he would find that they imply that the steps needed to reach to this result would not be particularly natural to Yerushalmi.

My DC civil rights lawyer friend and I concluded in 2016 that it was a non-starter to challenge 47 U.S. Code § 230
1. by means of a First Amendment argument or
2. by means of state actor argument.

I assume Yerushalmi referenced the Unruh Civil Rights Act because this act does not include the place-limitation, which is found in the 1964 CRA. I consider the place-limitation to be a non-issue because place is used functionally and structurally in the context of the CRA of 1964. Maybe we will find out whether SCOTUS agrees.

I agree with Judge Chen that Yershalmi’s First Amendment argument was novel. I am not so creative. Throughout my case I have been completely consistent.

1. I have no problem constitutionally whatsoever with § 230.

2. The caselaw of § 230 since Zeran v. America Online, 129 F.3d 327 (4th Cir. 1997) depends on a logical fallacy (denial of the antecedent) and must be excised from the legal system.

3. § 230 caselaw is an obvious potential source of corruption in the political system.

4. § 230 caselaw effectively voids practically all civil rights and common carriage anti-discrimination law.

5. Federal judges (and probably most attorneys) don’t understand what a physicist, a computer scientist, or an engineer (I’m all three) means when he uses the term virtual.

In my reply to Twitter’s Appellee’s Brief, I write the following.
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https://uploads.disquscdn.com/images/5c726f331f23b1be5cafaa6e75c4a3e1abaadd1526cbae4e79537fee7b31697b.png
https://uploads.disquscdn.com/images/22aacb98a32664c1b81accc59430e5fd742f93845d37c57e6d98459a64744343.png
https://uploads.disquscdn.com/images/b8ce42bacbe65488391189b98d42c1866f1c01d1ccc87ef3e0fed02632c42d86.png

Title III of the Act, in section 302(a), provides that “no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation” by the owner, lessee, or operator of such a place. 42 U.S.C. § 12182(a). The core meaning of this provision, plainly enough, is that the owner or operator of a store, hotel, restaurant, dentist’s office, travel agency, theater, Web site, or other facility (whether in physical space or in electronic space, Carparts Distribution Center, Inc. v. Automotive Wholesalers’ Ass’n of New England, Inc., 37 F.3d 12, 19 (1st Cir. 1994)) that is open to the public cannot exclude disabled persons from entering the facility and, once in, from using the facility in the same way that the nondisabled do.

Doe v. Mutual of Omaha Insurance Company, 179 F.3d 557, 558-59 (7th Cir. 1999)

Judge Posner referred to the following.

Neither Title III nor its implementing regulations make any mention of physical boundaries or physical entry. Many goods and services are sold over the telephone or by mail with customers never physically entering the premises of a commercial entity to purchase the goods or services. To exclude this broad category of businesses from the reach of Title III and limit the application of Title III to physical structures which persons must enter to obtain goods and services would run afoul of the purposes of the ADA and would severely frustrate Congress’s intent that individuals with disabilities fully enjoy the goods, services, privileges and advantages, available indiscriminately to other members of the general public.

Carparts Distri. Ctr. v. Automotive Wholesaler’s, 37 F.3d 12, 20 (1st Cir. 1994)

“Electronic space” found no traction with the federal judiciary with respect to Title II.

It would probably be better to understand how the Internet/WWW works, go back to the CRA, and ask how the CRA desegregated a food truck, a food cart, or a drinking fountain.

Hint: according to Title II a food truck or a food cart is a place of public accommodation because functionally it is a place of providing food to the public even though structurally neither is a fast food restaurant like a McDonald’s,
1. which one might enter and
2. where one might dine in on the premises.

[One does not enter a drinking fountain to use it.]

I suppose one might argue that a food truck or a food cart is state supported because such a facility is usually government licensed in order to do business. The Internet is a physical structure or facility like a food truck, a food cart, or drinking fountain.

[It might be worth mentioning that Riley v. California, 573 U.S. 373, 134 S. Ct. 2473, 189 L. Ed. 2d 430, 24 Fla. L. Weekly Supp. 921 (2014) tells us that a cell phone is comparable to a place like a house under the Fourth Amendment.]

If I were Yerushalmi (disgusting thought), I would have argued that Twitter is a common carrier. Then but for 47 U.S. Code § 230(c)(2)(A), Twitter would have no right to deny common carriage. There is some ambiguity: “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.”

Does “otherwise objectionable” have a meaning that can coexist with common carriage obligations?

I suspect that “otherwise objectionable” probably includes defamation, materials in support of human trafficking transactions, inciting insurrection, inciting genocide, or material support to terrorists because denying such common carriage is metaphorically comparable to denial by a trucker of common carriage of explosives or of other hazardous materials.

I doubt common carriage can be denied to anti-Vaxxers for spreading Covid disinformation unless such dissemination is rendered criminal in the US Code.

Otherwise, it seems fairly close to an impermissible discriminatory denial of common carriage to a subset of customers. At present spreading Covid disinformation is not a crime like inciting genocide, giving material support to terrorists, participating in human trafficking, etc.