Techdirt Daily Newsletter for Monday, 13 January, 2025

Well, I’ll give the Ninth Circuit this much: at least when the court is wrong, it is wrong fast. It was just a few weeks back that we discussed Molson Coors’ appeal for both the rulings and damages over its trademark fight with Stone Brewing. For those not familiar with the history here, here’s a quick and admittedly detail-light summary. Molson Coors has the Keystone brand of beer as one of its properties. In 2017, it rebranded that beer, de-emphasizing the “Key” and putting more emphasis on the “Stone” part of the brand. This followed several years of Molson Coors advertising the brand by also emphasizing the “stone” portion, though not on its packaging. This included campaigns for “hold my stones” and other advertising, to which Stone Brewing sent cease and desist notices in 2010. After the 2017 rebrand, Stone Brewing sued for trademark infringement and won, with a jury awarding it $56 million in damages for loss of past profits, loss of future profits, and for the corrective advertising Stone Brewing insisted it would need to set the public’s mind right on all of this.

The appeal cited all kinds of issues with the ruling. There is the laches defense, with Molson Coors arguing that Stone Brewing missed its window for suing when it took no action after its 2010 cease and desist notice was ignored. It also appealed several evidentiary decisions made by the lower court in the case that Molson Coors claims were unfair in the proceedings. That one, I believe, is the lawyers throwing spaghetti at the wall to see what sticks. And, finally, it appealed the jury awards on several grounds.

Based on some of the questions and comments from the judges on the appeal, I had already suspected that Molson Coors was unlikely to get everything it wanted out of this appeal. But I have to admit that even I am surprised that the Ninth Circuit sided 100% with Stone Brewing and affirmed the ruling and damages entirely.

Molson Coors went on to appeal the 2022 verdict, attempting to claw back the jury award. That appeal was argued in November before the U.S. District Court of Appeals for the 9th Circuit in San Jose. A three-judge panel ultimately upheld the verdict and jury award. San Francisco Law firm BraunHagey & Borden, which argued the case for Stone, claims it is one of the biggest trademark verdicts in history.

Stone, a Southern California craft beer pioneer, was originally awarded $56 million in general damages from Molson Coors, which owns beer brand Keystone Light, at trial in San Diego in 2022; it must now also pay interest.

I’m going to put the evidentiary ruling questions off to the side on this, because I find them far less compelling and, frankly, not terribly interesting. On the question of laches, you can read the court’s logic below.

The laches clock began running in 2017 when Molson Coors launched its “Own the Stone” marketing campaign. See Evergreen Safety Council v. RSA Network Inc., 697 F.3d 1221, 1226 (9th Cir. 2012) (The laches clock begins when the plaintiff “knew (or should have known) of the allegedly infringing conduct.”). Pre-2017 usage is not the basis for any part of Stone Brewing’s claims. See Jarrow Formulas, Inc. v. Nutrition Now, Inc., 304 F.3d 829, 837 (9th Cir. 2002) (holding that laches is “triggered if any part of the claimed wrongful conduct occurred beyond the limitations period”). Rather, all of Stone Brewing’s claims relate to the 2017 “Own the Stone” campaign. Pre-2017, Molson Coors never referred to Keystone as “anything other than Keystone in packaging[,] marketing[,] or advertising materials,” never broke up the product name “Keystone,” and used the term “Stones” just to refer to the number of beers in the case (“30 stones”) or, in the plural sense, as a catch phrase (for example, “Hold my Stones”). Stone Brewing brought this suit within the four-year statute of limitations.

Follow? Laches doesn’t work as a defense because Stone Brewing’s suit only talks about the specific 2017 marketing/branding campaign, not any of the previous uses by Molson Coors. Except all of this is over very similar claims. The start date of a specific campaign in 2017 doesn’t, in any way, change that the suit is over the same or similar supposedly infringing activity between the same brands. The court’s logic on this makes some sense, to be fair. But it’s also, in some ways, allowing Stone Brewing to call its shot in a way that seems designed almost specifically to circumvent the laches defense. Put another way, if Molson Coors thought it was in the clear due to the inaction of the previous C&D Stone sent it, you can certainly understand why this end around for laches would have come as somewhat of a surprise.

As for the damages awarded, the court falls back on the standard that jury awards are “entitled to great deference” absent any absolutely ridiculous awards “not supported by evidence or only based on speculation or guesswork.” Notably, the request from Stone Brewing specified damages in specific amounts for concrete categories, while the jury award was free from all of that specificity.

Stone Brewing sought damages in three categories: $32.7 million for past lost profits, $141.4 million for future lost profits, and $41.8 million for corrective advertising. The jury returned a verdict for Stone Brewing of $56 million in general damages—roughly one quarter of requested damages—without indicating what portion of the award came from which category.

So how did the jury come to that number as a general award? Well, all I can do is guess and speculate, see, since none of that is detailed out here. Which sure seems to indicate that at least perhaps the jury based its award on speculation and guesswork, particularly when you consider that the largest part of the damages requested by Stone Brewing was for “future profits”. I can’t think of an area in which a jury would have to speculate to come to a number more than in the arena of unrealized profits for a company that maybe would have occurred in the future sans infringement.

There were some other, more minor appeals of the damages awarded, but those were also declined by the court.

And so it would seem that Stone Brewing, itself a large corporation, will get its $56 million, plus interest now, for supposed trademark infringement. All while I maintain that even a drunken moron in a hurry couldn’t possibly mistake Stone Brewing’s craft beers and Keystone.

Last April, Florida governor Ron DeSantis signed a law designed specifically to make it easier for cops to arrest people who film them. While it’s generally accepted (without Supreme Court precedent… for some weird reason) by most courts that recording public employees in public while they perform their public duties is protected by the First Amendment, this law says the First Amendment simply doesn’t apply within approximately 25 feet of any cop who doesn’t wanted to be filmed.

“I don’t think there’s anyone that can match what we’ve done to protect the citizens of this state, but particularly to ensure that we respect and protect the men and women who wear the uniform,” DeSantis said at the bill signing event in St. Augustine, surrounded by uniformed officers and standing behind a lectern sign that said, “Supporting Law Enforcement.”

One bill (SB 184) creates a 25-foot “no-go” zone around first responders, including police. The other (HB 601) would limit what citizen police oversight boards can do, including investigating complaints of officer misconduct, and would require these panels to be re-established under county sheriffs and municipal police chiefs, who would appoint the members.

To make it appear this isn’t just a favor to cops, the legislation says the no-go zone applies to all “first responders,” although we have yet to hear any fire department personnel or EMS responders complain about being filmed while performing their duties.

The law went into effect on January 1st of this year, but we already saw it invoked last year during some questionable police response during a traffic stop of Miami Dolphins wide receiver Tyreek Hill. While some officers were pushing Hill’s face into the pavement for being less than compliant during the stop, other officers were yelling at people operating cell phone cameras to move away from the scene.

The newly enacted law creates the threat of jail time for people who are just trying to document police activity. Here’s Firehouse (a site that provides information targeting non-cop “first responders”) reposting Miami Herald reporting that explains what the law says and what it means for those who might intrude on the subjective 25-foot halo created by this legislation:

Under the “Halo Law,” if you fail to comply with the request to move back and are perceived to be harassing or impeding first responders, you could face a second-degree misdemeanor charge.

The charge could include jail time of up to 60 days. You could also be fined $500.

“Harass,” as defined by the new law, is to “willfully engage in a course of conduct directed at a first responder which intentionally causes substantial emotional distress in that first responder and serves no legitimate purpose.”

It’s nice that the last sentence includes an “and.” With an “or,” literally anyone any cop didn’t want hanging around the scene could be portrayed as (subjectively) “harassing.” With the “and,” a little more must be shown to indicate intent, although “no legitimate purpose” determinations are still in the eye of the beholder until a court takes a look at whatever evidence remains following a cop-ordered shut down of a citizen’s camera.

One of the worst people in Florida law enforcement was one of the first to applaud the law’s enactment:

“You can video law enforcement officers, that’s your constitutional right,” Polk County Sheriff Grady Judd, an advocate of the new law, said in an NBC6 report. “But you’ve got to stay out of their way while they’re doing their jobs.”

That might mean something if people who have been arrested for filming cops were actually getting in the way of officers “doing their jobs.” But almost every arrest witnessed to date involves a cop wandering away from the scene to harass citizens armed with cameras. After interfering with their right to film, cops take phones, manhandle people exercising their rights, and invoke laws that were definitely not written with the intent of protecting law enforcement officers from public accountability.

It’s worth noting that both the supporters and the opponents of the law have never invoked other first responders when discussing the law. That’s because — despite the wording — it’s not about protecting all first responders from this alleged “harassment.” It’s only there to protect law enforcement officers, because they’re the only ones complaining about the public’s recently innate ability to document their actions. This is a favor to cops.

Real first responders — those who show up with a desire to help people — don’t need to be “saved” from the public by BS legislation. Only cops who don’t like their narratives being undercut want “protection” from the public’s ability to undermine their claims. Those writing the law know this and so does the governor of the state, who knows it takes the support of the powerful to remain employed as the Chief Petty Tyrant of America’s penis.

Senator Richard Blumenthal is at it again. The long-time Connecticut Senator, who never met an internet regulation he didn’t like, is eager to reintroduce his Kids Online Safety Act (KOSA) — a bill that would trample all over the First Amendment in a misguided attempt to “protect the children.”

As we’ve explained countless times, KOSA is a dangerous and unconstitutional bill that would force online platforms to censor a wide swath of speech. But Blumenthal doesn’t seem to care. He’s more interested in grabbing headlines than crafting thoughtful policy.

Indeed, he’s so eager to bring back KOSA he admits that the point of the bill is to suppress content he dislikes.

The 119th Congress is underway, and U.S. Sen. Richard Blumenthal said one of his priorities is passing legislation to protect kids on social media.

He said he plans to reintroduce his Kids Online Safety Act legislation this session.

[….]

Supporters of the bill, including Blumenthal, have denied that it threatens the First Amendment.

“The dangers of social media are no less now than they were in the last session, and we need to pass the Kids Online Safety Act to give parents tools and young people control so that addictive, destructive content on bullying, eating disorders, and self-harm can be stopped,” Blumenthal told reporters at an unrelated event on Thursday

I mean, I guess it’s a choice for Blumenthal to first claim there are no First Amendment concerns and then straight up admit that he thinks KOSA can be used to “stop… destructive content.”

So he admits it’s a censorship bill.

We’ve spent years now explaining the problems with KOSA, including the fact that his co-author on the bill had admitted that she believes KOSA will be useful in silencing LGBTQ+ content that she believes is dangerous. And here, Blumenthal is admitting that, yes, of course the bill is designed to “stop” content that he finds “destructive” without realizing that what other people (including the bill’s co-author) find “destructive” is things like “trans people exist.”

Does Blumenthal not realize that censoring content in response to regulation is (1) a violation of the First Amendment he swore to uphold and protect, and (2) doesn’t stop the actual harms he’s complaining about?

The bill is inherently problematic. As Senator Rand Paul pointed out, censoring the internet doesn’t protect kids. Indeed, it doesn’t help prepare them for the modern world at all.

At best, the bill will simply lead companies to block all kinds of valuable speech to avoid having to fight about it in court. It would inevitably lead to overly cautious censorship in an attempt to avoid liability, doing real harm to free speech (including important speech around LGBTQ issues, health issues, and more).

Blumenthal, of course, doesn’t care. He did the same thing with FOSTA, and despite overwhelming evidence (as many of us warned!) that bill has resulted in real human suffering and made law enforcement’s job harder, Blumenthal still shamelessly insists that bill was a success.

Because that’s Blumenthal’s default posture. But the truth is clear. And it goes against Blumenthal.

Blumenthal cares not for good policy. He cares only about policy that makes him look good in the headlines. These are often not the same thing.

We’ll see what the bill says when it eventually gets reintroduced, but it is noteworthy that House Republicans were concerned enough about how it could be used for censorship that they refused to move it in the last Congress.

Having lost twice in a row, a handful of Missouri state clerks will now be using taxpayers’ money to pay a former government employee who had the temerity to recommend a mask mandate during the height of the COVID pandemic. (via Short Circuit)

The plaintiff, Tad Mayfield, had been a well-regarded staffer, serving as a legislative specialist while working in the assistant clerk’s office of the state House of Representatives. It was a job he had held for more than seven years before the clerk’s office fired him for daring to (respectfully) ask questions about preventative measures (or, rather, lack thereof) he felt were essential as the spread of COVID continued around the nation.

Every member of the House legislative staff was ordered to work from home in March 2020 as the first wave of infections flooded across the nation. Less than four months later, the governor of Missouri was already trying to institute some sort of “return to work” mandate — one that was accompanied by almost nothing in terms of efforts to limit contagion.

In early August, Tad Mayfield — one of the people being told to return to the office — wrote a very respectful letter raising his concerns about putting people back in close proximity while the outbreak was still far from under control. The entire letter is reproduced in the Eight Circuit Appeals Court decision [PDF], but this should give you a pretty good idea of its tone, as well as what Mayfield was requesting.

It is important to consider, Members from every district in this state are convening in our chambers and then returning to their respective communities to continue campaigning and holding fundraisers for their reelection bids, or assisting in the election of their successors. It compounds an already serious health crisis for Members to unknowingly contract or transmit COVID-19, due to the lack of a mask mandate in our Capitol, and then return home to unknowingly transmit it to their constituents. All this while hundreds if not thousands of new cases are reported in our state every day.

For the health and well-being of all who enter our Capitol, I am requesting that you, as leadership in the House and Senate, adhere to CDC guidelines and implement a mandatory face mask policy for all spaces within our Capitol, excluding the personal office spaces of Members.

None of what’s stated here can be argued. In August 2020, the state was averaging between 1,200-1,400 new cases a day. Mask mandates had been shown to limit infection. And, most undeniably, Missouri governor Mike Parsons was opposed to mask mandates in general.

Three days after his letter was sent, Mayfield was fired by the clerk’s office, supposedly due to performance issues that had somehow failed to present themselves during his previous seven years of employment.

The lower court denied immunity to the government officials and the case proceeded to trial. The jury found in favor of Mayfield and awarded him $15,000 in punitive damages on top of another $15,000 in lost wages.

The letter undeniably dealt with “issues of public concern,” the sort of thing that receives plenty of deference when it comes to First Amendment litigation. The officials tried to argue that it wasn’t Mayfield speaking up about public concerns, but rather using “public concern” as “window dressing” to disguise his reluctance to comply to a return-to-office mandate from the clerks’ office.

The Eighth Circuit says Mayfield’s personal differences with the return-to-office mandate (which were expressed privately to his immediate supervisors) have no bearing on this open letter sent to legislators, which is undeniably protected speech.

The August 3 email’s form and context do not change the result here. Mayfield sent a formal email from his work address to his elected representatives, and he sent it in the context of the COVID-19 pandemic, at a time when many staff and elected representatives were planning to convene at the state capitol. The fact that Mayfield previously shared his private concerns about COVID-19 with his superiors and human resources representative does not change the nature of the August 3 email: a public employee’s request for individual accommodation does not waive that employee’s right to later speak about a related “subject of general interest and of value and concern to the public.” See Lane, 573 U.S. at 241 (internal quotations omitted). And Defendants cite no authority indicating such a limitation exists.

There’s no “how dare you go over my head” exception the First Amendment, which is what this argument really is, even if the defendants took as much care as possible to present it as a disingenuous by a rogue employee they decided to fire because they didn’t like the things he was saying.

The sued officials also tried to claim the email sent by Mayfield had the potential to have a “substantial negative impact on the [state] House [of Representatives]” — something that would have justified the ensuing firing of the staffer. That argument is a non-starter, the Appeals Court points out, because these same officials repeatedly claimed this email played no part in their decision to fire Mayfield. You can’t have it both ways, says the Eighth, affirming the lower court’s denial of the officials’ motion to dismiss.

There’s no qualified immunity to be had, either. The law was clearly established by the time the officials decided to fire Mayfield in retaliation for his mask mandate letter.

Defendants argue that for a right to be clearly established, a plaintiff must cite cases where the speech was on the same topic (here, public health and safety), and the speech must have been made by a particular kind of employee (nonpartisan), within a particular type of government body (deliberative), and to a particular colleague (partisan leadership). But we do not require such “a case directly on point.” al-Kidd, 563 U.S. at 741; see also Hope v. Pelzer, 536 U.S. 730, 741 (2002) (“[G]eneral statements of the law are not inherently incapable of giving fair and clear warning, and . . . a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though ‘the very action in question has [not] previously been held unlawful.’” (second alteration in original) (quoting Creighton, 483 U.S. at 640)). Defendants had fair notice that terminating Mayfield for criticizing the decisions of public officials violated the First Amendment.

That’s how the government likes to read the qualified immunity doctrine. And many courts tend to agree with that interpretation. But not here — not in these two consecutive courts that have arrived at the same conclusion. The First Amendment tends to fare better than the Fourth in cases like these, but even here, it’s undeniable it’s a violation of rights to fire someone for saying something other government employees disagree with.

The officials liable for damages are playing with house money so there’s no reason to believe they won’t appeal this to the Supreme Court. But considering how few decisions the nation’s top court can be bothered to hand down these days, it would likely be another waste of time and money, even if some justices would definitely like to take a swing at creating a First Amendment exception that excludes speech they personally disagree with.

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On Monday, Taylor Lorenz posted a telling story about how Meta has been suppressing access to LGBTQ content across its platforms, labeling it as “sensitive content” or “sexually explicit.”

Posts with LGBTQ+ hashtags including #lesbian, #bisexual, #gay, #trans, #queer, #nonbinary, #pansexial, #transwomen, #Tgirl, #Tboy, #Tgirlsarebeautiful, #bisexualpride, #lesbianpride, and dozens of others were hidden for any users who had their sensitive content filter turned on. Teenagers have the sensitive content filter turned on by default.

When teen users attempted to search LGBTQ terms they were shown a blank page and a prompt from Meta to review the platform’s “sensitive content” restrictions, which discuss why the app hides “sexually explicit” content.

This is notable because, despite the moral panic around “kids and social media,” even the most ardent critics usually (reluctantly) admit social media has been incredibly useful for LGBTQ youth seeking information and community, often benefiting their health and wellbeing.

I had started to write up this article about that, planning to focus on two points. First, contrary to the popular (but false) belief that content moderation targets traditionally “conservative” speech, it very often targets traditionally “progressive” speech. We see these stories all the time, but the MAGA world either doesn’t know or doesn’t care.

Second, this seemed like a pretty strong reminder of how LGBTQ content will be on the chopping block if KOSA becomes law. Indeed, the very existence of the “sensitive content” restrictions on Meta’s platforms (including Facebook, Instagram, and Threads) was actually the company trying to comply-in-advance with KOSA, forcing all teenagers to have the “sensitive content filter” on by default.

In other words, Meta effectively revealed that, yes, of course the easiest way to abide by KOSA’s restrictions will be to restrict access to any pro-LGBTQ content.

In response to Lorenz’s story, Meta said (as it always does when one of these kinds of stories pops up) that it was “a mistake” and promised to correct it. But, as Lorenz notes, the suppression happened for quite some time, and users who tried to raise the alarm found their own posts hidden.

Some LGBTQ teenagers and content creators attempted to sound the alarm about the issue, but their posts failed to get traction. For years, LGBTQ creators on Instagram have suffered shadow bans and had their content labeled as “non-recommendable.” The restrictions on searches, however, are more recent, coming into effect in the past few months. Meta said it was investigating to find out when the error began.

“A responsible and inclusive company would not build an algorithm that classifies some LGBTQ hashtags as ‘sensitive content,’ hiding helpful and age-appropriate content from young people by default,” a spokesperson for GLAAD said. “Regardless of if this was an unintended error, Meta should… test significant product updates before launch.”

Of course, just as I was initially working on this post on Tuesday, Mark Zuckerberg dropped his whole “hey we’re kissing up to Trump by cutting back on how much we moderate” thing, which certainly changed the way I was looking at this particular story.

While I wrote more about that announcement yesterday, I didn’t cover the specific changes to the policies, as those weren’t made as clear in the initial announcement, which was more about the philosophy behind the policy changes. Kate Knibbs, at Wired, had the scoop on the specific changes within the policies, which makes it clear that Meta’s new view of “non-biased” moderation is basically “hateful people are now welcome.”

In a notable shift, the company now says it allows “allegations of mental illness or abnormality when based on gender or sexual orientation, given political and religious discourse about transgenderism and homosexuality and common non-serious usage of words like ‘weird.’”

In other words, Meta now appears to permit users to accuse transgender or gay people of being mentally ill because of their gender expression and sexual orientation. The company did not respond to requests for clarification on the policy.

Again, Meta is absolutely free to do what it wants with its policies. That’s part of its own free speech rights. And, yesterday, I explained why some of the underlying reasons for the policy changes made sense, but here they’re not just saying “hey, we’re going to be less aggressive in pulling down content,” they’re explicitly signaling “hate has a home here!”

I mean, what the fuck is this?

We do allow allegations of mental illness or abnormality when based on gender or sexual orientation, given political and religious discourse about transgenderism and homosexuality and common non-serious usage of words like “weird.”

That’s in a section saying users are not allowed to post about others’ “mental characteristics” including mental illness, but then they create that new exception to that policy.

If it wasn’t already clear that Meta’s new policies are deliberately bending over backwards to write in exceptions for MAGA culture war favorites, just take a look at the other changes Wired highlighted:

• Removing language prohibiting content targeting people based on the basis of their “protected characteristics,” which include race, ethnicity, and gender identity, when they are combined with “claims that they have or spread the coronavirus.” Without this provision, it may now be within bounds to accuse, for example, Chinese people of bearing responsibility for the Covid-19 pandemic.
• A new addition appears to carve out room for people who want to post about how, for example, women shouldn’t be allowed to serve in the military or men shouldn’t be allowed to teach math because of their gender. Meta now permits content that argues for “gender-based limitations of military, law enforcement, and teaching jobs. We also allow the same content based on sexual orientation, when the content is based on religious beliefs.”
• Another update elaborates on what Meta permits in conversations about social exclusion. It now states that “people sometimes use sex- or gender-exclusive language when discussing access to spaces often limited by sex or gender, such as access to bathrooms, specific schools, specific military, law enforcement, or teaching roles, and health or support groups.” Previously, this carve-out was only available for discussions about keeping health and support groups limited to one gender.

We noted yesterday that the larger change in direction was clearly political. The specifics here make that even clearer. As I noted, there are some legitimate rationales for cleaning up how Meta handles enforcement of its rules, as that has been a total mess. But all of these changes are not in how they handle enforcement. They’re literally all about creating exceptions to their (still in existence) hateful conduct policy to create space for the exact kinds of bigotry and hatred favored by MAGA provocateurs.

This is just confirming that Meta’s about-face is not actually about fixing a broken trust & safety enforcement program writ large, but to just rewrite the rules to allow for more cruelty and hatred towards marginalized groups disfavored by the MAGA world.

It seems like quite a choice. We’ve discussed at great length the whole “Nazi bar” concept, and this is very much a Nazi bar moment for Zuckerberg. This is not calling him a Nazi (as some will inevitably, misleadingly, whine). The whole point of the “Nazi bar” idea is that if the owner of a private space makes it clear that Nazis are welcome, then everyone else will come to realize that it’s a Nazi bar. It doesn’t matter whether or not the owners are Nazis themselves. All that matters is the public perception.

And these specific changes are very much Zuckerberg yelling “Nazis welcome!”

A couple of years ago, when Substack more or less made the same decision, my main complaint was that the company wanted to signal that it was the Nazi bar by dog whistling without coming out and admitting it outright. It’s your private property. You can run it as a Nazi bar if you want to, No one’s stopping you from doing it.

But fucking own it.

Don’t give some bullshit line about “free speech” when it’s not true. Just own what you’re doing: “we’re making a space for bigots to feel comfortable, by changing our rules to expressly cater to them, while expressly harming the marginalized groups they hate.”

That would be the honest admission. But just like Substack, Meta won’t do this, because it’s run by cowards.

Indeed, the most incredible thing in all of this is that these changes show how successful the “working the refs” aspect of the MAGA movement has been over the last few years. It was always designed to get social media companies to create special rules for their own hot button topics, and now they’ve got them. They’re literally getting special treatment by having Meta write rules that say “your bigotry, and just your bigotry, is favored here” while at the very same time suppressing speech around LGBTQ or other progressive issues.

It’s not “freedom of speech” that Zuck is bringing here. It’s “we’re taking one side in the culture war.”

In altering their policies to appease extremists, Meta is directly endangering the well-being and safety of LGBTQ users on their platforms.

As mentioned, he’s free to do that, but no one should be under any illusion that it’s a move having to do with free speech. It’s a political move to say “Nazis welcome” at a moment when it looks like the rhetorical Nazis are about to return to power.

I had mentioned yesterday that this was Zuck trying to follow Musk’s path, which makes some amount of sense. Ever since Elon took over, it’s been pretty clear that Zuck was somewhat jealous of the way in which Musk basically told anyone who didn’t like how he was running ExTwitter to fuck off.

So, it makes sense in two dimensions: (1) trying to be more like Elon in not giving in to public pressure and (2) the spineless appeasement of the new political leaders.

But it doesn’t make much sense on the one other vector that kinda matters: business. Hell, Zuckerberg rushed out Threads as a competitor to ExTwitter because people at Meta recognized how Elon’s haphazard mess of moderation had driven not just users away, but advertisers too.

Zuck may be betting that, because a slim margin of voters put MAGA in charge, advertisers and users will fall in line. But I’m guessing it’s a bet that’s going to bust in a pretty embarrassing manner before too long.

For decades now, U.S. wireless carriers have sold consumers “unlimited data” plans that actually have all manner of sometimes hidden throttling, caps, download limits, and restrictions. And every few years a regulator comes out with a wrist slap against wireless carriers for misleading consumers, for whatever good it does.

Back in 2007, for example, then NY AG Andrew Cuomo fined Verizon a tiny $150,000 for selling “unlimited” plans that were very limited (Verizon kept doing it anyway). In 2019, the FTC fined AT&T $60 million for selling “unlimited” plans that were very limited, then repeatedly lying to consumers about it (impacted consumers ultimately saw refunds of around $22 each).

It’s gotten slightly better, but it’s still a problem. Providers still impose all manner of weird restrictions on mobile lines and then bury them in their fine print, something that’s likely only to get worse after Trump 2.0 takes an absolute hatchet to whatever’s left of regulatory independence and federal consumer protection.

In the interim, telecom providers are even bickering about the definition of “unlimited” between themselves. For example Verizon is mad that Charter Communications (a cable company that got into wireless) is advertising its wireless service as “unlimited,” while telling users they can “use all the data you want.”

As usual that’s not true. There’s all manner of deprioritization that goes on should users actually try to do that. Once you hit a certain download amount, your connection speeds are “reduced.” Charter doesn’t tell you up front that the speeds you’re reduced to are often less than 1 Mbps; so basically a trickle:

There are also usually restrictions on video resolution and tethering downloads for a lot of these companies. So yeah, it’s kind of unlimited? But also not really purely “unlimited?” Same old industry tactics. As an aside, when they say “no hidden fees,” there are almost always hidden fees.

Verizon apparently filed a complaint about Charter’s marketing with the National Advertising Division (NAD) of the Better Business Bureau, sort of an industry-self regulation apparatus designed to pre-emptively justify our feckless regulators not doing their jobs. And unsurprisingly, NAD ruled in favor of Charter, claiming that technically because your line still technically functions after hitting limits, it’s still “unlimited”:

“The National Advertising Division (NAD) concluded that the advertising conveys the message that Spectrum Mobile customers who subscribe to an Unlimited or Unlimited Plus plan will be able to consistently engage in typical online activities, regardless of the amount of data consumed in any given month.”

Even if NAD had found Charter lied, it’s a feckless pseudo-regulatory apparatus that results in no actual meaningful penalty. So the misleading marketing efforts surrounding “unlimited” data survive another day to confuse and mislead everyone.