About the only positive thing you can say about famed play/movie writer David Mamet deciding to file an amicus brief in support of Texas in that state’s appeal of a district court correctly tossing the state’s social media content moderation bill as unconstitutional is… that it has fewer swear words than your typical Mamet production. As you’ll recall, Texas followed Florida down this dubious, censorial road, pretending that it can magically force private companies to perpetually host speech it disagrees with.
We expected some silly amicus briefs in support of Texas, and there have been a few (some of which we’ll cover elsewhere), but by far the most bizarre is David Mamet’s decision to, um, weigh in, I guess?
Mamet, if you don’t know, took a Trumpian turn, and like pretty much anyone supporting this law, seems to think that their support of one dude now, um, trumps any actual principles. Or rather, they demonstrate impressively demented levels of cognitive dissonance by twisting themselves into knots pretending that commandeering private property, compelling speech, and removing the 1st Amendment rights of association from private companies is somehow… all about freedom?
The filing starts out with Mamet’s statement of interest in which he — in a brief supporting the government compelling private parties to host speech — claims he’s really concerned about government interference in our freedoms.
Proposed amicus David Mamet aspires to enjoy freedom of speech without government-enabled censorship. Mr. Mamet worries about how Americans can navigate their world when firms that control information conduits, and are privileged and subsidized by the government, serve curated “information” to users and the public which no longer maps onto the world that Americans personally observe.
That’s silly enough, but the actual amicus brief, well, holy shit. It’s… um… a story? It includes no citations. It makes no arguments. It’s just some sort of fictional story that feels like something a freshman in high school might write after getting high the first time and thinking they were profound. It starts out thusly:
The pilot wants to orient himself. He knows approximately where he is, for he knows the direction in which he’s been flying, the speed of the plane, and the time of flight. And he has a chart. Given a 100 mph airspeed, flying west for one hour, he should be at this point on the chart. He should, thus, see, to his right a camelbacked double hill, and, off to his left, a small lima bean shaped lake.
He now looks out, but he can’t find the objects the chart informed him he’d see. He concludes that he is lost.
How can he determine his location? He has a map, but he’s just misused it. How?
The Map is not the territory. The territory is the territory
It goes on like that. Mercifully, not for that long.
But I can assure you that this is likely to be the only amicus brief ever to include the line:
I report as an outdoorsman, that Panic is real. It is the loss of the mind and will to Pan, God of the Woods.
Anyway, after two pages of this silly drivel, he concludes:
A pilot in this situation might conclude he’d simply picked up the wrong map.
But what if the government and its privileged conduits prohibited him from choosing another?
copyright © 2022 by D. Mamet
Deep man. Pass the bong.
Anyway, where to start? Oh, hell, let’s start with the copyright notice. For over a decade, we’ve written about a few different cases where questions were raised about whether or not you could even copyright a legal brief. And the courts seem to say that you can in some circumstances, though almost no one bothers to register their briefs because, really, why would you? In a few situations where it was a pure moneygrab by lawyers looking to shake down database companies like Westlaw and Lexis/Nexus, the courts have not looked too kindly on these arguments. That said, we did cover one case where a copyright claim survived over a legal brief, but it was a pretty unique situation, involving a lawyer who had been working with another lawyer, defending two different defendants in a case, and the one lawyer basically copied a huge section of a draft brief the other lawyer was going to file in the very same case. Under that circumstance, the court found the copyright claim to be more reasonable.
Either way, it should be clear that reposting and commenting on Mamet’s brief here, as silly as it is, constitutes clear fair use.
As for the brief itself, even in the nutty 5th Circuit, it seems quite likely that this particular brief will be mostly ignored, other than perhaps to wonder at what inspired Mamet to submit such nonsense.
As for the — and I hesitate to call it this, but whatever — “substance” of Mamet’s argument, even given the most forgiving read of it, Mamet seems to be claiming that the obviously unconstitutional restriction on private property rights and the 1st Amendment rights of social media companies should be allowed, because… otherwise the government “and its privileged conduits prohibited” you from choosing another platform.
Except, that’s not at all what any of this is about. First off, social media platforms are not the government’s privileged conduits under any conceivable definition. Second, at no point is anyone prohibited from choosing another platform. And these days there are so many platforms for Trumpists like Mamet to choose from.
As someone who has attended apparently a few too many of Mamet’s plays and movies, I’ll say that in his old age, he seems to have completely lost the plot.
