Bulletins

Big Tech just took its Texas fight to SCOTUS

NetChoice and CCIA filed an emergency application with the Supreme Court, asking it to toss out the Fifth Circuit's decision allowing Texas's social media law to go into effect.

An exterior view of the Supreme Court on a cloudy day.

The Supreme Court will now decide whether to take up the Texas social media case on its shadow docket.

Photo: Geoff Livingston/Getty Images

Tech industry groups NetChoice and CCIA have filed an emergency application with the Supreme Court, asking the court to stay the Fifth Circuit's ruling this week which enabled Texas’s so-called social media “censorship” law to go into effect.

Protocol first reported Thursday that NetChoice and CCIA, the plaintiffs in the case, would file their application on Friday. The two groups had warned other advocates of their intention to file and asked for their support in the form of amicus briefs.


The Fifth Circuit lifted an injunction on the law Wednesday pending appeal, offering no opinion laying out their decision.

“The divided panel’s shocking decision to greenlight an unconstitutional law—without explanation—demanded the extraordinary response of seeking emergency Supreme Court intervention,” Chris Marchese, counsel for NetChoice, told Protocol.

The Texas law, HB 20, prohibits social media platforms with more than 50 million users in the U.S. from moderating content on the basis of “viewpoint,” but that term is not well-defined and creates catastrophic new liability for tech platforms serving Texas. The law also, not coincidentally, contains provisions that aim to prohibit tech platforms from walling off their services in Texas altogether.

NetChoice and CCIA argue that the Texas law is unconstitutional, because it essentially amounts to the government compelling private businesses to carry speech they otherwise would remove. “The First Amendment prohibits Texas from forcing online platforms to host and promote foreign propaganda, pornography, pro-Nazi speech, and spam,” Marchese said. “Left standing, Texas HB 20 will turn the First Amendment on its head—to violate free speech, the government need only claim to be ‘protecting’ it.”

The emergency order doesn’t seek a final ruling on the underlying law, HB 20, but rather asks the Supreme Court to reinstate the injunction on the law, while the appeals case proceeds through the Fifth Circuit. The groups are arguing that denial of their request could cause “irreparable harm” to businesses covered by the law. That includes tech giants like Meta, YouTube and Twitter among others.

The Texas law declares that these platforms are common carriers and therefore can be subject to these speech requirements. Texas lawmakers aren’t alone in making that comparison. Justice Clarence Thomas has also flirted with the idea in a series of statements, where he has called on the court to rein in Section 230 protections and reconsider whether tech platforms are really so different from phone companies.

"A traditional telephone company laid physical wires to create a network connecting people," Thomas wrote last year. "Digital platforms lay information infrastructure that can be controlled in much the same way."

But forcing tech platforms to carry all, or even most, legal speech no matter how vile, risks turning them into even deeper cesspools of spam, pornography, hate speech and gore than they already are.

The Texas case could now be decided on the court’s shadow docket, through which it issues orders without hearing arguments. The decision of whether to take up the case in this way is now up to Justice Samuel Alito, who is assigned to the Fifth Circuit. He will decide whether to rule unilaterally or refer the case to the full court. If the court does take up the case, the decision could come within days.

While it’s historically rare for the Supreme Court to intervene in a case while it’s still pending appeal, experts on the shadow docket say that’s beginning to change, particularly when it comes to cases with the potential to have a huge impact. “The reality here is that the Fifth Circuit stay is going to create such an immediate impact that it’s going to be hard for the court to think that it's appropriate to wait,” Steve Vladeck, a University of Texas at Austin law professor and author of the forthcoming book The Shadow Docket, told Protocol earlier this week.

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We know there’s no such thing as a free lunch. Still, the idea that many corporate benefits aren’t always a benefit recently touched a nerve on Twitter.

“Been thinking about anti-perks in tech jobs. What perks *sound* good but are a hard no from you?”

The tweet came from Jessica Rose, a developer relations advocate, founder of a meetup series for programmers and aspiring programmers and co-founder of Trans*Code, a hacker org devoted to drawing attention to transgender issues and opportunities.

Rose’s “hard no” was to those so-called benefits that have been around since time immemorial (or at least since the dot-com era). “Don't give me food or hammocks or video games, just let me work remotely or go home on time,” said Rose.

'Don’t touch me'

The tweet thread was full of varied responses, but the paradox of unlimited vacation was the clear favorite. “Wow, people are just so suspicious about unlimited paid time off,” Rose told Protocol when we caught up with her to ask about the tweet.

Other workers balked at in-office massages (“don’t touch me”), free booze, open-plan offices (did anyone in the history of the world ever call this a benefit?), fitness rooms, nap rooms, escape rooms (really any rooms), and something called “blameless retrospectives.” Um, what?

If employees are going to be suspicious of whatever perks you offer, why offer any perks at all?

“So I'm aware of how wonderfully spoiled it is to complain about perks being given out in some kinds of tech workplaces,” said Rose. “I'm the most unimpressed by ‘perks’ which either directly undermine employment rights (like unlimited paid time off can do in some regions) or are intended to throw work/life balance out of kilter in the workplace's favor.”

Unlimited or flexible vacation time can work, but it helps when the culture is one where people are encouraged to take time off and experts agree that mandatory minimums go a long way in helping create that kind of culture.

Your best interests or mine? Why can’t it be both? ¯\_(ツ)_/¯

A director of engineering at Google who formerly worked at Microsoft and Zillow called employer-sponsored coaching an anti-perk. “I’ll spring for a coach who is looking out for my best interests, not the company’s, thanks,” she said, adding, “I know I am lucky to be offered this, but it always feels like a trap.”

There’s good reason to be at least a little wary of these programs. Last year Protocol reported that when tech companies work with coaching programs like BetterUp and Bravely the conversations themselves are confidential, but the company often receives aggregated reports on the issues workers are expressing in general, the topics they’re discussing, what's going well for them at work, and what's not.

When Protocol spoke to Twilio’s VP of talent management Andrew Wilhelms about the company's coaching partnership, Wilhelms explained that BetterUp provides a set of Twilio-specific priorities to coaches and Twilio can update those priorities and goals based on what kind of culture change the company needs to see.

This might feel overly controlling, or it might be a great way to help change a company’s culture for the better, especially if a majority of employees are feeling stressed and burned out and are more likely to tell this to a coach than their manager. Twilio told Protocol that 99% of the employees who used the coaching service last year said the sessions were a valuable use of their time, and that 94% said the sessions made them more effective at their job.

“Thoughtful, meaningful perks can benefit both employers and team members, by helping keep their team members happy and hopefully keep them in their role for longer,” Rose said.

Free SunChips < values-based work culture

Research shows that today’s employees don’t want snacks as much as they want work that aligns with their values, and that extends to benefits.

  • “I love work perks that demonstrate an employer's ethics and commitment to meaningfully supporting their team members,” said Rose.
  • These benefits can include big structural benefits like location-agnostic pay and support for different kinds of employee leave, but also smaller things like “sending people a small bonus on their birthday to buy a cake,” Rose added.
  • Rose also looks for “employers who don't subcontract out cleaning or security staff, to make sure that all of their team members get access to the same kinds of pay and support.”

What your 'perks' say about your corporate culture

Some “anti-perks” are just common decency and respect, such as believing your employees are telling the truth when they call in sick. In response to Rose’s prompt, one senior system admin pointed out a job listing that offers an “honor-based sick leave policy” in addition to its “commitment to an open, inclusive and diverse work culture.”

And think twice about listing your game room in your job description, tweeted a product designer from Miro:

“When they advertise a ping-pong table in the job listing, it's a huge 🚩 for me. And I love ping-pong. If a silly perk like this [is] such a relevant part of your benefits package, that says a lot about what the company values, and likely its culture."

A version of this story appeared in Protocol's Workplace newsletter. Sign up here to get it in your inbox three times a week.

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