Tech groups fighting Texas’s social media “censorship” law may file an emergency application with the Supreme Court as early as Friday, according to two sources familiar with the case. The groups, NetChoice and CCIA, have said they plan to ask the justices to vacate the Fifth Circuit's Wednesday ruling, which lifted an injunction on the Texas law, allowing it to go into effect and prompting panic throughout the tech industry.
NetChoice and CCIA are now soliciting amicus briefs in their application to be filed by next week. NetChoice did not respond to Protocol's request for comment. CCIA wouldn't confirm its plans, but President Matt Schruers said in a statement, "We will take whatever steps are necessary to defend our constituents' First Amendment rights. These include the right not to be compelled by the government to carry dangerous content on their platforms."
The law would prohibit platforms with more than 50 million users from moderating content on the basis of “viewpoint,” opening the door to a deluge of lawsuits. The plaintiffs in the case had a number of options — none of them good. Simply pulling out of Texas completely would not only be politically disastrous, but it would also violate the law itself. Waiting for the Fifth Circuit to issue its final decision and then taking the case back to the trial court would also risk time companies don't have.
Supreme Court watchers immediately clocked the Texas decision as a sure bet for the much-maligned shadow docket. “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,” University of Texas at Austin law professor Steve Vladeck told Protocol.
The opportunity to decide on whether the Texas law proceeds will be a test for Justice Clarence Thomas, who has written at length about the need to reconsider the concentration of power in a few tech companies' hands and has at times called on those companies to be regulated like common carriers. The Texas law seeks to do just that, requiring companies that currently enjoy their own First Amendment rights and Section 230 protections to carry speech they would otherwise take down.
In a Twitter thread Thursday, CCIA laid out its arguments as to why the Fifth Circuit's decision to let the law take effect was wrong. "The First Amendment protects our right to speak- or not speak- without [government] intervention," it read. "The [government] can’t force private businesses like newspapers or online platforms to publish speech, any more than it can force you or I to speak against our will."
The Eleventh Circuit is still considering whether to reinstate a similar law in Florida.