The Supreme Court has blocked Texas’s social media “censorship” law, HB 20, after two tech industry groups, NetChoice and CCIA, filed an emergency application asking the court to take the case up on its shadow docket last week.
The emergency filing came after a 5th Circuit court lifted an injunction on the law, allowing it to go into effect with potentially catastrophic consequences for the tech industry. More than 30 groups filed amicus briefs in support of NetChoice and CCIA since last week, and the court has sided with them.
The court decided to overturn the 5th Circuit's decision by a 5-4 vote, with Justices Samuel Alito, Clarence Thomas and Neil Gorsuch writing a dissent.
“Despite Texas’s best efforts to run roughshod over the First Amendment, it came up short in the Supreme Court,” said Chris Marchese, counsel at NetChoice.
“We are encouraged that this attack on First Amendment rights has been halted until a court can fully evaluate the repercussions of Texas’s ill-conceived statute,” CCIA president Matt Schruers said in a statement.
HB 20 bans social media platforms from moderating content based on users' “viewpoint.” The statute is aimed at punishing online services for what Republicans insist is censorship of conservative content — an approach that has raised significant constitutional concerns and could undermine platforms’ years of efforts to tackle hate speech and harmful misinformation.
Texas has argued that it is seeking to ensure its residents can speak freely on popular forums by forcing those platforms to “carry” all views or face a flood of lawsuits from users who can claim they have been “censored.” But a broad coalition of legal scholars have concluded that it is the state that’s trying to impose punishments on private actors for their handling of content, in clear violation of U.S. free speech protections.
NetChoice and CCIA, which both represent social media companies, sued to stop the law, and a federal district court had paused the rollout over the likelihood that the statute violates the First Amendment. An appeals court, however, allowed the measure to go into effect earlier this month while the lower court proceeding is ongoing. The appeals court judges cleared the way for the law after a hearing at which they appeared to struggle with basic tech concepts, including whether or not Twitter is a website.
“The Supreme Court noting the constitutional risks of this law is important not just for online companies and free speech, but for a key principle for democratic countries,” Schruers said. “No online platform, website, or newspaper should be directed by government officials to carry certain speech. This has been a key tenet of our democracy for more than 200 years, and the Supreme Court has upheld that.”
The Court's decision to block the law came from an unusual coalition: Chief Justice John Roberts, as well as Justices Brett Kavanaugh, Amy Coney Barrett, Sonia Sotomayor and Stephen Breyer. Justice Elena Kagan, a vocal critic of the shadow docket, denied the application to vacate the Fifth Circuit's decision, but notably did not join with the conservative justices in their dissent, authored by Justice Alito.
Although NetChoice and its allies cited cases from as recently as 2019, Alito wrote that he, Thomas and Gorsuch weren't sure how "existing precedents, which predate the age of the internet, should apply to large social media companies." Thomas, in particular, has previously voiced support for treating social media platforms as common carriers.
Alito argued it was plausible the Texas law's disclosure requirements are constitutional and that the law was too novel to evaluate at this stage. In his dissent, Alito also suggested he agreed with Texas that, by invoking Section 230 and seeking not to be held as publishers of user posts, the platforms forgo the kinds of robust free-speech protections that speakers normally get.
The dissent also signaled that the high court may not be done with the issue. Shortly after NetChoice sought its emergency ruling from the Supreme Court, another appeals court upheld most of an injunction on a similar Florida law. A potential circuit split could result in the Supreme Court having to take up the issue once again. "This application concerns issues of great importance that will plainly merit this Court’s review," Alito wrote.
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