For years, Supreme Court Justice Clarence Thomas has been openly itching for a case that would give the court an opportunity to rein in Section 230 protections. Now, Texas’ controversial social media “censorship” law could give him an opening.
The Texas law prohibits tech platforms with more than 50 million monthly users from moderating content on the basis of “viewpoint,” an ill-defined concept that is ripe for bad-faith interpretation. On Wednesday, a Fifth Circuit appeals court lifted an injunction on the law, which will now take effect in the state.
Tech giants including Meta, Google, Snap, Twitter, TikTok and others are now scrambling for a legal remedy. None of those companies would share information with Protocol about what happens next. In all likelihood, they’re still figuring it out themselves.
One option on the table, though, would be for the plaintiffs in the case — industry groups NetChoice and the Computer and Communications Industry Association — to try their luck with the Supreme Court. In a statement, CCIA president Matt Schruers said, “No option is off the table.”
For Thomas, at least, such a case might be welcome. He’s argued in the past that tech platforms are "sufficiently akin" to common carriers and that the court will soon have no choice but to “address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms." Thomas’s public turn against tech came shortly after he hired a clerk who was previously a lawyer for noted Sec. 230 critic Sen. Josh Hawley.
"He took the opportunity to rip on Sec. 230 in [a] case that didn’t even present the issue in any way at all. So one that presents the issue, I think he’ll certainly jump on that,” said David Greene, senior staff attorney at the Electronic Frontier Foundation.
It’s possible the Supreme Court could take up the case on its shadow docket, without hearing oral arguments — an outcome University of Texas at Austin law professor Steve Vladeck, who is writing a book on the shadow docket, believes is likely. “I just don’t see how social media companies can risk having this law stay on the books,” Vladeck said. “There will be a ton of pressure to ask the Supreme Court to vacate the stay.” Vladeck pointed to a similar shadow docket decision in March when the Court overturned the Fifth Circuit’s block on the Biden administration’s military vaccine mandate.
Not everyone shares Vladeck’s certainty. According to Corbin Barthold, internet policy counsel for the think tank TechFreedom, “it is still extraordinarily rare for the Supreme Court to review any aspect of an appeal before that appeal is complete.” While the Fifth Circuit lifted the injunction on the Texas law, suggesting it’s likely to uphold the law on appeal, the appeal itself is still pending.
But, Vladeck said, while this has been the case historically, the Supreme Court has become much more active in intervening, particularly in cases that are likely to cause a huge disruption, like this one. “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,” Vladeck said.
Even if the case doesn’t make it to the shadow docket, though, it could still wind its way to the Supreme Court; it’ll just take longer. While NetChoice and CCIA fight it out in the Fifth Circuit, the 11th Circuit is also considering a similar social media law in Florida, and Barthold expects that court to be more deliberate in its decision than the Fifth Circuit was. Being more deliberate than the Fifth Circuit, incidentally, won’t be much of a challenge: The court lifted the injunction on the Texas law just two days after hearing oral arguments, without so much as an opinion. During the arguments, the judges seemed perplexed about whether Twitter is even a website. “To just issue an order like this with no opinion on such an unprecedented law,” Barthold said, “it had a flavor of spite to it.”
If the 11th and Fifth Circuits split, the Supreme Court might take up the case the old-fashioned way, with oral arguments and all. “Then I would flip my whole analysis and say it is likely, even probable, that the Supreme Court would hear that case,” he said.
The question then is, would Thomas’ fellow conservative justices see things the same way he does? That answer is still very unknown. So far, everything Thomas has written on Sec. 230 has only had his name attached.
If history serves, his conservative colleagues would be a hard sell. In 2019, all of the conservative justices, including Thomas, joined Justice Brett Kavanaugh in a decision that found public-access channels can’t violate people’s constitutional rights because, though they provide a public forum for speech, they are not themselves state actors. That makes them seem unlikely candidates to rally behind the Texas law, which would also effectively turn tech platforms into common carriers.
One thing is certain, though. If the Supreme Court were to take up the case in this way, it would take time, maybe even years. In the meantime, tech platforms would have to find a way to live with the Texas law as it is — or die trying.
With additional reporting by Ben Brody.
