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Supreme Court blocks Texas social media censorship law

5 justices voted to temporarily block a Texas law that social media companies claim could force them to host racist propaganda

A divided Supreme Court on Tuesday afternoon blocked a Texas social media censorship law that would prevent companies like Facebook and Twitter from banning users, a move industry groups warned could force sites to disseminate harmful speech. 

In an apparent 5-4 split, the justices vacated a lower court order that would allow the law to go into effect. Justice Samuel Alito wrote a dissent joined by Justices Clarence Thomas and Neil Gorsuch. Justice Elena Kagan also would have denied the application. The majority did not provide an explanation for their ruling. 

Alito said it wasn’t clear that the case would succeed on the merits and therefore the justices shouldn’t have offered relief. 

“While I can understand the Court’s apparent desire to delay enforcement of HB20 while the appeal is pending, the preliminary injunction entered by the District Court was itself a significant intrusion on state sovereignty, and Texas should not be required to seek preclearance from the federal courts before its laws go into effect,” the George W. Bush appointee wrote. “The Court of Appeals, after briefing and oral argument, concluded that the District Court’s order should be stayed, and a decision on the merits can be expected in the near future. I would not disturb the Court of Appeals’ informed judgment about applicants’ entitlement to a stay.” 

House Bill 20 attempts to label social media sites as common carriers — companies providing public telecommunications facilities — regulating their ability to remove users from their sites. Passed after former President Donald Trump was permanently banned from Twitter and suspended from Facebook, HB 20 would allow users who feel they have been wrongfully censored to sue Texas companies for relief and would apply to companies with more than 50 million users — like Facebook, Twitter, and YouTube. 

Tech industry groups NetChoice and the Computer & Communications Industry Association sued Texas Attorney General Ken Paxton, claiming the law violates social media companies’ First Amendment rights to editorial discretion over the content published on their sites. Obama appointee U.S. District Judge Robert Pittman blocked HB 20 in December, contesting the classification of these companies as common carriers. A divided Fifth Circuit panel then issued a one-sentence order granting a stay that allowed Paxton to begin enforcing the law immediately. 

NetChoice and CCIA appealed to the justices to block the Fifth Circuit ruling, calling the law an “unprecedented assault” that would fundamentally transform the business model and services of private websites. Without being able to use editorial discretion, these sites would have to disseminate the views of racists and terrorists, spread historically inaccurate and harmful information, and promote risky behaviors to minors. 

“HB20 would compel platforms to disseminate all sorts of objectionable viewpoints — such as Russia’s propaganda claiming that its invasion of Ukraine is justified, ISIS propaganda claiming that extremism is warranted, neo-Nazi or KKK screeds denying or supporting the Holocaust, and encouraging children to engage in risky or unhealthy behavior like eating disorders,” Scott Keller, an attorney from Lehotsky Keller representing NetChoice and CCIA, wrote in their application to the high court. “HB20 also imposes related burdensome operational and disclosure requirements designed to chill the millions of expressive editorial choices that platforms make each day.” 

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Texas claims that social media sites are the “modern public square” and that HB 20 merely gives Texans equal access to assert their freedom of speech. Texas Solicitor General Judd Stone II claims the law regulates conduct, not speech. 

“As this Court has twice recognized, a rule that requires a host to equally treat all comers regulates that host’s ‘conduct, not speech,’” Stone wrote in the state’s reply brief. “That remains true even when the conduct to which such a rule applies affects or relates to others’ underlying speech. The platforms cannot convert their conduct, namely their choices to restrict access to their property, into speech by recharacterizing those restrictions as editorial discretion.”  

Alito argues it isn’t clear how the court’s precedents will apply in this case because they came before the internet age. While he says he has not formed a view on the legal questions presented by the case, Alito leaned into arguments from Texas in his dissent. 

“It is not at all obvious how our existing precedents, which predate the age of the internet, should apply to large social media companies, but Texas argues that its law is permissible under our case law,” Alito wrote. 

The disclosure requirements within Texas’ law, according to Alito, present a strong argument, and he claims there would be widespread consequences if the court sided with industry groups.

“The State notes that we have upheld laws requiring that businesses disclose ‘purely factual and uncontroversial information about the terms under which [their] services will be available,’ so long as those requirements are not ‘unjustified or unduly burdensome,’” Alito wrote. “If we were to agree with the applicants’ arguments, the decision could have widespread implications with regard to other disclosures required by federal and state law.” 

Alito also noted that the Texas attorney general’s enforcement is limited to prospective relief. 

“In this respect, this statute is quite different from one that authorizes imprisonment or severe monetary penalties for those who refuse to comply,” he wrote. “Should the attorney general bring an enforcement action for injunctive relief, applicants would then have an opportunity to argue that the statute violates the First Amendment, whether facially or as applied to them.”

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