US Supreme Court puts Texas social media law on hold

Justices Roberts, Kavanaugh, Barrett help halt enforcement of HB 20

The US Supreme Court on Tuesday reinstated the suspension of Texas' social-media law HB 20 while litigation to have the legislation declared unconstitutional continues.

The law, signed in September by Texas Governor Greg Abbott (R), and promptly opposed, forbids large social media companies from moderating lawful content based on a "viewpoint," such as "smoking cures cancer" or "vaccines are poison" or hateful theories of racial superiority. Its ostensible purpose is to prevent internet giants from discriminating against conservative social media posts, something that studies indicate is not happening.

Those fighting the law – industry groups and advocacy organizations – say the rules would require large social media services such as Facebook and Twitter to distribute "lawful but awful" content – hate speech, misinformation, and other dubious material. They argue companies have a First Amendment right to exercise editorial discretion for the content distributed on their platforms.

Earlier this month, the US Fifth Circuit Court of Appeals vacated a preliminary injunction put in place last year by a district court hearing a challenge brought by tech trade groups NetChoice and CCIA against HB 20. That allowed Texas to begin enforcing HB 20 while the legal challenge to the law remains unresolved and threatens online content moderation in the state.

A person breaking free of shackles

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So last week, a coalition of advocacy groups petitioned the US Supreme Court to undo the Fifth Circuit decision [PDF] while Texas argued to the contrary [PDF], characterizing large social media firms as "common carriers" just like network service providers that are subject to limits on how they police speech.

That particular line of reasoning didn't impress the US Eleventh Circuit Court of Appeals last week in its consideration of SB 7072, Florida's similar social media law. The Eleventh Circuit partially upheld a lower court's preliminary injunction blocking the Florida law on the basis that certain portions are likely to violate US First Amendment free speech protections. The Florida ruling said the state could not strip businesses of their free speech rights simply by declaring them to be common carriers.

As for the Texas law, the Supreme Court voted 5 to 4 [PDF] to grant the plaintiffs' application to vacate the Fifth Circuit's stay of the preliminary injunction granted by the district court. By doing so, the Supreme Court temporarily halted the enforcement of HB 20 once again. The Justices opposing the decision were Kagan, Alito, Thomas, and Gorsuch, with the last three joining the dissent authored by Alito.

"While I can understand the Court’s apparent desire to delay enforcement of HB 20 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," Justice Alito wrote.

Texas should not be required to seek preclearance from the federal courts before its laws go into effect

In a Twitter post, University of Texas School of Law professor Stephen Vladeck said, "To be clear, the headline here is not the dissent; it’s that Chief Justice Roberts, Justice Kavanaugh, and Justice Barrett all voted to block HB20."

"That’s a pretty powerful sign of where #SCOTUS is heading on this case – and issue – even if the dissent's analysis is … alarming."

The Chamber of Progress, a tech industry trade group, welcomed the Supreme Court intervention.

"As we debate how to stop more senseless acts of violence, Texas's law would force social media to host racist, hateful, and extremist posts," said Chamber of Progress CEO Adam Kovacevich in a statement emailed to The Register. "Anti-content moderation laws are so actively harmful that our nation’s highest court took an emergency appeal to prevent this law from taking effect." ®

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