Supreme Court Blocks Texas Social Media Censorship Law

WASHINGTON — Social media companies scored a huge win late Tuesday after the U.S. Supreme Court voted 5-4 to temporarily block a Texas law that would have barred them from taking action on hate speech and disinformation.

NetChoice v. Paxton is considered a major test of the First Amendment. The Texas law at the root of the controversy, HB 20, would prohibit social media companies from banning users over their political viewpoints, even if their rhetoric veered into the offensive or erroneous.

It would also require social media platforms with more than 50 million monthly users to publicly disclose information about content removal and account suspensions.

NetChoice and the Computer & Communications Industry Association, two large industry trade groups that represent the likes of Google and Twitter, sued to block the law last fall.

In December a federal court ruled in favor of the industry groups, preventing Texas from enforcing the law while the lawsuit continues. The court explained its decision by saying the First Amendment protects a company’s right to moderate content and also held that parts of the new law were “prohibitively vague.”

Texas Attorney General Ken Paxton then appealed the case to the 5th U.S. Circuit Court of Appeals, which on May 11 overturned the lower court ruling, allowing the law to go back into effect while the case proceeds to an outcome.

“HB 20 is an assault on the First Amendment, and it’s constitutionally rotten from top to bottom,” Chris Marchese, counsel for the NetChoice industry trade group, tweeted after the ruling. “So of course we’re going to appeal today’s unprecedented, unexplained, and unfortunate order by a split 2-1 panel.”

On Friday, May 13, the industry group’s did just that, filing an emergency petition asking the Supreme Court to again block the law while their lawsuit plays out.

The majority in the decision did not explain their rationale for siding with the industry associations, but Justices Elena Kagan, Clarence Thomas, Neil Gorsuch and Samuel Alito Jr. all went on record in opposition.

In a dissent joined by Justices Thomas and Gorsuch, Justice Alito wrote that the application filed by the associations “concerns issues of great importance that will plainly merit this court’s review. Social media platforms have transformed the way people communicate with each other and obtain news.”

“At issue is a ground-breaking Texas law that addresses the power of dominant social media corporations to shape public discussion of the important issues of the day.”

Alito went on to explain that he disagreed with the majority on several points. First, he said he did not believe the associations are entitled to a stay because they failed to prove that they have a “[s]ubstantial likelihood of success on the merits” of the case.

He then went on to state the case itself is breaking new legal ground.

“The law before us is novel, as are applicants’ business models,” he wrote. “Applicants claim that §7 of HB 20 interferes with their exercise of ‘editorial discretion,’ and they maintain that this interference violates their right ‘not to disseminate speech generated by others.’”

Alito acknowledges that under some circumstances the court has recognized the right of organizations to refuse to host the speech of others, but also notes that it has rejected such claims in other circumstances. 

“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,” he wrote.

Alito concluded by saying he has not formed “a definitive view” on “the novel legal questions that arise from Texas’ decision to address the “changing social and economic” conditions it perceives. 

“But precisely because of that, I am not comfortable intervening at this point in the proceedings,” he continued. “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. 

“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,” Alito said.

In a statement released after the decision was announced, Marchese said, “Texas’ HB 20 is a constitutional trainwreck — or, as the district court put it, an example of ‘burning the house to roast the pig.’

“We are relieved that the First Amendment, open internet and the users who rely on it remain protected from Texas’ unconstitutional overreach,” he continued. “Despite Texas’ best efforts to run roughshod over the First Amendment, it came up short in the Supreme Court. HB 20 will once again be enjoined and the case will proceed in the lower courts.

“Given the district court’s well-reasoned conclusion that Texas’ law is so constitutionally flawed that it must be enjoined in its entirety, we are confident the courts will likewise strike it down in its entirety,” Marchese said.

Dan can be reached at [email protected] and @DanMcCue