Texas passed HB20 last September to combat the allegedly “dangerous movement by social media companies to silence conservative viewpoints and ideas.” Yesterday, in a victory for First Amendment rights on the internet, a sharply divided Supreme Court temporarily blocked the law from going into effect. The Supreme Court is likely to consider this controversial law, or another like it, on the merits in future, and the alignment of votes in yesterday’s decision provides some insight into how the justices would rule in such a case.
HB20 prohibits social media platforms from “censoring” lawful content based on any viewpoint it expresses, ranging from the innocuous—whether pineapple belongs on pizza—to the vile—whether the Holocaust was justified. Platforms that violate this requirement face liability for each piece of content they remove. Any aggrieved user may sue the platforms for “viewpoint discrimination,” even if that user didn’t post the content themselves.
NetChoice and CCIA, two trade associations of online businesses, sued Texas immediately after HB20’s passage in a federal district court, arguing the law violated platforms’ well‐established First Amendment right to choose what content they host. The district court agreed and issued a preliminary injunction. Texas then appealed the district court’s decision to the Fifth Circuit (where Cato filed a brief in support of NetChoice and CCIA). Though it still has not released an opinion, the Fifth Circuit issued a one-sentence order a few weeks ago, lifting the district court’s injunction and suddenly putting HB20 into effect. NetChoice and CCIA then filed an emergency application to the Supreme Court (where Cato also filed in support of the NetChoice and CCIA) to vacate the stay. A majority of five justices granted the application. HB20 is temporarily blocked once again, pending the Fifth Circuit’s opinion on the merits.
But Justice Alito, writing in dissent for himself and Justices Thomas and Gorsuch, departed from the majority. Those justices believe this case raises “novel” questions concerning “the power of dominant social media corporations to shape public discussion of the important issues of the day.” Alito stressed that he had not formed a definitive view on the merits, but that he would not have stepped in to block the law “at this point in the proceedings.” Justice Kagan, who also dissented from the ruling, did not join Alito’s opinion.
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