A Texas law that would have banned much moderation on social media has been put on hold again. In a 5-4 statement pronounced today, the Supreme Court overturned a previous decision by the Fifth Circuit Court of Appeals, meaning HB 20 — which prohibits banning, demonetizing or degrading user posts in Texas based on “opinion” — will be blocked while a lawsuit over the constitutionality thereof. A lower court had already blocked the law in 2021 before the Fifth Circuit unblocked it in May.
NetChoice and the Computer and Communications Industry Association (CCIA), which are suing to shut down HB 20, filed a petition earlier this month with the Supreme Court seeking a ruling — in response to a surprising and inexplicable ruling from the Fifth Circuit. Judge Samuel Alito initially reviewed the emergency request and referred it to the rest of the court. While Alito himself was not in favor of lifting that ruling, he was outnumbered. Judges John Roberts, Stephen Breyer, Sonia Sotomayor, Amy Coney Barrett and Brett Kavanaugh voted in favor of the decision, while Alito was joined by Judges Clarence Thomas, Neil Gorsuch and Elena Kagan.
Alito’s dissent describes the case as “issues of great importance that clearly deserve this Court’s review,” namely, “a landmark Texas law that leverages the power of dominant social media companies to shape public discussion on the important issues of the day.” .” It suggests that Texas law, as well as a similar Florida law, could occupy courts for years to come.
NetChoice attorney Chris Marchese celebrated the decision in a statement. “Texas’ HB 20 is a constitutional train wreck,” Marchese said. “We are relieved that the First Amendment, the open internet and the users who rely on it, will continue to be protected from Texas’ unconstitutional transgression.”
Following the Supreme Court’s decision on the suspension, the lawsuit over HB 20 will continue in a lower court, leading to a more final decision on whether or not to reverse it. While a district court was highly critical of the law, the Fifth Circuit ruling followed a hearing where judges raised concerns about the First Amendment and Section 230 of the Communications Decency Act, both of which are being violated by NetChoice and the CCIA by HB 20, rejected. †
Texas Attorney General Ken Paxton defended the law in a file with the Supreme Court. Paxton argued that major social media platforms (defined as having more than 50 million monthly active users) are “common carriers” that should be required to treat all content neutrally, and said they would not be seriously harmed by the rule that takes effect as the lawsuit progresses forward. “The platforms are the twenty-first century descendants of telegraph and telephone companies,” Paxton wrote. While the platforms compare their corporate policies to classic examples of First Amendment speech, such as a newspaper’s decision to include an article on its pages, the platforms have rejected such a status for many years and on numerous occasions. “
But NetChoice and the CCIA argued that HB would make basic moderation decisions unworkable. “Platforms should not be coerced by the government to spread the most despicable expressions — such as manifestos by white supremacist organizations, Nazi cries, Russian state propaganda, Holocaust denial and recruitment to terrorist organizations,” they said in a brief statement. document filed with the Supreme Court. A lower court judge came to a similar conclusion, blocking the bill late last year, before the reversal of the Fifth Circuit, saying moderation “would benefit users and the public.” A judge also blocked a similar law in Florida, though broadcasting some provisions that weren’t in the Texas rule, such as a bizarre exception for amusement park operators. The Eleventh Circuit Court of Appeals also upheld the block earlier this month.
The practical implications of HB 20 are confusing, especially after a recent comment from the author, Texas House of Representatives legislator Briscoe Cain. In a tweet following the mass shooting in Buffalo, New York, Cain claimed that HB 20 would not stop site operators from removing any content mentioned in Section 230, including “excessively violent” content such as a video of the attack. But Section 230 also protects moderation each content that is legal but “objectionable” – contradicts a previous claim and implies that the law would be factually meaningless. Meanwhile, the bill includes a provision prohibiting sites from banning Texas-based users, a requirement with little legal precedent.
Nevertheless, statements from various organizations and policy experts weighed in on its legality, mostly in favor of NetChoice. (One of Texas’s supporters was the state of Florida, whose own legal situation would be bolstered by a Texas victory.) The bill’s opponents were groups whose missions otherwise diverge considerably, including the libertarian-oriented Cato Institute and TechFreedom, the Anti-Defamation League, the American Civil Liberties Union and the Wikimedia Foundation. Chris Cox, who co-authored Section 230 as a representative of the Republican Congress, also filed in support of NetChoice.
In contrast, individual tech companies have been almost completely silent about the law. Meta, Twitter and Google all declined to comment on their plans following the Fifth Circuit decision. So have other companies whose services are likely to be affected, including the Match Group (which runs Tinder and many other dating apps) and Automattic (which owns Tumblr and WordPress.com). TikTok, Pinterest, Reddit, Discord and others did not respond to a request for comment. So far, no legal complaints appear to have been filed against them under HB 20.