Divided court prevents Texas from enforcing social media law

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Texas Governor Greg Abbott believes the state’s new social media law will prevent companies like Twitter from censoring conservatives. (Wikimedia Commons)

On Tuesday, the Supreme Court sided with the tech industry and blocked a controversial Texas law that prohibits major social media platforms like Facebook and Twitter from deleting posts based on the views they express. .

The judges divided 5-4 in an ideologically scrambled vote. Three of the court’s conservatives (Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett) joined two liberals (Justices Stephen Breyer and Sonia Sotomayor) in suspending the law while lower courts continue to assess the tech companies’ constitutional challenge to the law. The other three conservatives (Justices Clarence Thomas, Samuel Alito and Neil Gorsuch) and one liberal justice (Elena Kagan) dissented.

The majority did not explain the reasoning behind their brief order. Alito wrote a six-page dissent saying court intervention to block the law is premature. Thomas and Gorsuch joined this dissent. Kagan did not agree with Alito’s opinion, but she separately indicated that she too would have allowed the law to go into effect. She did not specify her thought.

The law at the center of the dispute is known as HB 20. It prohibits social media platforms with at least 50 million active users from blocking, removing or “demonetizing” content based on user opinions. When Texas Governor Greg Abbott signed the law last September, he said “conservative views in Texas cannot be banned from social media.” Tech companies have challenged the law, saying it violates their First Amendment right to control speech that appears on their platforms. They also said the law would prevent them from removing hate speech, political misinformation, violent videos and other harmful content.

On December 1, 2021 – a day before the law takes effect – U.S. District Judge Robert Pittman prohibits the state of its implementation. The state appealed to the United States Court of Appeals for the 5th Circuit, which on May 11 issued a sentence order which lifted Pittman’s injunction, allowing the state to enforce the law.

Two tech trade groups representing social media companies affected by the law appeared before the Supreme Court on May 13, asking judges to reinstate Pittman’s injunction. They argued that the law violated “fundamental First Amendment principles” that allow private entities, including websites, to choose “if and how to deliver speech.” They pointed out that the law confronts social media platforms with “an immediate and irreversible Hobson’s choice”: they can either “change the fundamental nature of their business” or defy the law, resulting in “ruinous liability with accompanying daily penalties”.

Texas Attorney General Ken Paxton fired back, saying HB 20 does not violate the First Amendment because it does not regulate speech. Instead, he argued, because it is enough for social media platforms to serve customers on an equal footing, without discriminating against some based on the opinions they hold, this applies to the driving. But even if the First Amendment applies, Paxton continued, the state can still regulate the platforms because they are “common carriers” — a legal term for companies that transport people, goods or services and cannot choose among their customers.

In a brief, unsigned order, the Supreme Court granted the tech groups’ request to reinstate Pittman’s injunction, meaning Texas cannot enforce the law while the litigation continues in lower courts.

In his dissent, Alito explained that the court should not reinstate Pittman’s injunction unless the tech groups can demonstrate that under current law they are likely to prevail on the merits of their case. CONTESTATION. But whether groups can demonstrate that, Alito suggested, “is unclear” because the law and the business models of social media platforms are “new”.

Alito stressed that he had not “formed a definitive opinion on the new legal issues that arise from Texas’ decision to address the ‘changing social and economic’ conditions it perceives.” “But precisely because of that,” Alito continued, he was “not comfortable intervening at this stage of the proceedings.”

Florida has a similar law that aims to regulate the content moderation policies of social media companies. It aims to prevent platforms from banning users because of their political ideology. Last week, the United States Court of Appeals for the 11th Circuit prevented Florida from enforcing the lawbelieving that it likely violates the First Amendment.

This article has been originally published at Howe on the Court.

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