by Dennis Crouch
NetChoice, LLC v. Paxton, 21A720, 596 U.S. ___, 2022 WL 1743668 (U.S. May 31, 2022)
The most recent news in this case is that a 5-4 Supreme Court has sided against Texas–issuing an emergency order to reinstitute the preliminary injunction against enforcement of the Social Media Censorship law known as HB20. The case is now back before the 5th Circuit who review the preliminary injunction order in a non-emergency fashion.
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The State of Texas enacted HB20 to regulate large social media platforms (>50 million users). The law has a number of reporting requirements and also prohibits large social media platforms from censoring users based upon that user’s viewpoint viewpoint. Here, “censor” is broadly defined “to mean to block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression.”
NetChoice is a lobbying organization controlled by large media companies, including Google, Facebook, TikTok, Amazon & Twitter. Those companies argue that HB20 impinges upon their Constitutionally protected free speech rights. In particular, the large social media platforms argue that the First Amendment protects their rights to operate as editors making publication decisions.
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The Supreme Court’s decision against Texas was issued without an opinion by a 5-judge majority of Chief Justice Roberts along with Justices Breyer, Sotomayor, Kavanaugh and Barrett. Four justices dissented, including Justice Kagan who did so without any opinion. The only opinion then came from Justice Alito’s dissent that was joined by Justices Thomas and Gorsuch. This sort of decision here is quite wonky — it is an emergency order to vacate the 5th Circuit’s order to temporarily stay the district court’s preliminary injunction. Here, I want to just focus a bit on Justice Alito’s First Amendment suggestions, which he notes have not been finalized at this preliminary and emergency stage.
Justice Alito’s opinion identifies the first amendment issues at stake here to be important and novel. “It is not at all obvious how our existing precedents, which predate the age of the internet, should apply to large social media companies.” Although editorial control is certainly within the First Amendment, the court has previously allowed requirements to be placed on broadcast and cable television and even a shopping center. See PruneYard Shopping Center v. Robins, 447 U. S. 74 (1980) and Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622 (1994).
Next step in the case is for the 5th Circuit to decide whether to cancel the preliminary injunction. I expect that the court will at least narrow the injunction if not entirely eliminate it. At that point the case will move back down to the district court. If Texas does begin enforcement then there will likely be a number of cases moving up through both State and Federal courts.