On Tuesday, the U.S. Supreme Court blocked an Texas law on social media that would have penalized online platforms for removing political expression.
The vote was 5 to 4, with the court’s conservative three justices filing a written dissension that would have allowed Texas law to begin. Surprise move: Justice Elena Kagan, a liberal, joined the dissent but did not explain why.
Texas law prohibits Instagram, Facebook and Twitter from blocking content that is based on viewpoint. Gov. Greg Abbott stated that the law was justified in response to “a dangerous move by social media companies silence conservative views and ideas.”
A federal district court temporarily stopped state officials from enforcing this law because it was likely to violate the First Amendment. The 5th U.S. panel was divided, however. Circuit Court of Appeals permitted enforcement to proceed.
After a lower court ruling had been overturned, NetChoice and Computer & Communications Industry Association filed an emergency request to stop the law from going into effect.
These groups argued that the law would make tech platforms remove everything, from Russian propaganda to neo Nazi and Ku Klux Klan screeds. They maintained that the Constitution protected their right to manage platform content just like it protects newspaper publication decisions.
The Chamber of Progress, which is a lobbying group for Big Tech applauded Texas’s high court’s pause on the Texas law.
“As we discuss how to stop more senseless violence acts, Texas’s law will force social media to post racist, hateful and extremist content,” stated Adam Kovacevich, the CEO of the group.
Scott Wilkens is a senior staff attorney at the Knight First Amendment Institute, Columbia University. He also welcomed the court’s decision, saying that “the theory of Texas’ First Amendment that Texas is proposing in this case would give the government broad power to censor or distort public speech.”
Texas law prohibits social media platforms that have at least 50,000,000 monthly active users, such as Facebook, Instagram and YouTube, TikTok, Twitter, from removing posts based on user viewpoints. If users feel their political views have been blocked, they can sue the platforms. It allows the attorney general of the state to enforce violations. This power is a concern for experts who have studied online speech and platforms.
Florida passed a similar law to regulate social media companies. However, that law was halted due to legal disputes over its implications for First Amendment rights and other legal issues.
Online platforms are not legally responsible to what users post. Tech companies’ policies regarding what can and cannot be posted on their sites have long been protected speech under the First Amendment.
However, both Texas Attorney General Ken Paxton (US Supreme Court Justice Clarence Thomas) are embracing a growing movement for reinterpreting these laws. They believe that social media companies should have the same regulation as “common carriers”, such as a telephone company or other public utility, and should therefore be subject to extensive federal regulation.
Since the Fifth Circuit panel appears inclined to uphold Texas law, the Texas case will almost certainly be remanded to the Supreme Court. If that happens, a similar ruling would directly contradict a ruling of the Eleventh Circuit Court of Appeals. The Supreme Court will then resolve the dispute.
