Justice Samuel A. Alito Jr., joined by Justices Clarence Thomas and Neil M. Gorsuch, said he had not made up his mind about the constitutionality of the law, but would have allowed it to go into effect while review continues. Justice Elena Kagan also would have let stand for now a lower court’s decision allowing the law to take effect, but she did not join Alito’s dissent or provide her own reasons.
Two Washington-based groups representing Google, Facebook and other tech giants filed the emergency request with the Supreme Court on May 13. The Texas law took effect after a divided panel of the U.S. Court of Appeals for the 5th Circuit lifted a district court injunction that had barred it.
The appeals court’s order, which provided no legal reasoning, shocked the industry, which has been largely successful in batting back Republican state leaders’ efforts to regulate social media companies’ content-moderation policies.
“No online platform, website, or newspaper should be directed by government officials to carry certain speech,” Computer and Communications Industry Association (CCIA) president Matt Schruers said after the Supreme Court issued its order. “This has been a key tenet of our democracy for more than 200 years.”
Texas and Florida are two states with such laws, which they said were necessary to combat the tech industry’s squelching of conservative viewpoints. If two of the country’s regional appeals courts split on the legality of similar laws, there is a good chance the Supreme Court will need to confront the question of whether states may bar social media companies from removing posts based on a user’s political ideology or comments.
On May 23, a unanimous panel of the U.S. Court of Appeals for the 11th Circuit said that much of Florida’s law violated the First Amendment, ruling that social media companies’ efforts to curate the content of their platforms was speech that the government could not control.
In a detailed 67-page opinion, the three judges — all appointees of Republican presidents — unanimously rejected many of the legal arguments that conservative states have been using to justify laws governing the moderation policies of major tech companies after years of accusing the tech companies of bias against their viewpoints. The opinion was written by an appointee of former president Donald Trump.
The tech companies similarly have called the Texas law “an unprecedented assault on the editorial discretion of private websites (like Facebook.com, Instagram.com, Pinterest.com, Twitter.com, Vimeo.com, and YouTube.com) that would fundamentally transform their business models and services,” according to the Supreme Court application filed by two organizations, NetChoice and the CCIA.
The organizations hired a former U.S. solicitor general and two former Texas solicitors general to take the case to the Supreme Court.
The petition cited “serious First Amendment problems with these novel state efforts to regulate a global phenomenon” that should be fully litigated before the Texas law goes into effect.
In their filing to the Supreme Court, NetChoice and CCIA argue that the law is unconstitutional and risks causing “irreparable harm” to the Internet and businesses.
“While the Judiciary cautiously reviews these momentous issues, platforms should not be compelled by government to disseminate the vilest speech imaginable — such as white supremacist manifestos, Nazi screeds, Russian-state propaganda, Holocaust denial, and terrorist-organization recruitment,” the petition said.
Texas Attorney General Ken Paxton (R) noted that the Supreme Court has said social media sites are gatekeepers of a digital “modern public square.” He said the state law is focused on businesses’ conduct and does not violate the First Amendment, which protects private companies from government regulation of speech.
Because they are the “twenty-first century descendants of telegraph and telephone companies,” the businesses should be treated as “common carriers,” which are subject to government regulation because of the essential nature of the services they offer, Paxton said.
Tech companies aggressively lobbied against the Texas law and similar legislation in other states, and they were initially successful in their legal challenge to the Texas law, as a federal district judge blocked its implementation.
The tech industry has warned that the Texas law opens companies up to new legal threats that could chill their efforts to remove objectionable content including terrorism and violence, such as the recent videos circulating on social media of the Buffalo shooting.
Meanwhile, Texas Gov. Greg Abbott (R) and Republicans who crafted the law have argued that it will prevent conservative viewpoints from being banned on social media.
Alito said the issue deserves the court’s review: “At issue is a ground-breaking Texas law that addresses the power of dominant social media corporations to shape public discussion of the important issues of the day.”
Alito said it is “not at all obvious how our existing precedents, which predate the age of the internet, should apply to large social media companies.” And he said the state deserved to have its law go into effect while it is challenged.
“Texas should not be required to seek preclearance from the federal courts,” Alito wrote.
Kagan’s reluctance to grant relief to the Big Tech companies may have been procedural. The 5th Circuit still has not issued a detailed opinion on why it thinks the Texas law should be implemented.
The Supreme Court’s response was being closely watched by policymakers who are eager to regulate social media, but whose proposals have collided with the free speech protections afforded by the First Amendment.
