Two technology trade groups came to the Supreme Court on Friday night, asking the justices to block a controversial Texas law that bars large social media platforms like Facebook and Twitter from moderating speech based on the viewpoints of their users. Describing the law as an “undisguised effort to level the speech playing field and control ‘Big Tech,’” the groups urged the court to reinstate a decision by a federal district judge in Texas that barred the state from enforcing the law.
Texas Gov. Greg Abbott signed the law, known as H.B. 20, last September, and it was slated to go into effect on Dec. 2, 2021. But the two trade groups, NetChoice and the Computer and Communications Industry Association, went to federal court in Texas, where U.S. District Judge Robert Pittman on Dec. 1 issued an order prohibiting the state from implementing the law.
On Wednesday, a divided panel of the U.S. Court of Appeals for the 5th Circuit issued a one-sentence order in which it lifted Pittman’s injunction, clearing the way for the state to enforce the law.
Represented by two former Texas solicitors general, Scott Keller and Kyle Hawkins, as well as Paul Clement, who served as the U.S. solicitor general during the George W. Bush administration, the trade groups told the justices that H.B. 20 violates “bedrock First Amendment principles established by” the Supreme Court, which has “repeatedly recognized that private entities” – including websites – “have the right under the First Amendment to determine whether and how to disseminate speech.” Indeed, they suggested, “the entire impetus” for the law “was that Texas did not like how platforms were exercising” their editorial discretion “to remove or refrain from disseminating certain speech.” In his official signing statement, the groups noted, Abbott specifically stressed that it “is now law that conservative viewpoints in Texas cannot be banned on social media.”
Allowing the law to go into effect, the groups contended, will impose substantial costs on social media companies, requiring them to revamp how they operate. Moreover, they added, the companies will lose money, as advertisers will pull their ads rather than have them appear “next to vile, objectionable expression” such as Russian propaganda or Holocaust deniers, which the platforms will be obligated to permit under the law.
The groups also cited the cursory nature of the 5th Circuit’s order reinstating the law as another reason to put the order on hold while their challenge, as well as a challenge to a similar law in Florida, plays out. “Whether or not this Court ultimately agrees or disagrees,” the groups concluded, “Texas should not be allowed to transform the Internet before a single judge explains why Texas’s effort complies with the First Amendment.”
Justice Samuel Alito on Saturday morning directed Texas to file its response to the groups’ request by 5 p.m. on Wednesday, May 18.
This post is also published on SCOTUSblog.