NPR’s Nina Totenberg (“Supreme Court blocks Texas social media law from taking effect“):
The U.S. Supreme Court on Tuesday blocked a Texas social media law from taking effect that intended to punish online platforms for removing political speech.
The vote was 5-to-4, with the court’s three most conservative justices filing a written dissent that would have allowed the Texas law to start. In a surprise move, liberal Justice Elena Kagan joined in the dissent, but she did not explain her rationale.
The Texas law bars Instagram, Facebook, Twitter and other popular social media sites from blocking content based on viewpoint. Gov. Greg Abbott maintained that the law was a justifiable response to “a dangerous movement by social media companies to silence conservative viewpoints and ideas.”
A federal district court temporarily halted state officials from enforcing the law, saying it likely violates the First Amendment. But a divided panel of the 5th U.S. Circuit Court of Appeals allowed enforcement to proceed.
The Big Tech interest groups NetChoice and the Computer & Communications Industry Association, filed an emergency request to block the law after the U.S. Court of Appeals for the 5th Circuit overturned a lower court ruling that enjoined it from taking effect.
The groups argued the law would force tech platforms to leave up everything from Russian propaganda to neo-Nazi and Ku Klux Klan screeds. The groups maintained that the Constitution protects their right to manage platform content, just as it protects a newspaper’s publication decisions.
SCOTUSBlog’s Amy Howe (“Divided court blocks Texas from enforcing social media law“) adds:
The majority did not explain the reasoning behind its brief order. Alito wrote a six-page dissent arguing that the court’s intervention to block the law is premature. Thomas and Gorsuch joined that dissent. Kagan did not join Alito’s opinion, but she separately indicated that she, too, would have allowed the law to take effect. She did not elaborate on her thinking.
The law at the center of the dispute is known as H.B. 20. It prohibits social media platforms with at least 50 million active users from blocking, removing, or “demonetizing” content based on the users’ views. When Texas Gov. Greg Abbott signed the law last September, he declared that “conservative viewpoints in Texas cannot be banned on social media.” Tech companies challenged the law, saying it violates their First Amendment right to control what speech appears on their platforms. They also said the law would prevent them from removing hate speech, political disinformation, violent videos, and other harmful content.
[…]
In a brief, unsigned order, the Supreme Court granted the technology groups’ request to reinstate Pittman’s injunction, meaning Texas cannot enforce the law while litigation continues in the lower courts.
In his dissent, Alito explained that the court should not reinstate Pittman’s injunction unless the technology groups can show that, under existing law, they are likely to prevail on the merits of their challenge. But whether the groups can make that showing, Alito suggested, “is quite unclear,” because both the law and the business models for social media platforms are “novel.”
Alito emphasized that he had not “formed a definitive view on the novel legal questions that arise from Texas’s 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 point in the proceedings.”
Florida has a similar law that seeks to regulate social media companies’ content-moderation policies. It aims to prevent platforms from banning users based on their political ideology. Last week, the U.S. Court of Appeals for the 11th Circuit blocked Florida from enforcing the law, reasoning that it likely violates the First Amendment.
It’s worth emphasizing that this isn’t a final ruling on the merits but a decision on whether to allow the law to go into effect while the litigation sorts itself out. I haven’t had time to—and likely won’t—read Alito’s dissent but, judging from Howe’s reporting, it appears to have hinged on the technical matter of whether the “likely to prevail” threshold had been reached, not on support for the law itself.
On the merits, I’m inclined to believe the law is prima facie unconstitutional. Most obviously, as the media companies themselves argued, they almost certainly have a 1st Amendment right to remove objectionable content from their sites and to judge for themselves what constitutes “objectionable content.” Secondarily, to the extent that the platforms should be regulated, it strikes me that it’s within the purview of the Federal government, not the several states.
That said, as I’ve noted in previous posts, I do think we’ve reached the point where Twitter and Facebook, in particular, have crossed a threshold that might invite regulation as common carriers. They are, at least for certain elite communities, all but essential venues. Journalists and political influencers, in particular, are seriously handicapped without access to Twitter.
While I think they’ve gone about it the wrong way, Texas and Florida Republicans are responding to a real problem. But, to the extent it’s regulable, it should be Congress and the FCC, not state legislatures, that set the parameters.
