At the end of last month, the U.S. Supreme Court blocked a Texas social media law by a single vote from going into effect that was designed to penalize online platforms for removing content based on political opinions.
The Texas law prohibits platforms such as Facebook, Instagram, Twitter, YouTube, and TikTok from blocking content based on viewpoint. This statute further requires social media companies to provide procedures that users can follow to appeal a decision by the platform to remove content. The law applies to platforms with more than 50 million active monthly users.
The judgment did not consider the merits of the law, known as HB20, but reimposes an injunction stopping it from taking effect while federal courts determine whether it can be implemented.
In December, Judge Robert Pitman of the Federal District Court in Austin issued a preliminary injunction blocking the law.
Judge Pitman wrote, “Social media companies have a First Amendment right to moderate content disseminated on their platforms.”
On May 9, Texas argued for an appeal in the U.S. Court of Appeals for the Fifth Circuit. Two days later, a court’s three-judge panel stayed Judge Pitman’s injunction, but the decision was appealed to the Supreme Court, which suspended the law pending a full review in the 5th Circuit.
The panel has not yet issued a directive on the merits of the appeal.
In their emergency application to the Supreme Court, the trade organizations challenging the law, NetChoice and the Computer & Communications Industry Association, argued that social media content moderation guidelines were essential to their identities and goals.
“Without these policies,” the plaintiffs wrote, “these websites would become barnacled with slurs, pornography, spam and material harmful to children.”
Justice Alito said he was uncertain that social media companies should have editorial control guarded by the First Amendment.
“It is not at all obvious,” he wrote, “how our existing precedents, which predate the age of the internet, should apply to large social media companies.”
Texas Senator Bryan Hughes, who sponsored the bill, says it would fight Silicon Valley censorship, citing major social media companies removing posts voicing conservative opinions.
The Texas case will likely return to the Supreme Court since the Fifth Circuit panel appears ready to uphold the legislation. If that happens, such a ruling would negate a judgment by the Eleventh Circuit Court of Appeals, paving the way for the Supreme Court to settle the dispute.
