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Court Pauses Texas Free Speech Law Pending Appeal


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A federal court has paused a Texas law pertaining to social media from going into effect, allowing time for an appeal to the Supreme Court.

On October 12, the 5th U.S. Circuit Court of Appeals issued a temporary stay regarding Texas H.B. 20, a 2021 law that would prevent large social platforms like Twitter and Facebook from engaging in “censorship of or certain other interference with digital expression.”

The staying order will give the petitioners, NetChoice and the Computer and Communications Industry Association (CCIA), time to file an appeal with the Supreme Court in order to challenge the 5th Circuit’s previous decision, which upheld H.B. 20.

The groups must file the petition with the Supreme Court by December.

Matt Schruers, the president of CCIA, applauded the stay, suggesting that “This ruling means Texas’s unconstitutional law will not be in force as the issue of government-compelled dissemination of speech makes its way to the Supreme Court. We are confident these laws will not stand.”

This is not the first time the case has seen the Supreme Court docket, however, and the legal battle surrounding H.B. 20 has taken it through several stages, bouncing from a district court, to the 5th Circuit, to the Supreme Court, back down to the 5th Circuit, and now likely up to the highest court once again.

After the law was passed, the internet advocacy groups NetChoice and CCIA sued and received a preliminary injunction order from the U.S. District Court governing the Western District of Texas in December of 2021.

The district court suggested that the law was “replete with constitutional defects, including unconstitutional content- and speaker-based infringement on editorial discretion.”

The state of Texas appealed the decision up to the 5th Circuit Court which issued a stay of the temporary injunction in May 2022, allowing the law to go back into effect pending an initial appeal to the Supreme Court.

The petitioners did appeal, asking the court to reverse the stay and thereby reinstate the original injunction by the district court.

In a 5-4 decision, the Supreme Court chose to vacate the stay, sending the case back to the 5th Circuit in order to be heard on the merits.

Justice Samuel Alito, along with Clarence Thomas and Neil Gorsuch, dissented, claiming that to stop the law from going into effect was “a significant intrusion on state sovereignty, and Texas should not be required to seek preclearance from the federal courts before its laws go into effect.”

Justice Elena Kagan also voted not to vacate the stay but did not join the others in their dissent.

In September, the 5th Circuit considered the case on its merits and decided that the law does not infringe upon the 1st Amendment rights of the social media companies but rather protects the 1st Amendment rights of individuals.

Calling the arguments of NetChoice and the CCIA a “rather odd inversion of the First Amendment,” the 5th Circuit denied the idea “that buried somewhere in the person’s enumerated right to free speech lies a corporation’s unenumerated right to muzzle speech.

“Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say. Because the district court held otherwise, we reverse its injunction and remand for further proceedings,” the circuit court continued.

Texas Attorney General Ken Paxton celebrated the decision from the 5th Circuit, explaining, “Big Tech’s reign of endless censorship and their suppression of conservative viewpoints is coming to an end. … HB 20 was designed to protect every Texan wanting to fully express his or her First Amendment rights, and the court made the right decision in upholding the law.”

Net Choice and CCIA have confirmed that they will appeal to the Supreme Court, which will have the opportunity to consider the case more fully than the last time it reached their docket. Carl Szabo, the Vice President of NetChoice, explained, “We remain convinced that when the U.S. Supreme Court hears one of our cases, it will uphold the First Amendment rights of websites, platforms, and apps.”

The 5th Circuit’s recent temporary injunction against the enforcement of the law does not reverse its earlier decision to support the law but instead allows NetChoice and CCIA to make their appeal before the law takes effect.

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1 month ago

Calling the arguments of NetChoice and the CCIA a “rather odd inversion of the First Amendment,” the 5th Circuit denied the idea “that buried somewhere in the person’s enumerated right to free speech lies a corporation’s unenumerated right to muzzle speech.” cuts to the heart of the matter.