Supreme Court blocks Texas law prohibiting social media giants from banning users based on political viewpoint

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The Supreme Court blocked the implementation of House Bill 20, which had been signed into law in September 2021 by Gov. Greg Abbott (R-Texas). The law aimed to curtail “wrongful censorship” by the three largest social media platforms based on political views or content, and was part of an escalation of conservative condemnation of Silicon Valley.

Key Players

Greg Abbott has been Texas governor since 2015, after serving as the state’s attorney general from 2002 to 2015. As governor, he has aligned himself with former President Donald Trump and supported his demands for state audits of the 2020 general election. 

Social media giants Facebook, Google, and Twitter were the targets of the Texas bill, which applied only to companies with more than 50 million active monthly users. Trump also sued the three companies on July 7, 2021, claiming their removal of his accounts amounted to censorship. For years, some have claimed that these sites have an anti-conservative bias. 

Further Details

The law required that the tech companies be more transparent about their enforcement of guidelines, such as creating public reports on illegal or policy-violating content and developing a complaint system in which people can challenge removed or flagged content. 

Abbott did not mince words when discussing whom the bill was designed to protect. Immediately after signing the bill, he said, “It is now law that conservative viewpoints in Texas cannot be banned on social media.” 

Similarly, in May 2021, Gov. Ron DeSantis (R) of Florida signed a law that would prevent social media companies from banning political candidates from their platforms during the run-up to elections. In June 2021, a federal judge struck down the Florida law, suggesting it would be found unconstitutional if tech industry groups were to challenge it legally, according to The Washington Post.  

According to Eric Goldman, a professor at Santa Clara University School of Law, the Texas bill would be dead on arrival. “Even if it’s struck down, it’s a symptom of a much bigger structural problem we have in the country that politicians think this is how they should be spending their time,” Goldman told The Post.

Adam Kovacevich, CEO of the Chamber of Progress, a tech industry coalition, said the law would surely be ruled unconstitutional, “but Republicans won’t pay any price because they view it as good politics. … It’s going to keep heading into a First Amendment buzz saw.”

On Sept. 22, 2021, NetChoice, a trade association that works to “make the Internet safe for free enterprise and free expression,” and the Computer and Communications Industry Association (CCIA), an international nonprofit representing information and communications technology industries, sued Texas over the law.

According to NetChoice, “Internet platforms have a First Amendment right to curate content and decide whether to host specific kinds of speech,” and the law empowers Texas to “police and control speech online, violating the First Amendment rights of online businesses.”

John Villasenor, of the Brookings Institution, believed NetChoice and CCIA had strong arguments against the law. “Social media companies are private entities,” Villasenor said, “and as such there is extensive First Amendment jurisprudence (and a statute: Section 230) supporting their right to make content decisions as they see fit. That right includes the flexibility to make content decisions that reflect, or are perceived to reflect, political bias.”

On Dec. 1, 2021, Judge Robert Pitman of U.S. District Court in Austin blocked the law, writing that social media platforms have a First Amendment right to moderate content as they see fit, granting the injunction sought by NetChoice and the CCIA, which will put H.B. 20 on hold until the conclusion of the case.

“This Court is convinced that social media platforms,” Pittman wrote, “or at least those covered by [House Bill] 20, curate both users and content to convey a message about the type of community the platform seeks to foster and, as such, exercise editorial discretion over their platform’s content.” 

Pittman was appointed to the federal bench by former President Barack Obama in June 2014.

Outcome

Appellate court allows social media law to take effect

On May 11, 2022, after Texas appealed Pitman’s ruling, the U.S. Court of Appeals for the Fifth Circuit ruled that the law could go into effect. 

According to the Austin American-Statesman, the one sentence order went unexplained, and was split 2-1. The order did not indicate how each of the three judges on the appellate panel had voted. 

Paxton called the ruling a “big win against Big Tech.”

Two days later, NetChoice and CCIA filed an emergency application to the Supreme Court, writing that the law “is a content-, viewpoint-, and speaker-based law that would eviscerate editorial discretion and impermissibly compel and chill speech by targeted, disfavored ‘social media platforms.'” 

SCOTUS goes against appeals court, blocks social media law

On May 31, 2022, SCOTUS voted 5-4 to block HB 20, Axios reported.

Justices Amy Coney Barrett, Stephen Breyer, Sonia Sotomayor, Brett Kavanaugh and Chief Justice John Roberts voted to reinstate the district court’s injunction, preventing the law from taking effect. 

Justices Neil Gorsuch, Elena Kagan, Samuel Alito and Clarence Thomas voted against this decision. In Alioto’s dissent, he argued that it was “not at all obvious how our existing precedents, which predate the age of the internet, should apply to large social media companies.”

After the ruling, NetChoice celebrated the win, but noted the ruling meant it was only “halfway there” as the case heads back to federal district court, where arguments on both sides will be made on the merits of the law, TechCrunch reported. 

“Texas’s HB 20 is a constitutional trainwreck,” said Chris Marchese, of NetChoice’s policy counsel. “We are relieved that the First Amendment, open internet, and the users who rely on it remain protected from Texas’s unconstitutional overreach.”

As of June 10, 2022, there were no further developments.