A divided U.S. Supreme Court on Tuesday temporarily blocked a Texas law (HB20) that would ban social media platforms—like Facebook, Twitter, and YouTube—from moderating their content.
The Texas law in question, HB20, in part, prohibits social media platforms from “censoring” the viewpoints posted by users. In effect, the law makes it illegal for social media platforms to take down content posted by viewers, whether they are extreme political views, inaccurate information on health and welfare topics, or what might be considered hate speech.
See Related Article: “SEC Investigating Elon Musk’s Twitter Disclosures”
While the Supreme Court did not rule on the merits of the law, it upheld a lower court ruling suspending the law from taking effect while the courts weigh in on its constitutionality. Legal experts say it’s likely the Supreme Court will be called on in the future to ultimately decide the law’s fate.
Private Company Rights
Critics of HB 20 argue that HB20 violates the First Amendment and specifically the right of social media companies to monitor what can appear on their platforms, and that the law would prevent them from removing hate speech, violent videos, dangerous misinformation, and other harmful content.
Texas Attorney General Ken Paxton has argued the law does not violate the companies’ First Amendment rights. Proponents of the law say it prevents large technology companies from using bias in their moderation strategies and disproportionately silencing conservative views.
In December 2021—just one day before the law was slated to take effect—U.S. District Judge Robert Pittman U.S. District Court of the Eastern District of Texas issued a court order, barring Texas from implementing HB20. “Since the State lacks a compelling state interest for HB20, the State will not be harmed,” Judge Pittman stated in the ruling. “Finally, courts have found that ‘injunctions protecting First Amendment freedoms are always in the public interest.’ In this case, content moderation and curation will benefit users and the public by reducing harmful content and providing a safe, useful service.”
Texas appealed to the U.S. Court of Appeals for the 5th Circuit and won. The Fifth Circuit did not provide a reasoning behind its one-sentence, May 11 court order. Two advocacy groups representing the technology industry—Netchoice and the Computer and Communications Industry Association (CCIA)—filed emergency applications to stay the 5th Circuit decision.
‘Issues of Great Importance’
On May 31, in a 5-4 decision in Netchoice v. Paxton, the Supreme Court granted the stay without providing any reasoning behind its decision. The justices that made up the majority vote were Chief Justice John Roberts, Stephen Breyer, Brett Kavanaugh, Amy Coney Barrett, and Sonia Sotomayor.
Justices Elena Kagan, Samuel Alito, Clarence Thomas, and Neil Gorsuch disagreed with the majority. In a dissenting opinion, Alito noted that the case “concerns issues of great importance” and addresses a “ground-breaking Texas law that addresses the power of dominant social media corporations to shape public discussion of the important issues of the day.”
What’s Next for HB20?
Alito stressed that he has “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, I am not comfortable intervening at this point in the proceedings.”
The outcome of the case has nationwide ramifications in the balance. A group of states, led by Florida, defended the Texas law.
In a statement, NetChoice celebrated the win. “While today’s victory is welcome news, we’re only halfway there—our case will soon return to the district court, where we’ll proceed to arguments on the merits. And as this case proceeds, we await a ruling from the 11th Circuit in our parallel case against the state of Florida.” 
Jaclyn Jaeger is a contributing editor at Compliance Chief 360° and a freelance business writer based in Manchester, New Hampshire.