The Fifth Circuit lifted an injunction on the law Wednesday pending appeal, offering no opinion laying out their decision.
“The divided panel’s shocking decision to greenlight an unconstitutional law—without explanation—demanded the extraordinary response of seeking emergency Supreme Court intervention,” Chris Marchese, counsel for NetChoice, told Protocol.
The Texas law, HB 20, prohibits social media platforms with more than 50 million users in the U.S. from moderating content on the basis of “viewpoint,” but that term is not well-defined and creates catastrophic new liability for tech platforms serving Texas. The law also, not coincidentally, contains provisions that aim to prohibit tech platforms from walling off their services in Texas altogether.
NetChoice and CCIA argue that the Texas law is unconstitutional, because it essentially amounts to the government compelling private businesses to carry speech they otherwise would remove. “The First Amendment prohibits Texas from forcing online platforms to host and promote foreign propaganda, pornography, pro-Nazi speech, and spam,” Marchese said. “Left standing, Texas HB 20 will turn the First Amendment on its head—to violate free speech, the government need only claim to be ‘protecting’ it.”
The emergency order doesn’t seek a final ruling on the underlying law, HB 20, but rather asks the Supreme Court to reinstate the injunction on the law, while the appeals case proceeds through the Fifth Circuit. The groups are arguing that denial of their request could cause “irreparable harm” to businesses covered by the law. That includes tech giants like Meta, YouTube and Twitter among others.
The Texas law declares that these platforms are common carriers and therefore can be subject to these speech requirements. Texas lawmakers aren’t alone in making that comparison. Justice Clarence Thomas has also flirted with the idea in a series of statements, where he has called on the court to rein in Section 230 protections and reconsider whether tech platforms are really so different from phone companies.
“A traditional telephone company laid physical wires to create a network connecting people,” Thomas wrote last year. “Digital platforms lay information infrastructure that can be controlled in much the same way.”
But forcing tech platforms to carry all, or even most, legal speech no matter how vile, risks turning them into even deeper cesspools of spam, pornography, hate speech and gore than they already are.
The Texas case could now be decided on the court’s shadow docket, through which it issues orders without hearing arguments. The decision of whether to take up the case in this way is now up to Justice Samuel Alito, who is assigned to the Fifth Circuit. He will decide whether to rule unilaterally or refer the case to the full court. If the court does take up the case, the decision could come within days.
While it’s historically rare for the Supreme Court to intervene in a case while it’s still pending appeal, experts on the shadow docket say that’s beginning to change, particularly when it comes to cases with the potential to have a huge impact. “The reality here is that the Fifth Circuit stay is going to create such an immediate impact that it’s going to be hard for the court to think that it’s appropriate to wait,” Steve Vladeck, a University of Texas at Austin law professor and author of the forthcoming book The Shadow Docket, told Protocol earlier this week.