A man walks on the sidewalk near the US Supreme Court building in Washington, DC, February 16, 2022.
John Cherry Reuters
The Supreme Court on Tuesday blocked the entry into force of a controversial Texas social media law after the technology industry and other opponents warned it could allow hateful content to spread online.
The decision does not rule on the substance of the law, but requires a second order blocking its entry into force while federal courts decide whether it can be enforced. The Supreme Court is likely to be asked to consider the constitutionality of the law in the future.
The HB20 Act prohibits online platforms from moderating or removing content based on perspective. This stems from the general accusation on the right that major California-based social media platforms such as Facebook and Twitter are biased in their moderation strategies and disproportionately quiet conservative voices. The platforms stated that they apply their community guidelines evenly and it often happens that right-wing users rank among the highest in terms of engagement.
“HB20 will force the platforms to spread all sorts of undesirable views,” said two industry groups representing companies, including Amazon, Facebook, Google and Twitter, in an urgent lawsuit, such as Russia’s propaganda that its invasion of Ukraine is justified, ISIS propaganda, which claims that extremism is justified, neo-Nazi or KKK stunts deny or support the Holocaust, and encourage children to engage in risky or unhealthy behaviors, such as eating disorders. “
Texas Attorney General Ken Paxton, a Republican, said this was not the case, writing in response to an emergency request that the law did not “prohibit platforms from removing entire categories of content.”
“For example,” the response said, “platforms may choose to remove pornography without violating HB 20 … Platforms may also ban foreign government speech without violating HB 20, so they are not required to accept Russian propaganda for Ukraine “
In decision 5-4, Judge Samuel Alito disagreed with the decision to lift the suspension, issuing a written explanation for his vote, which was joined by two other Conservative judges, Clarence Thomas and Neil Gorsuch. Liberal Judge Elena Kagan also voted against the release.
Alito’s disagreement began with the recognition of the importance of the case for social media companies and the countries that will regulate how these companies can control the content of their platforms.
“This statement touches on issues of great importance that will obviously deserve review by this court,” Alito wrote. “Social media platforms have transformed the way people communicate with each other and receive news. The issue is Texas’ groundbreaking law, which addresses the power of dominant social media corporations to shape public debate on the important issues of the day.
Alito said he would allow the law to remain in force while the case goes through federal courts. He stressed that “he has not formed a final look at the new legal issues arising from Texas’ decision to deal with the” changing social and economic “conditions it perceives.”
“But that’s exactly why I’m not comfortable interfering at this point in the production,” he wrote. “While I can understand the Court’s apparent desire to postpone the implementation of HB20 while the appeal is pending, the preliminary injunction imposed by the District Court was in itself a significant interference with state sovereignty and Texas should not be required to seek prior permission from federal courts. before its laws come into force. “
The law was passed in September, but was blocked by a lower court, which issued a preliminary ban to prevent it from coming into force. This changed when the Federal District Court of Appeal ruled in mid-May to suspend the order pending a final decision on the case, meaning the law could be passed while the court hears the wider case.
This prompted two groups in the technology industry, NetChoice and the Association of the Computer and Communications Industry (CCIA), to file an urgent petition with Alito, who has been appointed to the case.
NetChoice and CCIA have asked the court to prevent the law from coming into force, arguing that social media companies are making editorial decisions about what content to distribute and show, and that the appellate court’s decision will get rid of that discretion and chilling speech. It says the court must release the stay, as the Court of Appeal is reviewing important issues related to the First Amendment that are central to the case.
The Supreme Court ruling has implications for other states that may be considering legislation similar to that in Texas. The Florida legislature has already passed a similar law on social media, but so far it has been blocked by the courts.
Shortly after an urgent appeal by technology groups to the Texas case, the Eleventh District Federal Court of Appeals upheld an order against a similar law in Florida, unanimously concluding that content moderation is protected by the Constitution. The Florida Attorney General filed a friendly petition on behalf of her state and several others, urging the court to continue to allow Texas law to take effect, arguing that the industry has misinterpreted the law and that states have the right to regulate business in this way.
Test site for Congress
State laws serve as a basis for early testing of ways in which the US Congress is considering reforming the technology platforms it has relied on for years to moderate its services. This law, section 230 of the Communications Decency Act, does not allow online platforms to be held accountable for the content that users post on their services, and also allows them to moderate or remove posts in good faith.
The bill has been criticized by both Democrats and Republicans, but for a variety of reasons. Democrats are seeking to reform the law to give technology platforms more responsibility to moderate what they see as dangerous content, including misinformation. While Republicans agree that some content, such as terrorist recruitment or child sexual exploitation, should be removed, many seek to make it harder for platforms to engage in some other form of moderation they see as ideologically censored.
One of the authors of Section 230, former Christopher Cox Representative, R-California, briefed a friend in support of the industry group’s request to the Supreme Court to lift the suspension. In summary, Cox argues that HB20 is “in irreconcilable conflict” with Section 230, which should precede state law.
However, at least one Supreme Court judge has already expressed interest in reviewing section 230 itself.
In 2020, Conservative Thomas wrote that “where appropriate, we need to consider whether the text of this increasingly important status corresponds to the current state of immunity enjoyed by Internet platforms.”
Last year, he suggested that online platforms could be “sufficiently similar to ordinary carriers or accommodation to be regulated in this way.”
This story is evolving. Check again for updates.
– Dan Mangan from CNBC contributed to this report.
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