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Supreme Court urged to block “shocking” reinstatement of Texas social media law


The US Supreme Court Building seen during daytime.
Enlarge / The US Supreme Court building.

Getty Images | Grant Faint

Big Tech lobby groups have asked the US Supreme Court to block a Texas state law that prohibits social media companies from moderating content based on a user’s “viewpoint.”

The state’s so-called “censorship” law was previously blocked by a federal judge who ruled that it violates the social networks’ First Amendment right to moderate user-submitted content. But the law was reinstated last week by the US Court of Appeals for the Fifth Circuit, which granted Texas Attorney General Ken Paxton’s motion to stay the preliminary injunction.

The Fifth Circuit ruling came in a majority vote of three judges. Instead of seeking an en banc hearing with all the Fifth Circuit court’s judges, two tech groups submitted an emergency application to the Supreme Court on Friday. The appeal was filed by NetChoice and the Computer & Communications & Industry Association (CCIA), which represent companies including Amazon, eBay, Facebook, Google, Twitter, and Yahoo.

“The divided panel’s shocking decision to green-light an unconstitutional law—without explanation—demanded the extraordinary response of seeking emergency Supreme Court intervention,” NetChoice Counsel Chris Marchese said.

The emergency application was directed to Justice Samuel Alito, who is assigned to the Fifth Circuit. “Under Court procedures, Justice Alito may rule unilaterally or refer the matter to the full Court for consideration,” NetChoice said.

Court’s “one-sentence order explains nothing”

NetChoice and CCIA told the Supreme Court that the Texas statute “is a flatly unconstitutional law that compels government-preferred speech from select private entities and would require enormous upheaval to the worldwide operations of covered Internet websites.” The brief also warns that the law “is an invitation for lawsuits into platforms’ editorial judgments” and will let Texas be “the ultimate arbiter of how platforms should apply their policies.” Pointing out specific services the law applies to, the brief calls it “an unprecedented assault on the editorial discretion of private websites (like Facebook.com, Instagram.com, Pinterest.com, Twitter.com, Vimeo.com, and YouTube.com) that would fundamentally transform their business models and services.”

The Fifth Circuit appeals court ruling in Texas’ favor did not explain the judges’ reasons for staying the injunction. The Supreme Court brief filed by NetChoice and CCIA said the “panel majority granted Defendant’s five-month-old stay motion in a one-line order without any explanation or reasoning—although a footnote stated, ‘The panel is not unanimous.'”

Noting similarities between the Texas law and one in Florida that was also blocked by a US District Court judge, the tech groups wrote:

Last year, both Texas and Florida embarked on an unprecedented effort to override the editorial discretion of social media platforms and to compel them to disseminate a plethora of speech the platforms deem objectionable and antithetical to the speech they want to present to users (and advertisers). Both laws are an undisguised effort to level the speech playing field and control “Big Tech.” To that end, both laws override editorial discretion and compel speech—imposing their burdens only on selected speakers and carving out favored content. In short, the laws defy established First Amendment doctrine by taking virtually every action forbidden to state actors by the First Amendment.





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