Supreme Court blocks Texas social media law opposed by technology industry

A man walks on the sidewalk near the U.S. Supreme Court building in Washington, DC, February 16, 2022.

John Cherry Reuters

The Supreme Court on Tuesday blocked the entry into force of Texas’ controversial social media law after the tech industry and other opponents warned it could allow the spread of hated content online.

The decision does not make a decision on the substance of the law, but renews the ban, which blocks its entry into force until federal courts decide whether it can be enforced. The Supreme Court is likely to be asked in the future to look at the constitutionality of the law.

Five judges in court have voted to block the law so far. Judge Samuel Alita issued a written disagreement with the decision, which was joined by two other conservative judges, Clarence Thomas and Neil Gorsach. Judge Elena Kagan, a liberal, also voted to keep the law in force while it is challenged.

The HB20 Act prohibits online platforms from moderating or deleting content based on perspective. It follows from the general accusation case that major California social networks such as Facebook and Twitter are biased in their moderation strategies and disproportionately quiet conservative voices. The platforms stated that they evenly apply their community principles, and users of the right slope often occupy one of the highest places in terms of activity.

Two industry groups representing technology companies, including Amazon, Facebook, Google and Twitter, said in an emergency statement to the court, “HB20 will force platforms to spread a variety of nasty views, such as Russia’s propaganda claiming its invasion of Ukraine is justified , ISIS propaganda that claims extremism is justified, neo-Nazis or the KKK denies or supports the Holocaust and encourages 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 can decide to eliminate pornography without violating HB 20 … Platforms can also ban foreign governments from violating HB 20, so they are not required to post Russian propaganda about Ukraine.” .

Alita’s disagreement opened with the recognition of the importance of the case for social media companies and for the states that will regulate how these companies can control content on their platforms.

“This statement concerns issues of great importance that clearly deserve consideration in this court,” Alita wrote. “Social networking platforms have changed the way people communicate with each other and receive news. The point is that Texas is pioneering a law that addresses the ability of dominant social media corporations to shape public discussion of important issues of the day.”

Alita said he would allow the law to remain in force as long as 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 address the “changing social and economic” conditions he is experiencing ”.

“But it is because of this that I am not comfortable interfering at this point in the process,” he wrote. Although I can understand the Court’s clear desire to postpone HB20 pending an appeal, a previous injunction imposed by the district court in itself became a significant interference with state sovereignty, and Texas should not have been required to appeal to federal courts before its laws. come into force. “

Where things stand now

The law was passed in September, but was blocked by a lower court, which issued a preliminary ban preventing it from coming into force. That changed when the federal district court of fifth instance ruled to postpone the ban until a final decision on the case, meaning the law could be passed while the court is considering a broader issue.

This prompted two technology industry groups, NetChoice and the Association of the Computer and Communications Industry (CCIA), to file an emergency petition to Alita, who deals with matters from the area.

NetChoice and CCIA have asked the court not to allow the law to take effect, arguing that social media companies make editorial decisions about what content to distribute and show, and that the appellate court’s decision will rid it of that opinion and cooling. It states that the court must annul the time limit when the appellate court considers important issues of the First Amendment that are central to the case.

“Texas HB 20 is a constitutional train wreck – or, as the district court put it, an example of burning a house to roast a pig,” said Chris Marchez, a NetChoice lawyer, in response to the ruling Tuesday. “We are pleased that the First Amendment, the open Internet and users who rely on it, remain protected from the unconstitutional encroachment of Texas.”

“No online platform, website or newspaper should be run by government officials to deliver certain speeches,” said CCIA President Matt Schrewer. “This has been a key principle of our democracy for over 200 years, and the Supreme Court has upheld it.”

The Supreme Court ruling has implications for other states that may consider 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 emergency appeal by technical groups in the Texas case, the Eleventh District Federal Court of Appeals upheld a ban against a similar law in Florida, unanimously concluding that content moderation is protected by the Constitution. The Florida Attorney General has filed a statement on behalf of his state and several others, urging the court to continue to operate Texas law, arguing that the industry has misinterpreted the law and that states have the right to regulate business in this way.

A testing ground for Congress

State laws serve as a platform for early testing of the ways in which the U.S. Congress is considering reforming technology platforms to protect against legal liability that it has relied on for years to moderate its services. This law, section 230 of the Law on Decency in Communication, relieves the Internet platform of responsibility for the content that users post in their services, and also allows them to moderately or delete messages.

The law 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 for moderating what they consider dangerous content, including misinformation. While Republicans agree that certain types of content, such as terrorist recruitment or child sexual exploitation, should be removed, many seek to complicate platforms for some other forms of moderation that they view as ideological censorship.

One of the authors of Chapter 230, former MP Christopher Cox, California, filed a friendly court statement in support of the industry group’s request to the Supreme Court to overturn the adjournment. In a nutshell, 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 revising Section 230 itself.

In 2020, Conservative Thomas wrote that “where appropriate, we need to consider whether the text of this increasingly important statute is in line with the current state of immunity enjoyed by online platforms.”

Last year, he suggested that online platforms could be “quite similar to conventional carriers or locations that will be regulated in this way.”

– Dan Mangan from CNBC contributed to this report.

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Supreme Court blocks Texas social media law opposed by technology industry

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