- The Texas law would have blocked social media companies from restricting or removing content.
- A federal appeals court in Atlanta blocked enforcement of a similar law in Florida last week.
- Internet trade groups asserted the law would have led to ‘extremist’ material on social platforms.
WASHINGTON – The Supreme Court on Tuesday blocked Texas from enforcing a law banning social media giants like Facebook and Twitter from moderating content – an outcome critics said would have forced “extremist” material onto the platforms.
The Supreme Court’s decision blocks enforcement of the law temporarily while the underlying case continues in lower federal courts.
The 5-4 order was not accompanied by an opinion explaining the decision. Associate Justice Samuel Alito, in a dissent joined by Associate Justices Clarence Thomas and Neil Gorsuch, wrote that it is “not at all obvious how our existing precedents, which predate the age of the internet, should apply to large social media companies.”
In an unusual alignment, Associate Justice Elena Kagan, a member of court’s liberal wing joined the three conservatives in saying she would have allowed the law to be enforced but didn’t explain her reasoning.
Chris Marchese, counsel at NetChoice, one of the internet trade groups that sued over the Texas law, described it as a “constitutional train wreck.”
“We are relieved that the First Amendment, open internet, and the users who rely on it remain protected from Texas’s unconstitutional overreach,” he said.
Texas Gov. Greg Abbott, a Republican, signed a bill last fall that blocked the tech firms from restricting or removing content, a response to unsubstantiated complaints from former President Donald Trump and other conservatives that the sites censor Republican voices because of their viewpoints. Florida passed a similar law last year and enforcement of that measure was also halted by federal courts.
A unanimous three-judge panel of the U.S. Court of Appeals for the 11th Circuit last week blocked enforcement of most of Florida’s law.
“Put simply, with minor exceptions, the government can’t tell a private person or entity what to say or how to say it,” Circuit Judge Kevin Newsom, a Trump nominee, wrote for the court.
Two trade groups that represent the social media companies told the high court in an emergency appeal this month that the law would compel the sites to disseminate “all sorts of objectionable viewpoints,” from Russian propaganda about the invasion of Ukraine to posts encouraging children to adopt unhealthy behavior such as eating disorders.
The groups said the law would “transform the Internet” and would leave their platforms “overrun with spam, vitriol, and graphic content.”
Abbott, Trump and other conservatives have for years asserted that their First Amendment rights are violated when social media posts are labeled or removed or when their accounts are banned for violating the policies of social media platforms. Trump’s suspension from the major platforms inspired the measures.
The Texas governor argued that “social media websites have become our modern-day public square” and claimed last year that there is a “dangerous movement by social media companies to silence conservative viewpoints and ideas.” The companies have denied those claims, saying their policies to curb offensive content are politically neutral.
The trade groups assert that social media platforms are like newspapers and TV stations and that the First Amendment prohibits the government from compelling them to speak. Unlike when the government creates a public forum – say, in a park – and is prohibited from restricting speech in that space based on a speaker’s viewpoint, social media companies said they are private entities and have no such limitation.
Neither Facebook nor Twitter immediately responded to a request for comment.
But that reading of the law has come under fire from some on the right. Thomas last year compared Twitter and other large social media companies to communication utilities, asserting the concentration in the industry gives digital platforms “enormous control over speech.” That analysis, if it gains traction in federal courts, could open the companies up to far more government regulation.
Wrapped up in the debate – though barely mentioned by the lawyers in the case – is a longstanding fight over “Section 230,” a provision of federal law that shields internet companies from lawsuits when they transmit or remove user-generated content. Trump and other conservatives have argued for years that the provision should be repealed.
During his campaign, President Joe Biden also called for Section 230 to be revoked. More recently, the White House has signaled support for “fundamental reforms” to the law. Congressional Democrats have proposed legislation that would preserve much of the law but make it easier for users to sue over certain abusive or threatening content.
A federal district court in Texas blocked enforcement of the law but the New Orleans-based U.S. Court of Appeals for the 5th Circuit put that court’s decision on hold. The trade groups filed an emergency appeal at the Supreme Court seeking to uphold the first decision while lower courts sort out the constitutional questions the Texas law presents.
In his dissent Tuesday, Alito said he hasn’t yet decided how the case should be decided on the merits, but asserted that “Texas should not be required to seek preclearance from the federal courts before its laws go into effect.”