On Tuesday, the Supreme Court issued a 5-4 ruling halting the enforcement of a Texas law that bars social media platforms from censoring accounts based on a user’s viewpoint. The decision came in response to two trade associations’ request for review of an order issued by the Fifth Circuit Court of Appeals last month.
The trade associations, representing major social media platforms, challenged the constitutionality of HB20 in September 2021. The law applies to sites like Facebook, Instagram, WhatsApp, and YouTube and according to Justice Alito’s dissenting opinion, “is a ground-breaking Texas law that addresses the power of dominant social media corporations to shape public discussion of the important issues of the day.”
The trade associations’ multi-claim challenge was largely accepted by the Texas district court who granted their request to halt the law’s enforcement before it took effect. Judge Robert Pitman’s decision affirmed the constitutional principle that private actors are free to exercise editorial judgment without government intervention. The Texas law, the opinion said, cut that freedom back by erecting penalties for platforms that suspend or ban accounts based on user viewpoint.
Two weeks ago, and after full briefing and oral argument, the Fifth Circuit stayed that preliminary injunction in a single-sentence opinion. The trade associations petitioned the Supreme Court to vacate the stay, and a majority of the justices agreed.
This week’s decision acknowledged the gravity of the dispute in granting the applicants’ request for the “extraordinary relief.” However, Justice Alito, joined in dissent by Justices Gorsuch and Thomas, wrote that “[w]hile I can understand the Court’s apparent desire to delay enforcement of HB20 while the appeal is pending, the preliminary injunction entered by the District Court was itself a significant intrusion on state sovereignty, and Texas should not be required to seek preclearance from the federal courts before its laws go into effect.”
The opinion questioned whether the applicants were likely to succeed on the merits of their claims under existing law, pointing to the novelty of both HB20 and trade association members’ business models. Justice Alito also said that the procedural stance of the case counseled against the majority’s decision as pre-enforcement review precludes a clear picture of how state courts would interpret the statute and precisely which platforms it applies to.
The case will now head back to the Fifth Circuit for resolution of the appeal underlying the preliminary injunction.
The trade associations are represented by Kirkland & Ellis LLP and Lehotsky Keller LLP and Attorney General Paxton by his office.
