On May 31, 2022, the United States Supreme Court temporarily blocked a Texas state law that bars online platforms from moderating or removing content based on viewpoint. The law was passed in September 2021, then blocked by a lower court until the United States Fifth Circuit Court of Appeals ruled, on May 11, 2022, that it can go into effect. The Supreme Court reversed the decision made by the Court of Appeals, putting implementation of the law on hold again.
The measure known as HB20 put major tech companies such as Meta Platforms, Inc. (FB), Alphabet Inc. (GOOGL, GOOG), and Twitter Inc. (TWTR) at heightened risk of costly litigation. Meta is the parent of Facebook and Alphabet is the parent of Google and YouTube. That law prohibits any social media platform with 50 million or more monthly users in the United States to "block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression."
- A controversial Texas social media law, HB20, has been blocked temporarily by the U.S. Supreme Court, in a ruling issued on May 31, 2022.
- Passed in September 2021, the law was blocked by a federal District court, then allowed to go into effect by a federal appeals court on May 11, 2022.
- Whether HB20, as well as similar laws in other states such as Florida, can ever take effect depends on how current court cases are decided.
- Meanwhile, Section 230 of the Communications Decency Act, under which platforms cannot be held responsible for most user-generated content, may be revised by Congress.
Texas law HB20 arose out of longstanding Republican criticism that tech platforms allegedly discriminate against politically conservative users. The Computer & Communications Industry Association (CCIA) and tech lobbying organization NetChoice have countered that HB20 infringes on the First Amendment rights of its member companies, while also "compel[ing] platforms to disseminate all sorts of objectionable viewpoints."
In his response to the original application to the Supreme Court, Texas Attorney General Ken Paxton, a Republican, argued that "the law does not “prohibit the platforms from removing entire categories of content.” He added, "the platforms can decide to eliminate pornography without violating HB 20 ... The platforms can also ban foreign government speech without violating HB 20, so they are not required to host Russia’s propaganda about Ukraine.”
Justice Alito's Dissenting Opinion
The Supreme Court passed its injunction against HB20 by a vote of 5-4. Justice Samuel Alito issued a written dissent from the decision, which was joined by Justices Clarence Thomas and Neil Gorsuch. Justice Kagan also voted against halting the law, but did not join Alito's dissent. Alito wrote, in part: “Social media platforms have transformed the way people communicate with each other and obtain news. At issue 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.”
Alito indicated that he has “not formed a definitive view on the novel legal questions" raised by HB20. However, he is concerned that the preliminary injunction against HB20 that was issued by a federal district court in 2021 "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 Supreme Court’s decision on HB20 has implications for the ability of other states to pass and enforce similar legislation. Indeed, a similar social media law passed in Florida has been blocked by the courts.
Meanwhile, the U.S. Congress is considering changes to Section 230 of the Communications Decency Act. This piece of legislation keeps online platforms from being held responsible for content that users post and it also gives them the ability to moderate or remove posts in good faith.