On Tuesday the Supreme Court of the United States blocked Texas social media bill H.B. 20 by a narrow margin.
The 5-4 decision was in response to an emergency action to vacate the Fifth Circuit Court of Appeals’ previous reversal of a stay placed on the bill by a federal district court in Texas.
The bill was Texas Republicans’ apparent response to President Donald Trump’s seemingly coordinated ban from most large social media platforms in the wake of the Capitol Riots on January 6; the bill would disallow social media platforms with more than 50 million active monthly users from deleting, banning, or blocking user content on the bases of beliefs or views.
Advocates of the bill argue that these social media platforms do not moderate their content in good faith and are actively trying to stifle conservative views.
Though the justices that voted affirmatively did not draft a brief outlining their reasoning, the bill’s critics often argue that such a bill would unconstitutionally compel the speech of a private entity at the hands of the government.
Notably, Justice Elena Kagan – who typically aligns with the most liberal justices on the bench – agreed with Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas that the law should be allowed to stand, though she declined to sign onto Alito’s penned dissent or further qualify her position.
Kagan’s decision to align her vote with the dissent should not necessarily be taken at face value. She has long maintained her distaste for the Supreme Court’s use of the “shadow docket –” whereby the court circumvents ordinary procedure and immediately addresses a case, usually with brief opinions.
“Today’s decision is one more in a disconcertingly long line of cases in which this Court uses its shadow docket to signal or make changes in the law, without anything approaching full briefing and argument,” Kagan wrote in her February dissent to John H. Merrill, Alabama Secretary of State, et al v. Evan Milligan, et al.
In her dissent, she noted that though there may be valid concurring arguments to be made, they could “properly happen only after full briefing and argument – not based on the scanty review this Court gives matters on its shadow docket.”
It stands to reason that Kagan’s dissent in the matter of H.B. 20 could have been based on a principled objection to the use of the shadow docket rather than on the issues being discussed.
Alito’s dissent hinged on three points: he drew a distinction between compelling speech (which would be unconstitutional) and discrimination against speech “on the basis of viewpoint;” he argued that the platforms targeted would not be understood to endorse the messages its users share; he stated that because the bill only applies to platforms with more than 50 million active monthly users, it only applies to platforms with “some measure of common carrier-like market power.”
The Supreme Court does not have a strictly consistent record on how they rule about the rights of organizations to refuse to host the speech of others, and Alito acknowledges as much in his dissent.
“Under some circumstances, we have recognized the right of organizations to refuse to host the speech of others,” he wrote, “But we have rejected such claims in other circumstances.”
Justices John Roberts, Stephen Breyer, Sonya Sotomayor, Brett Kavanaugh, and Amy Coney Barrett sided with NetChoice LLC, the organization that brought about the emergency application to block the Texas law.
“The government cannot force American businesses to host and spread a mass murderer’s vile manifesto, Putin’s anti-West propaganda, or an antisemite’s Holocaust denial,” NetChoice Counsel Chris Marchese said in a statement following the announcement of the ruling.In their broader statement, NetChoice also recognized that this victory was not the end of the road and that they would not return to the district court for arguments on the merits.
H.B. 20 only represents one such bill meant to address the perceived censorship of conservative viewpoints on large social media platforms. Florida’s S.B. 7072 also hangs in the balance; the bill would prohibit social media websites from deplatforming political candidates and is currently also being challenged by NetChoice. On May 23, an appeals court upheld a lower court’s injunction against the bill, freezing its implementation.
The Anti-Defamation League filed a joint amicus brief alongside the National Association for the Advancement of Colored People, the Consumer Technology Association, Progress Chamber, and more than a dozen other groups.
In it, the amici argued that “HB20 decimates platforms’ efforts to effectively and usefully curate content” — an ability they said is necessary to foster an online community.
“Achieving content moderation at the scale of these online platforms is a herculean task,” the brief read, referencing the billions of pieces of content removed every year for violating platform policies.
The amici said that H.B. 20 would undo all the unique ways companies have found to moderate their content, “essentially [eliminating] the ability of a platform to meaningfully moderate content that is displayed to users.”
The Electronic Frontier Foundation also filed an amicus brief. In it, the EFF asserted that services maintain their right to curate user speech, citing Manhattan Community Access Corp. v. Halleck – affirming the First Amendment right of private entities to “exercise editorial discretion over the speech and speakers in the forum.”
Twitter, Facebook, and Gov. Greg Abbott’s office have not responded to public requests for comment as of Thursday.
Ben Kahn is a graduate of the University of Baltimore, where he studied Policy, Politics and International Affairs. He is published in Broadband Breakfast, The Washington Jewish Week, and The Center Square.