SCOTUS Blocks Texas Social Media Law (for Now)
A slim majority upheld an injunction, kicking the can down the road.
NPR’s Nina Totenberg (“Supreme Court blocks Texas social media law from taking effect“):
The U.S. Supreme Court on Tuesday blocked a Texas social media law from taking effect that intended to punish online platforms for removing political speech.
The vote was 5-to-4, with the court’s three most conservative justices filing a written dissent that would have allowed the Texas law to start. In a surprise move, liberal Justice Elena Kagan joined in the dissent, but she did not explain her rationale.
The Texas law bars Instagram, Facebook, Twitter and other popular social media sites from blocking content based on viewpoint. Gov. Greg Abbott maintained that the law was a justifiable response to “a dangerous movement by social media companies to silence conservative viewpoints and ideas.”
A federal district court temporarily halted state officials from enforcing the law, saying it likely violates the First Amendment. But a divided panel of the 5th U.S. Circuit Court of Appeals allowed enforcement to proceed.
The Big Tech interest groups NetChoice and the Computer & Communications Industry Association, filed an emergency request to block the law after the U.S. Court of Appeals for the 5th Circuit overturned a lower court ruling that enjoined it from taking effect.
The groups argued the law would force tech platforms to leave up everything from Russian propaganda to neo-Nazi and Ku Klux Klan screeds. The groups maintained that the Constitution protects their right to manage platform content, just as it protects a newspaper’s publication decisions.
SCOTUSBlog’s Amy Howe (“Divided court blocks Texas from enforcing social media law“) adds:
The majority did not explain the reasoning behind its brief order. Alito wrote a six-page dissent arguing that the court’s intervention to block the law is premature. Thomas and Gorsuch joined that dissent. Kagan did not join Alito’s opinion, but she separately indicated that she, too, would have allowed the law to take effect. She did not elaborate on her thinking.
The law at the center of the dispute is known as H.B. 20. It prohibits social media platforms with at least 50 million active users from blocking, removing, or “demonetizing” content based on the users’ views. When Texas Gov. Greg Abbott signed the law last September, he declared that “conservative viewpoints in Texas cannot be banned on social media.” Tech companies challenged the law, saying it violates their First Amendment right to control what speech appears on their platforms. They also said the law would prevent them from removing hate speech, political disinformation, violent videos, and other harmful content.
In a brief, unsigned order, the Supreme Court granted the technology groups’ request to reinstate Pittman’s injunction, meaning Texas cannot enforce the law while litigation continues in the lower courts.
In his dissent, Alito explained that the court should not reinstate Pittman’s injunction unless the technology groups can show that, under existing law, they are likely to prevail on the merits of their challenge. But whether the groups can make that showing, Alito suggested, “is quite unclear,” because both the law and the business models for social media platforms are “novel.”
Alito emphasized that he had not “formed a definitive view on the novel legal questions that arise from Texas’s decision to address the ‘changing social and economic’ conditions it perceives.” “But precisely because of that,” Alito continued, he was “not comfortable intervening at this point in the proceedings.”
Florida has a similar law that seeks to regulate social media companies’ content-moderation policies. It aims to prevent platforms from banning users based on their political ideology. Last week, the U.S. Court of Appeals for the 11th Circuit blocked Florida from enforcing the law, reasoning that it likely violates the First Amendment.
It’s worth emphasizing that this isn’t a final ruling on the merits but a decision on whether to allow the law to go into effect while the litigation sorts itself out. I haven’t had time to—and likely won’t—read Alito’s dissent but, judging from Howe’s reporting, it appears to have hinged on the technical matter of whether the “likely to prevail” threshold had been reached, not on support for the law itself.
On the merits, I’m inclined to believe the law is prima facie unconstitutional. Most obviously, as the media companies themselves argued, they almost certainly have a 1st Amendment right to remove objectionable content from their sites and to judge for themselves what constitutes “objectionable content.” Secondarily, to the extent that the platforms should be regulated, it strikes me that it’s within the purview of the Federal government, not the several states.
That said, as I’ve noted in previous posts, I do think we’ve reached the point where Twitter and Facebook, in particular, have crossed a threshold that might invite regulation as common carriers. They are, at least for certain elite communities, all but essential venues. Journalists and political influencers, in particular, are seriously handicapped without access to Twitter.
While I think they’ve gone about it the wrong way, Texas and Florida Republicans are responding to a real problem. But, to the extent it’s regulable, it should be Congress and the FCC, not state legislatures, that set the parameters.
This is being fought over First Amendment issues but I’ve always wondered why the Interstate Commerce clause doesn’t also prevail.
Treatment of certain tech companies under common carrier regulations makes sense. Google and Facebook in particular seem uncomfortable fits under Sec 230 as they are not simply providing a connection and storage, but actively moderate and promote particular content. Their ubiquity and market share alone leads to common carrier regulation.
Regardless of the regulatory environment, those kicked off the platforms have violated the terms of service that they agreed to when signing up. If one denied access to, say Facebook, can show they were posting within the boundaries of the terms of service, then they would have a case, but to claim that service provider can’t decide on terms of service is a denial of the carriers rights.
By far the correct ruling.
1] This won’t be used “against conservatives” per Abbott’s assertion — as with the first/McCarthy Red Scare, one chief goal is silencing left-wing voices who speak actual truth to power.
2] What entity would verify any content removal is legitimate — precisely following only their stated policies rather than whimsical personal beefs changing by the day, and also being quickly responsive to those contesting the content removal? Indeed, the age-old question of who’s watching the watcher applies here.
I’m suspicious of anything calling itself “A Tech Company” at this point.. they’re not disrupting anything other than labor hour and wage laws.
I think people in the media have a grossly outsized view of Twitter’s reach. It basically seems to be pundits nattering at each other, or yet another venue for snark for the professionally dissatisfied. I can’t think of any reason why they should be considered “essential venues”. The important news stories from Twitter are about Twitter, or tweets. “Trump said this!”, “Musk said that!”. The rest is just a way for those who have opinions for a living to get those opinions out without having an editor in the way.
James: “That said, as I’ve noted in previous posts, I do think we’ve reached the point where Twitter and Facebook, in particular, have crossed a threshold that might invite regulation as common carriers.”
James, you blowing a massive hole in the First Amendment there.
So you’re actually in favor of taking no action?
We are in this situation because Congress refuses to do its job. Facebook and Twitter and the rest of the lot provide a communications service. Congress wrote statutes that say communications services must be regulated in one of two ways: as a telecommunications service, or as an information service. Telecommunications services can be common carriers; information services explicitly cannot. Information services can do things like stick unsolicited ads up on the display; telecommunications services cannot.
Net neutrality has repeatedly run into this problem. When the FCC decided they would regulate internet access as a communications service, they had to make a choice about whether it was a telecommunications service or an information service. For reasons that made some historical sense at the time, they said it was an information service (I was in the industry, and was one of the few voices screaming that making it an information service was a bad mistake). Information services are immune from meddling like network neutrality. Obama’s FCC attempted to reclassify internet access as a telecommunications service and then impose net neutrality. At the same time, they made a pinky-swear promise that they simply would not enforce any of the other rules that statute places on telecommunications service providers. Eventually the effort was abandoned rather than face a decade of court challenges.
The internet and cheap computers has enabled a wide range of services that do not fall cleanly into the categories Congress imposed. If the FCC were to declare that Facebook is a telecommunications service, which they would have to do at the present time to in order to declare it a common carrier, then Facebook’s main revenue stream disappears — no unsolicited ads. Facebook is a specific example of the kind of problem I said back in the 1990s would appear: hundreds of millions of people putting up content accessible by anyone, most of minuscule interest, some of it offensive, some of it illegal. It was a new thing, and would have to have its own set of rules.
Until Congress does its job and creates the necessary new categories, everyone’s hands are tied. If the FCC applies the rules that would allow declaring Facebook a common carrier, Facebook is out of business. If they apply the rules that let Facebook stay in business, they can’t treat them as a common carrier. And possibly worth noting, back in the days when I read the statutes and paid attention to the court cases, I believe it was clearly settled that the states can’t regulate information services — Congress has reserved that authority to the FCC.
See, now what I recall is that Trump got elected, and installed Ajit Pai as a chairman of the FCC, and he engineered the reversal of a decision that had the most powerful response (in favor) of anything the FCC has ever put out for comment: He reversed Net Neutrality. The American people, it seems, really think that broadband service should be a common carrier – they don’t want their broadband carrier playing favorites or making deals.
And yes, of course, the broadband industry fought back with lawsuits. Because they really don’t like it. And then Trump won.
But, please, help me understand better. Your remark didn’t come from nowhere.
@Jay L Gischer:
It wasn’t just the current broadband companies preparing for the court fights, there were a lot of little companies lining up to sue the FCC over the “we won’t enforce the rest of the law” part. Telecommunications service providers have to share their resources with the little guys: at least colocation of equipment and access to the last-mile physical facilities.
The company I worked for some years before the FCC decision had voluntarily tried to enable small companies to provide internet access over our facilities, even though we were not required to. Two years of negotiation, a bunch of money spent to conduct trials the engineers on both sides said worked well. Then the little guys’ legal departments all said, “No, we want you to behave like an actual telecommunications company. Expand your buildings to hold our gear, give us access to analog bandwidth on the physical transmission lines.” Splitting up the analog bandwidth was not feasible. We abandoned the effort.
The FCC staff aren’t dummies; I knew people there, and they knew those cases by the little guys were going to happen when the decision was made. For some reason some of the high-up people thought that the Supreme Court would go along with selective enforcement. Yeah, rescinding the rule change was accelerated because of Trump/Pai. But a Clinton administration would have been forced to eventually.
The dumbest thing is that the Republicans in Congress offered Obama a compromise. Both houses introduced a small bill that said, “Here’s a definition of network neutrality. ISPs are a special category of information service that have to conform to neutrality, but not all the nasty telecommunications stuff.” It was straightforward and simple and would have curbed the behavior that everyone was upset about at that moment. Wouldn’t have helped with the common carrier things now.
Myself, I suspect Obama’s FCC was anticipating what we’re seeing now with Twitter and Facebook and content moderation, and was trying to create the third category of communications services without Congress. That’s not how the system is supposed to work.
This should definitely be part of the analysis, but it tends to get buried under ubiquity, reach and other issues. They are making editorial decisions on what to content to show.
If your feed was a firehose where everything you subscribed to showed up in reverse chronological order, and no other community content was injected, then I think 230 would apply very neatly. It would also be a complete mess once a person follows more than a handful of other people. (“So and so liked this” would either have to go away, or bring in everything everyone you are following has liked, for instance)
The big social networks are clearly not just giving people a forum, they are choosing what content others see based on … reasons. (Reasons are stickiness, filling out their profile of you for advertising, etc.) that part makes them very much not a common carrier.
Once they are selecting what to show a given user, I think they should be open to regulation, and they should be liable for what they select.
YouTube rather notoriously has a quick spiral from innocuous content, to conservative, to more conservative, to alt-right, to Q. It always surfaces a chunk of content more extreme than a person is at any given moment and keeps offering the user a hit of a little more passionate hate. YouTube is a radicalization engine.
(You can also get into a spiral of guinea pig videos… but guinea pigs don’t get more extreme, unless we want to claim capybaras are extremist guinea pigs)
I would absolutely like to let them be sued when an incel kills a bunch of girls, or a Nazi kills a bunch of blacks or Jews. Are they responsible? Partly in a lot of cases, let’s let the jury decide.
This would have a chilling effect on the platform. There would be an effort to remove, or at least not promote whole segments of content. But, is that a bad thing?I’m not so sure.
Facebook has been used to organize and promote genocide. I don’t use it (too many Nazis) so I don’t know the mechanics as well, but I think that to the extent that people don’t have to search out extremist content, they should also be able to be held liable.
Part of the problem is that the people at the top — lawmakers, cabinet secretaries, etc. — don’t understand the internet. “Internet access” is not one thing, and there’s a huge difference between an ISP and Facebook.
(And every time an ISP tries to step outside it’s lane it should be beaten — it serves bits, it should not be interpreting those bits, or injecting ads or…)
@Gustopher: Don’t disagree with anything you’ve said. Just pointing out — in way too much detail — that Prof. Joyner’s last paragraph doesn’t go far enough. Congress needs to go back to the drawing board, and replace the 1996 Communications Act, which was largely addressing 1980s problems, with something new. It took them 62 years to work up their courage and do the 1996 bill. I don’t hold out any hope that anything sane will happen for at least another 20 years.
For conservatives, Citizens United has been a wonderful gift, but it has also created a problem that they are now trying to snuff out. That is, corporate free speech allows the corporation to decide what can be said on its platform. The efforts in TX and FL to limit corporate speech, both through legislation and use of the bully pulpit is the first wave. Corporations have adopted, what are perceived to be, liberal positions, because that is where the market is, the 18 t0 50 urban/suburban consumer that has money to spend and is also socially and politically, liberal. Not sure on Kagan’s rational, but it seems to me that for Alito, Gorsuch and Thomas, this is an opportunity to limit corporate speech to what conservatives want.
@Michael Cain: That is super interesting, and represents something I didn’t know, so thank you.
I’m still an advocate for “broadband should be a common carrier” though.
The practical consequences of 50 states all passing their own mutually inconsistent laws regulating the internet boggle the imagination. But I would find it amusing to see TRUTH Social forced to publish torrents of anti-Republican material by laws championed by Greg Abbott and Ron DeSantis.
@Ken_L: They certainly won’t be in Texas and Florida; those governments do not want to control the internet to ‘let a thousand flowers bloom’. Enforcement will be one sided.
Alito said that Texas “only” wants to regulate speech based on “viewpoint…”.
Isn’t that what the 1st amendment means when the constitution says “…shall make no law? I mean I only want to regulate weapons of war.
Is Alito trying to get an award for the most legislating from the bench and tortured logic?
Or is it more of the idea that states can trample willy-nilly over any right because “states rights” (Except the 2nd of course).
I keep hearing people say this, but I don’t see it. I’m subscribed to a couple dozen channels, and will spend a couple hours a day watching them. I think I might have gotten a right-wing suggestion once or twice in the past year (I’m not sure, because I didn’t click on it; it was something about history).