Five things to know about the Texas social media law

Texas’s law that restricts social media platforms’ ability to remove users or violative content was temporarily blocked by the Supreme Court on Tuesday, but it’s not the end of the road for the case that may wind up back before the justices. 

The ongoing challenge to the Texas law, and to a similar measure in Florida, is providing a test for how First Amendment protections should be applied in the internet age.

Here are five things to know about the law and the Supreme Court’s 5-4 ruling. 

How could the law keep companies from moderating content?

Texas’s law, HB 20, forbids social media companies with more than 50 million monthly users from banning Texas-based users over their political views. Gov. Greg Abbott (R) signed it in September, after it passed in the Republican-controlled legislature. The state Republicans branded it as an anti-censorship law, reflecting growing GOP accusations that mainstream platforms are removing content and users with an anti-conservative bias. 

But critics of the Texas law — including tech industry groups and a broad coalition of civil society groups — say in practice it would lead to a more dangerous internet environment by interfering with platforms’ ability to remove content that violates platform policies such as pro-terrorist content, animal abuse, pornography and hate speech.

“The heart of the law, which is this must-carry provision that would prohibit the platforms from taking down content, that part of the law will be very problematic for the free speech not only of the platforms, but also of users because it would mean that you would have users subjected to all kinds of content that nobody wants to see no matter what political stripe they have,” said Scott Wilkens, senior staff attorney at the Knight First Amendment Institute at Columbia University. 

Experts also say the law would open the floodgates for lawsuits from users accusing tech platforms of taking action against them based on their political views. 

NetChoice and the Computer & Communications Industry Association (CCIA), tech groups that count industry giants such as Facebook, Amazon and Google among their members, challenged the law on the basis that it violates the First Amendment rights of the private companies to moderate content in line with their own policies. 

How did the case reach the Supreme Court, and how did the justices vote? 

The tech groups challenging the Texas law had a mixed record in the lower courts. 

In December, a federal judge handed a win to the tech groups by temporarily blocking the Texas law from being enforced. In a 30-page opinion issuing a preliminary injunction, U.S. District Judge Robert Pitman found that the tech groups were likely to ultimately win on the merits.

“In this case, content moderation and curation will benefit users and the public by reducing harmful content and providing a safe, useful service,” wrote Pitman, an Obama appointee. “Here, an injunction will serve, not be adverse to, the public interest.”

But last month, a three-judge panel on the U.S. Court of Appeals for the 5th Circuit halted that ruling without explanation, prompting the tech groups to file an emergency request to the Supreme Court.

The justices’ brief order Tuesday reversing the 5th Circuit came from a five-member majority comprising two of the court’s three liberal members: Justices Stephen Breyer and Sonia Sotomayor. They were joined by Chief Justice John Roberts and his fellow conservatives Brett Kavanaugh and Amy Coney Barrett.

Liberal Justice Elena Kagan indicated that she would have denied the tech groups’ request but provided no rationale. Notably, Kagan did not join a dissenting opinion endorsed by the court’s three most conservative members.

In a dissent penned by Justice Samuel Alito and joined by Justices Clarence Thomas and Neil Gorsuch, the hard-line conservatives made clear their view that the Supreme Court should have left intact the 5th Circuit’s ruling. 

Although the dissenters stopped short of making explicit their views on the merits of the underlying legal issues, some court watchers believe the most conservative justices appear inclined to side with Texas if the case returns to the Supreme Court.

What happens next in the legal challenge?

The case now returns to the 5th Circuit, which will weigh the merits of Texas’s appeal. If the deeply conservative 5th Circuit ultimately sides with Texas — as some experts believe it will — the tech groups would be expected to file a formal appeal to the Supreme Court.

In this scenario, the justices would be highly likely to take up the case, perhaps as soon as the court’s next term that begins in October. If the 5th Circuit sides with Texas, its ruling would clash with a decision by the Atlanta-based U.S. Court of Appeals for the 11th Circuit, which just last month ruled in favor of the tech groups by finding that a similar Florida law was likely unconstitutional, teeing up what’s known as a “circuit split.” 

The Supreme Court is often inclined to grant review in cases of circuit splits in order to provide a nationally uniform interpretation of federal law. Such clarity would be especially important in the area of online platforms, experts said, where a patchwork of different rules across the country would be unworkable.

“When you have a circuit split about something like the internet … I think that really increases the chances that the Supreme Court will hold arguments and issue a normal opinion, not on the shadow docket, where they determine, ‘OK, what are the First Amendment principles that we apply when the government tries to restrict the ability of private online platforms to monitoring?’” said Jeff Kosseff, a professor of cybersecurity law at the U.S. Naval Academy.

“You can’t have different internet in the 5th Circuit and the 11th Circuit. That’s not a viable way to operate platforms,” he added. “You do need to have an understanding of what the rules are.”

What does the ruling signal for the future of the law?

The Supreme Court’s order Tuesday revealed little about how the court might rule if the case winds up on its docket next term. Neither the five-justice majority nor Kagan offered any explanation of their views, and it’s possible their votes turned entirely on procedural, rather than substantive, considerations.

The key votes may ultimately come down to Kavanaugh and Barrett, according to Kosseff, of the U.S. Naval Academy, who said tech companies may be heartened that the pair voted in their favor. 

“I think that it’s at least a good sign for the tech companies that you had Kavanaugh and Barrett voting on their side,” he said, but cautioned, “I think that it’s hard to read too much into how the justices would vote in such a case based on this ruling.”

Even the three hard-line conservative justices who wrote in dissent stopped short of clearly telegraphing their views on the merits of the Texas law, though some experts say it’s likely they would rule in favor of states seeking to tighten regulations.

Among the dissenters, Texas is almost certain to find a sympathetic audience in Thomas, who last year wrote a solo opinion expressing concerns about the highly concentrated power of Big Tech. In this unrelated case, Thomas entertained an argument that is now central to Texas’s defense against the ongoing challenge to HB 20.

“There is a fair argument that some digital platforms are sufficiently akin to common carriers or places of accommodation to be regulated in this manner,” Thomas wrote in his solo opinion. 

Texas’s legal position hinges on this very argument — that social media platforms should be seen as common carriers, essentially passive channels of communication, rather than being treated as akin to newspapers. Under law, common carriers enjoy fewer constitutional protections, if any. 

Critics of the Texas law have argued the position is weak because the platforms have not acted as common carriers in the past and that they should be treated more like newspapers that are making editorial decisions about what content to host.

Alito, for his part, wrote in his dissent Tuesday 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.” 

What is happening in other states?

Florida passed a similar law last year that is also being challenged by NetChoice and the CCIA, the same plaintiffs as in the Texas case. In a ruling last week, the Atlanta-based 11th Circuit affirmed a lower court’s finding that major provisions of the Florida law, including a requirement that companies carry speech and content that violates their policies, were likely unconstitutional.  

The opinion of the three-judge panel was written by Trump-appointed Judge Kevin Newsom, a well-respected jurist in conservative Federalist Society circles. 

But the appellate court also reinstated other parts of the law, including a provision that would require social media platforms to allow deplatformed users to access their own data stored on the platform’s servers for at least 60 days. 

Lawmakers in other states are following Texas and Florida in seeking to restrict Big Tech. Georgia’s state Senate earlier this year passed a bill similar to those now being challenged, and Alaska, Ohio and Tennessee are proceeding with their own similar proposals. 

“What the courts do with the Florida and the Texas laws is likely to influence what happens to the similar laws that are enacted and in other states,” Wilkens said.