Texas Urges SCOTUS to Deny Emergency Appeal in Social Media Case

The Supreme Court might be showing interest in tech groups’ emergency appeal of a 5th U.S. Circuit Court of Appeals order allowing a Texas social media law to be enforced, said court watchers this week. Texas responded Wednesday to NetChoice and Computer and Communications Industry Association, as requested by Justice Samuel Alito (see 2205160030).

Republican senators from Texas and Florida, which has a similar law being litigated, rallied behind efforts to rein in social media networks. Tech and free-speech groups, in amicus briefs, urged SCOTUS to grant emergency relief.

The Supreme Court “should reject applicants’ extraordinary request on the merits, but the platforms misstate the demanding standard they must meet as well,” wrote Texas Attorney General Ken Paxton (R). The 5th Circuit “waited to stay the district court’s preliminary injunction until after briefing and argument on the merits was complete,” said the AG: At least give the lower court a chance to explain its reasoning in a decision that plaintiffs can challenge through a petition for writ of certiorari.

Social platforms wrongly “assert a First Amendment right to refuse service to their customers based on the viewpoints those customers profess,” said the Texas AG: SCOTUS “has never recognized such a right, and it should not do so now to vacate a stay.” The state law “prohibits the platforms from closing their property to disfavored speech or speakers,” Paxton said. “This antidiscrimination requirement does not violate the First Amendment.” He added, “Imposing common-carriage requirements on a business does not offend the First Amendment.”

Texas is trying to be “creative” in protecting online speech, said Sen. Ted Cruz, R-Texas: It’s important Congress do the same. The specific mechanism can be debated, but Big Tech’s abuse of power is the greatest threat to free speech in the U.S., said Cruz. The far left’s “hysteria” over Elon Musk’s attempt to buy Twitter (see 2205170006) speaks volumes about free speech rights online, said Cruz. It’s an admission of weakness from the left, he added: “Nobody on the right is asking that socialists and communists and Marxists be silenced because their ideas are dismal failures.”

If platforms are going to act like publishers, they should be “treated like publishers,” Sen. Rick Scott, R-Fla., said, referring to the Section 230 aspects of the debate. The law in Texas was crafted after major social media platforms banned former President Donald Trump for his role in the Jan. 6 Capitol riot. Twitter should allow Trump back on the platform and remove users like Venezuelan President Nicolas Maduro and the ayatollah, said Scott.

The Supreme Court received many more emergency requests in the past few years, “and a lot of those requests have been granted,” said State and Local Legal Center Executive Director Lisa Soronen. “Asking for relief on the shadow docket” isn’t “something that happens every day with every case, but it’s a more common practice and the court is inclined to grant relief.” By asking Texas to respond, it might mean the whole court is involved and wants to take “a closer look,” she said. “It’s not a no-brainer.”

Alito asking Texas to respond quickly after the appeal was filed might suggest the court has interest in acting soon, emailed attorney Catherine Gellis, who filed an amicus brief for the Copia Institute, think tank arm of Techdirt publisher Floor64. “It is an odd and unfortunate situation we find ourselves in to need this sort of relief. As the district court carefully analyzed, there is a substantial amount of First Amendment precedent that should prohibit” the Texas law, so “there should have been no reason to disturb the injunction, but especially not without any sort of analysis to the contrary.”

A divided 5th Circuit might catch the high court’s attention, given the gravity of the First Amendment issues and the 5th Circuit’s failure to articulate its reasons for staying the district court’s injunction, emailed Clay Calvert, who directs the University of Florida Brechner First Amendment Project. “I suspect there's a strong likelihood the Supreme Court eventually will take up one of the two NetChoice cases on its merits. ... If the Fifth Circuit and the ​Eleventh Circuit reach different conclusions about the constitutionality of the Texas and Florida laws before them, then that split of authority would definitely make one of the cases prime for taking."

The 5th Circuit order “suggests those judges’ preliminary view is that the appellants do not have a ‘substantial likelihood of success on the merits’ of overturning the law on 1st amendment grounds,” emailed NARUC General Counsel Brad Ramsay. The state regulator association has taken no position on the case. “What the Supreme Court does will always have some impact,” said Ramsay: If Alito agrees with the 5th Circuit, “it will add incrementally to momentum in the trial on the merits for the law’s supporters.”

‘Devastating Harms’

The 5th Circuit’s “single-sentence unreasoned order … will cause devastating harms,” said an amicus brief by a group including Chamber of Progress, CTA, TechNet and the Multicultural Media, Telecom and Internet Council. “It places platforms in an impossible position -- they must either immediately suspend the vast majority of content moderation on a global basis, allowing their services to be overrun with spam, scams, fraud, disinformation, hate speech, and all manner of graphic and reprehensible content, or they must risk countless lawsuits and state enforcement actions for limiting distribution or the availability of content from or of interest to Texans.”

The Texas law’s mandatory transparency requirements pose “significant risks to user-generated content and free speech online,” Santa Clara University law professor Eric Goldman argued. The law attempts to impose unprecedented requirements for online publishers to make disclosures about their editorial operations, requirements that don’t apply to any offline publishers, argued Goldman: “Such inevitable distortions of publishers’ editorial decisions and operations are intolerable under the First Amendment.”

Applicants are likely to succeed on the merits because courts have “without exception recognized online intermediaries’ First Amendment rights to curate the content they host,” said the Center for Democracy and Technology, Electronic Frontier Foundation, Wikimedia Foundation and others in a joint brief.

The appeals court opened “a dangerous breach in the ‘virtually insurmountable’ constitutional barriers that safeguard a private speaker’s editorial autonomy,” said Reporters Committee for Freedom of the Press, American Civil Liberties Union and others jointly: The state law “challenges core pillars of the freedoms of speech and the press,” and Texas “offers no limiting principle that would prevent it from turning its attention to the most traditional of media tomorrow.”

The state law flips the First Amendment on its head, argued TechFreedom. It would require platforms to host and promote hateful and harmful content to users of all ages, including children, it said: Enabling users to opt into content moderation services will mean the most vile and disturbing content will reach users by default.

The Supreme Court should “preserve the status quo ” by vacating the 5th Circuit order, said the Cato Institute. “The public interest is harmed by allowing the law to go into effect because most users do not want to see animal abuse, terrorist recruitment material, or racial slurs when they go on Facebook.”