CCIA, NetChoice Press for SCOTUS Review in Texas Social Media Case

The Supreme Court should hear a case against Texas’ social media law because circuit courts are split over First Amendment issues for laws in Texas and Florida, the Computer & Communications Industry Association and NetChoice argued Tuesday in docket 22-555.

Texas’ law violates social media platforms’ First Amendment rights by denying them editorial control over their sites and forcing them to publish speech they don’t want to share, the industry groups argued in December. The 5th U.S. Circuit Court of Appeals upheld Texas’ social media law HB-20, but the 11th U.S. Circuit Court of Appeals struck down a similar law in Florida, SB-7072 (see 2211280055).

Texas failed to show that HB-20’s “prohibition on editorial discretion or its operational and disclosure provisions survive First Amendment scrutiny,” the groups argued. Compelling websites to publish viewpoints they don’t want to share is a free speech violation and so is imposing operational and disclosure provisions “designed to burden editorial discretion,” they argued. “Since our Constitution was drafted, courts have protected the rights of citizens and businesses from being compelled to speak by the government,” said CCIA President Matt Schruers in a statement. “Texas’s social media law runs roughshod over key First Amendment rights, and calls for Supreme Court review.” Texas didn’t comment.

They asked the high court to grant certiorari petitions from Florida Attorney General Ashley Moody (R) in dockets 22-277 and 22-393 concerning Florida’s statute and hold the petition in the Texas case. The alternative is to grant review in the Texas case, they said. In the Moody case, the high court will address “whether websites have First Amendment rights to choose whether and how to publish and disseminate speech,” despite Texas’ contention that the Florida case won’t address the issues in Texas, the tech groups said. They noted the 11th Circuit ruled that laws like those in Florida and Texas, which single out disfavored websites, can’t meet “even intermediate scrutiny.”

Both cases ask whether government can compel websites to provide notice and detailed justification for every content moderation decision, they said. The pending Moody cross-petition “implicates the remaining disclosure and operational provisions,” the filing said: “Rulings on these issues will resolve the constitutionality of HB20.”

The filing dismisses a “novel” contention from Texas Attorney General Ken Paxton (R), who argued that the First Amendment allows the government to “guard its citizens’ rights to equal access to modern means of communication.” No “historical tradition or precedent supports this assertion,” the tech groups said. The filing cites several Supreme Court decisions that go against Texas’ arguments. If the Supreme Court had used Texas’ legal theories, it might have made different decisions in high-profile cases, the filing said: like forcing newspapers to publish articles in Miami Herald v. Tornillo; parade organizers to include certain floats in Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston; or cable channels to air certain shows in Denver Area Educational Telecommunications Consortium v. FCC.