Supreme Court Blocks Texas Social Media Law, With Kagan Joining Conservatives in Dissent

Decision reimposes injunction while the law is challenged in federal courts

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The Supreme Court on Tuesday voted to reimpose an injunction on a Texas law that aims to prevent social media platforms from moderating or deleting content concerning users’ viewpoints.

The law itself has not been overturned, however; Tuesday’s decision blocks HB20 from going into effect while federal courts hear cases related to it, and it’s likely the actual constitutionality of the law will eventually be reviewed by the Supreme Court.

HB 20 echoes claims made by conservatives that platforms such as Twitter and Facebook deliberately target conservative speech with content moderation policies such as “shadow banning,” which the platforms have repeatedly denied. However, the evidence is clear that that even with content moderation policies, Facebook still prioritizes conservative speech and ideologies and studies have proven that, for reasons that are unclear, right wing figures are amplified far more than left wing figures on Twitter.

The tech industry and other parties have argued that the law would prevent content moderation of any kind, and enable hate speech to flourish online. In an emergency application submitted to the court, two industry groups representing companies including Amazon, Twitter, Facebook and Google wrote that “HB20 would compel platforms to disseminate all sorts of objectionable viewpoints, such as Russia’s propaganda claiming that its invasion of Ukraine is justified, ISIS propaganda claiming that extremism is warranted, neo-Nazi or KKK screeds denying or supporting the Holocaust, and encouraging children to engage in risky or unhealthy behavior like eating disorders.”

In response to the application, Texas Attorney General Ken Paxton argued that HB 20 does not “prohibit the platforms from removing entire categories of content” such as pornography, “foreign government speech,” spam and other illegal content.

Justice Kagan departed from her liberal colleagues, voting with conservative justices Alito, Gorsuch and Thomas in dissenting to the decision. In the dissenting opinion, Alito wrote that the court had sided with the technology trade associations which contended, “among other things, that the law is facially unconstitutional under the First Amendment” and acknowledged that the court has “preliminarily enjoined the Texas attorney general from enforcing the statute.”

However, Alito wrote that he “cannot agree” with the majority opinion based on precedents upholding freedom of speech.

“It is not at all obvious how our existing precedents, which predate the age of the internet, should apply to large social media companies, but Texas argues that its law is permissible under our case law,” he stated.

Further down, the opinion continued, “If we were to agree with the applicants’ arguments, the decision could have widespread implications with regard to other disclosures required by federal
and state law.”

The statement ended with Alito writing that he has “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,” and for that reason he is “not comfortable intervening at this point in the proceedings.”

Texas is one of several states currently contending with anti-content moderation laws. A similar law to HB20 passed in Florida, but courts have so far prevented it from taking effect.