Supreme Court Temporarily Blocks Texas’ H.B. 20 Social Media Law

The U.S. Supreme Court has temporarily blocked Texas social media law — H.B.20 — the controversial law prohibiting platforms such as Twitter and Facebook from banning users based on their “viewpoints” from taking effect until a Fifth Circuit challenge of the legislation has been decided.

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In a 5-4 vote, the court reinstated a lower court order blocking enforcement of H.B.20, which prohibits certain “censorship” or viewpoint discrimination by large internet platforms such as Twitter and Facebook and Instagram. Justice Elena Kagan dissented, as did three of the court’s conservative justices.

The Fifth Circuit challenge, brought by NetChoice LLC and the Computer & Communications Industry Association, and faced a three-judge panel earlier in May.

Justice Samuel A. Alito wrote a dissent Tuesday expressing his discomfort at intervening in the legal challenge at this stage.

“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 penned.

The state has argued that H.B. 20 only requires companies to “refrain from discrimination” against a user’s speech, and it only applies to platforms that market themselves as open to the public and have at least 50 million users in the U.S., Justice Alito noted. The trade groups have argued that it will affect Facebook, Instagram, Pinterest, TikTok, Twitter, Vimeo and YouTube, but Texas claims only Facebook, YouTube and Twitter are affected.

NetChoice and CCIA have argued that H.B. 20, introduced in March 2021 and signed into law in September 2021, unlawfully forces them to carry objectionable speech, and that Western District of Texas Judge Robert Pitman correctly held the law likely violates their First Amendment rights.

Judge Pitman granted NetChoice and CCIA a preliminary injunction against H.B. 20 in December 2021, which Texas immediately appealed to the Fifth Circuit.

After hearing oral arguments in early May, a three-judge panel issued its decision to grant Texas’ motion to lift the injunction while its appeal proceeds. A footnote included in the order stated the decision was not unanimous.

NetChoice’s in-house counsel, Chris Marchese, said Tuesday that the group is relieved that the “First Amendment, open internet, and the users who rely on it” will remain protected from Texas’ constitutional overreach.

“Despite Texas’s best efforts to run roughshod over the First Amendment, it came up short in the Supreme Court,” he stated.

CCIA President Matt Schruers said in a statement that the association is optimistic and encouraged by the Supreme Court’s ruling.

“This ruling means that private American companies will have an opportunity to be heard in court before they are forced to disseminate vile, abusive or extremist content under this Texas law,” he said.

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