Texas’ social media law remains blocked after U.S. Supreme Court sends it back to lower court

By Dante Motley and Pooja Salhotra, The Texas Tribune

Texas’ social media law remains blocked after U.S. Supreme Court sends it back to lower court” was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.

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The U.S. Supreme Court sent the legal challenge to a Texas social media law back to a lower court, sidestepping a landmark ruling for now.

The legal battle centers on Texas’ law preventing large social media companies from censoring users’ content based on their political viewpoints.

On Monday, the Court said the 5th U.S. Circuit Court of Appeals had not properly analyzed the full scope of the legal challenge and redirected the case back to the lower court for relitigation. The Supreme Court sent a similar Florida case back to the Eleventh Circuit. Both states’ laws will remain blocked while the challenge continues.

Writing for the majority, U.S. Supreme Court Justice Elena Kagan said neither court had fully considered how far the Florida and Texas laws could reach.

“The question in such a case is whether a law’s unconstitutional applications are substantial compared to its constitutional ones,” Kagan wrote. “To make that judgment, a court must determine a law’s full set of applications, evaluate which are constitutional and which are not, and compare the one to the other. Neither court performed that necessary inquiry.”

Texas’ 2021 law, called House Bill 20, was championed by Republican state leaders in an effort to combat a perceived anti-conservative bias on social media platforms — a sentiment further spurred by social media platforms, including Facebook and Twitter, suspending former president Donald Trump from their platforms after the Jan. 6, 2021 riots at the Capitol.

The suit was filed by NetChoice and the Computer & Communications Industry Association who argued that social media have a First Amendment right to manage the content on their platforms and select the types of speech they deem appropriate — similar to curated publishing platforms like newspapers. And tech companies say that allowing government control over their content could lead to a surge of misinformation, which would be detrimental to users.

In a Monday morning statement, CCIA President Matt Schruers said he was pleased that the court seemed to recognize the First Amendment challenges in Texas and Florida’s social media laws.

“We are encouraged that a majority of the Court has made clear that the government cannot tilt public debate in its favored direction,” the statement said. “There is nothing more Orwellian than government attempting to dictate what speech should be carried, whether it is a newspaper or a social media site.”

Attorneys for Texas framed the law as an extension of regulations that prohibit discrimination in facilities and services open to the public. They emphasized the significant market power of social media platforms and argued that regulation is necessary to protect the public interest and ensure these platforms do not misuse their influence. The state’s lawyers also argued that the regulation law is narrowly focused, applying only to platforms with over 50 million users, and allows users to filter unwanted content, thus promoting voluntary communication.

Following the court’s ruling, Attorney General Ken Paxton said on X that “Big Tech censorship is one of the biggest threats to free public discourse and election integrity.”

“No American should be silenced by Big Tech oligarchs,” Paxton said.

A lawsuit filed against a similar law in Florida by the same plaintiffs was also heard in the Supreme Court. In that case, the law was focused on preventing social media platforms from banning politicians.

While both laws were passed in response to perceived bias, social media companies refute claims of removing content or blocking users due to their viewpoints. They do enforce policies against explicitly graphic content, bullying, hate speech, and dangerous misinformation.

“You have here the first state laws that attempt to regulate how social media platforms moderate their content, and that’s why they’re enormously important and why the court’s decision here is of such great importance,” said Scott Wilkens, senior counsel at the Knight First Amendment Institute at Columbia University.

Wilkens explained that throughout the court’s history, it has recognized the importance of “editorial judgment for entities that disseminate speech to the public.” He noted that it has upheld this principle with respect to newspapers, public utilities sending newsletters, and even parades.

“The importance of social media platforms to free speech online cannot be overstated, as the Supreme Court has said before, that they are the modern public square,” he said. “There is so much at stake when the government tries to regulate free speech online. And that’s why these cases are so important.”

The 5th U.S. Circuit Court of Appeals, who had previously upheld the House Bill 20, did not believe these protections extended to social media platforms, writing that they “reject the idea that corporations have a freewheeling First Amendment right to censor what people say.”

Two sections of the Texas law were challenged in this case. One provision prevented social media companies from censoring content based on the author’s viewpoint expressed on their platform or “through any other medium.” The second required social media companies to notify users if they remove their content, explain why they removed it, provide complaint and appeals processes for removed content, and to biannually report all removed content.

Oral arguments in the case mainly centered around the content-moderation restrictions. In their ruling, the high court asks whether Texas’ law would apply to companies or platforms not traditionally thought of as social media, like Etsy, Uber or Gmail.

“The online world is variegated and complex, encompassing an ever-growing number of apps, services, functionalities, and methods for communication and connection,” Kagan wrote, adding that the lower court must determine what entities the law covers.

Wilkens of the Knight First Amendment Institute said he expects the case will go back to the district court, where the parties will engage in further discovery and perhaps even present a list of what companies are covered by the law.

The Supreme Court released another decision pertaining to social media on Wednesday where the court examined whether federal officials unlawfully pressured social media platforms to censor COVID-19 and election-related content. That case questioned if the government’s actions, including frequent communications and recommendations to the platforms, infringed on free speech rights; ultimately, the plaintiffs could not demonstrate a direct connection, leading to a lack of standing to sue.

Disclosure: Facebook has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.


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This article originally appeared in The Texas Tribune at https://www.texastribune.org/2024/07/01/supreme-court-texas-social-media-law-content-moderations/.

The Texas Tribune is a member-supported, nonpartisan newsroom informing and engaging Texans on state politics and policy. Learn more at texastribune.org.

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