Tech industry associations NetChoice and the Computer Communications Industry Association have appealed directly to the Supreme Court for an emergency deferral of the Texas social media law known as HB 20. The law, which creates liability for content moderation decisions based on “the the user or any other person” could make it impossible to ban hate speech — or even moderate platforms. HB 20 was successfully blocked in court late last year and then unblocked by an appeals court on Wednesday without explanation.
“Texas HB 20 deprives private online businesses of their voice rights, prohibits them from making constitutionally protected editorial decisions, and forces them to publish and promote objectionable content,” said NetChoice advisor Chris Marchese in a press release. “The First Amendment prohibits Texas from forcing online platforms to host and promote foreign propaganda, pornography, pro-Nazi statements, and spam.”
During the hearing leading up to the court’s decision to unblock HB 20, the panel of three judges on the Fifth Circuit appeared confused about many of the basic terms used — one judge seemed to think Twitter had no website. was, and another seemed to think there was no difference between a phone company like Verizon and a social media company like Twitter or Facebook.
NetChoice won a similar case in Florida last year, making the constitutional issues in this case even more urgent to address.
By going straight to the Supreme Court, NetChoice and CCIA chose to skip “en banc” review, where the Fifth Circuit would have assembled a larger panel to review the original panel’s decision. NetChoice’s emergency stay request will be reviewed by Judge Samuel Alito, who can unilaterally decide whether to refer the case to court. If the request is granted, it means that HB 20 will be blocked again, pending further legal proceedings.
Right now, the Supreme Court has a firm conservative majority, including Justice Clarence Thomas, whose views on Twitter moderation appear to be reflected in HB 20, and whose wife’s Facebook posts promoted the January 6 rally that culminated in an uprising and also resulted in Donald Trump being banned from Twitter.