Two tech industry groups are continuing a fight against a Texas social media law they say violates the First Amendment in a petition filed Thursday to the U.S. Supreme Court.
House Bill 20, which lawmakers passed into law in 2021, lets users sue Facebook, Twitter and other large social media companies if they are blocked from the platforms or their posts are removed. The law has been challenged as unconstitutional since last year.
Arguing the law infringes on the speech rights of businesses, the petition filed by NetChoice and the Computer & Communications Industry Association is seeking a reversal of a September decision by the 5th U.S. Circuit Court of Appeals that let the law stand.
“We’re confident the U.S. Supreme Court will uphold the First Amendment by concluding that the government may not force private businesses to disseminate vile content or overrule their private editorial decisions,” said NetChoice Counsel Chris Marchese.
Allowing Texas to enforce HB 20 would hurt social media platforms’ ability to enforce content moderation standards that protect users from spam, foreign propaganda, pornography and hate speech, opponents have argued.
“Texas’s social media law would pave the way for an internet overrun with bad actors and tie the hands of businesses trying to protect users. This law endangers internet users in the short term and democratic principles in the long term,” said Matt Schruers, president of the CCIA.
Republicans in the Texas Legislature pushed HB 20 during the 2021 legislative session, arguing that it was needed to counter social media platforms that improperly target conservative leaders and their messages.
The law was challenged later that year, leading to an injunction from U.S. District Judge Robert Pitman, who ruled in December that the Texas law cannot be enforced because it interferes with the platforms’ editorial discretion and their First Amendment right to moderate third-party content.
Then, in May 2022, the 5th U.S. Circuit Court of Appeals issued a one-sentence order that lifted the injunction, triggering an emergency filing to the Supreme Court in attempt to again block the law while the 5th Circuit continued to consider the constitutionality of HB 20.
The Supreme Court, in a 5-4 response, granted the two tech companies the injunction later that month.
Writing in dissent of the Supreme Court’s injunction, Justice Samuel Alito — joined by Justices Clarence Thomas and Neil Gorsuch — said he would have allowed Texas to continue enforcing HB 20, noting that the 5th Circuit Court reached the same decision after hearing oral arguments and reading legal briefs in the case.
“I would not disturb the Court of Appeals’ informed judgment,” Alito wrote. Liberal Justice Elena Kagan said, without elaborating, that she also would have sided with Texas.
With Thursday’s filing, the Supreme Court will again have the option to consider the case after its most recent injunction turned moot in September when the 5th Circuit found the law to be constitutional.
Several high-profile conservative lawyers have been involved throughout the appeals process now reaching the Supreme Court, including Paul Clement, U.S. solicitor general under President George W. Bush, and two former solicitors general of Texas — Kyle Hawkins and Scott Keller — who served under state Attorney General Ken Paxton.
Paxton’s office is defending HB 20.
Statesman reporter Chuck Lindell contributed reporting