The Supreme Court on Tuesday re-imposed an injunction blocking Texas’s controversial HB20 social media law from taking effect while federal courts determine whether it can be enforced.
A decision on the constitutionality of the law may ultimately be determined by the Supreme Court.
The recently passed Texas law prohibits Twitter, YouTube and Google from moderating or removing any posts based on “viewpoint,” as long as the posts are not illegal.
Tech companies have argued that the measure clearly violates their First Amendment right to decide what to publish on their platforms, and that it would allow hateful and dangerous content to swamp social media, such as Russia’s propaganda defending its invasion of Ukraine, neo-Nazi rants against Jews and other groups, and posts encouraging unhealthy or dangerous behavior among children.
Republican Texas Attorney General Ken Paxton — who has also been engaged in an ongoing legal battle with Twitter, claiming that the platform’s moderation may have violated a state law against false advertising — argued HB20 does not stop platforms from removing or prohibiting “entire categories of content,” like pornography or posts by foreign governments.
Five Supreme Court justices voted to uphold the block, although liberal Justice Elena Kagan voted to let the law remain in effect until the courts rule on its legality. A dissent written by Justice Samuel Alito was joined by fellow conservatives Clarence Thomas and Neil Gorsuch.
Former Rep. Christopher Cox (R-Calif.), one of the authors of Section 230, which protects online platforms from legal actions based on the content of users’ posts but also includes a provision protecting their ability to moderate content, wrote an amicus brief supporting the request for an emergency stay of HB20 that argued that Section 230 preempts the state law.
Section 230 has been criticized, for different reasons, by both liberals and conservatives in Congress. Three Democratic senators sponsored the currently in-limbo Safe Tech Act, which would stop online platforms from being able to claim immunity under Section 230 for alleged violations of federal or state criminal or civil rights laws, antitrust laws, stalking and intimidation laws, international human rights laws or civil actions for wrongful death. They would also not be shielded from complying with court orders.
Many conservatives support killing Section 230.
Those may include Justice Thomas, who last year suggested in a concurrence that online platforms are “sufficiently akin to common carriers” to possibly be excluded from immunity, points out CNBC.