Dueling ideas about free speech
The Supreme Court yesterday blocked a Texas law aimed at stopping what its supporters called censorship of conservative voices by online platforms. Tech companies said the law violated their First Amendment rights and limited their ability to moderate content.
The court granted an emergency request to block the law from trade associations representing major tech companies like Facebook and Twitter. The speedy 5-to-4 decision does not necessarily mean that the justices would ultimately agree with the tech industry’s claims in a full review. But it does mean that a majority disagreed with an appeals court ruling last month that allowed the law to go into effect while challenges were pending.
This is a fight over competing visions of free speech. The Texas law, H.B. 20, bans platforms with more than 50 million active monthly users from removing posts based on the views they express, even if they violate the companies’ content moderation policies. The decision yesterday gave the tech industry groups NetChoice and the Computer & Communications Industry Association another temporary win, but there is a long legal road ahead.
“While today’s victory is welcome news, we’re only halfway there,” NetChoice’s policy counsel, Chris Marchese, said in a statement on the ruling. Lower courts will decide on the legal issues. And appeals are very likely to follow because the Texas attorney general, Ken Paxton, and the tech companies appear similarly determined to win.
The Supreme Court may end up reviewing the issues in full. First Amendment experts generally agree that the government cannot tell private companies how to handle speech or content on their platforms, and the law on this appears well settled. But the Texas situation is raising questions. A majority of justices issued a terse decision on the emergency petition that did not address the constitutional claims. But Justice Samuel Alito, joined by his colleagues Justices Clarence Thomas and Neil Gorsuch, dissented at length, suggesting that they may be willing to rethink what seemed like fixed principles. That makes this dissent both surprising and significant, said Genevieve Lakier, an expert on the First Amendment at the University of Chicago Law School.
Justice Elena Kagan, a liberal, noted only that she would deny the tech companies’ request. Some observers suspect that this was because she did not want a case from the court’s shadow docket — where decisions are made quickly and with minimal process — to disrupt the status quo, and that it was not a reflection on the constitutionality of the Texas law.
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