Two tech-industry groups asked the Supreme Court on Thursday to review a hotly debated Texas law that restricts the ability of social media platforms to moderate content, potentially opening the door for a major reinterpretation of First Amendment precedent.
The contested state law, known as HB 20, would allow lawsuits against tech companies accused of suppressing user posts or accounts. And it would make it illegal for major social media platforms to “block, ban, remove, de-platform, demonstrate, de-boost, restrict, deny equal access or visibility, or on, expression of opinion.” other ways of discriminating”.
The Supreme Court issued a temporary stay of the law this year as litigation over the measure continued in lower courts. But Thursday’s petition brings the law back to the court, this time for a possible decision on the merits.
If the Supreme Court agrees to hear the case, legal experts could say it could become a lightning rod in the broader debate about online speech and the rights of tech platforms to run their own websites.
For years, courts have ruled that governments cannot force private actors to moderate the speech of others. That’s why the Texas law is unconstitutional, according to the trade organizations, which filed a petition in the court Thursday.
“HB20 violates the core rights of petitioners’ members by denying them editorial control over their own websites and forcing them to publish speeches they do not wish to disseminate,” the Computer & Communications Industry Association and NetChoice wrote in their filing.
Earlier this year, a federal appeals court opposed the two groups. In September, the Fifth Circuit Court of Appeals said in a ruling, “We reject the idea that corporations have a free-ranging First Amendment right to censor what people say.”
That same month, the state of Florida asked the Supreme Court to hear a similar case involving one of its statutes. At the heart of this fight is SB 7072, which allows political candidates to sue social media companies if they are blocked or removed from online platforms for more than 14 days. NetChoice and CCIA are also involved in this case after challenging Florida’s law after it was signed into law last year.
Several Supreme Court justices have expressed an interest in hearing cases dealing with content moderation, citing the tremendous role social media now plays in democratic discourse.
Commenting on the court’s procedural decision to temporarily block HB 20 in Texas, Justices Samuel Alito, Clarence Thomas and Neil Gorsuch said the case raises questions of “great importance” in relation to a “groundbreaking” law that is moving “the power of dominance” engages social media companies to shape public discussion about the important issues of the day.”
The Court has already agreed to hear two cases touching on liability for digital platforms this term: Gonzalez v. Google, a case on whether YouTube’s recommendation algorithms should be immunized from terrorism-related claims; and Twitter v. Taamneh, which also asks whether social media platforms can be sued under US anti-terrorism laws for hosting content from terrorist organizations.