OPINION: This article may contain commentary which reflects the author's opinion.
Many believe that the Supreme Court is a hyper-partisan, divided institution, but in some cases strange alliances are formed.
That happened Tuesday when the court blocked a Texas law that would have hindered the way social media companies can moderate content in a 5 – 4 decision that saw conservatives Justices Amy Coney Barrett, Brett Kavanaugh and John Roberts side with liberal Justices Stephen Breyer and Sonia Sotomayor in the majority decision, CNBC reported.
It also saw liberal Justice Elena Kagan join conservative Justices Clarence Thomas, Neil Gorsuch and Samuel Alito in dissent.
The decision did not rule on the merits of the law but simply allowed it to be blocked while federal courts decide if it can be enforced.
The law, HB 20, was signed by Republican Texas Gov. Greg Abbott in response to the beliefs of some that social media companies censor conservatives more harshly than liberals.
“We will always defend the freedom of speech in Texas, which is why I am proud to sign House Bill 20 into law to protect first amendment rights in the Lone Star State,” the governor said when he signed the bill into law in September 2021. “Social media websites have become our modern-day public square. They are a place for healthy public debate where information should be able to flow freely — but there is a dangerous movement by social media companies to silence conservative viewpoints and ideas. That is wrong, and we will not allow it in Texas. I thank Senator Bryan Hughes, Representative Briscoe Cain, and the Texas Legislature for ensuring that House Bill 20 reached my desk during the second special session.”
“House Bill 20 prevents social media companies with more than 50 million monthly users banning users simply based on their political viewpoints. The law also requires several consumer protection disclosures and processes related to content management on the social media sites to which the bill applies. These sites must disclose their content management and moderation policies and implement a complaint and appeals process for content they remove, providing a reason for the removal and a review of their decision. They also must review and remove illegal content within 48 hours. House Bill 20 also prohibits email service providers from impeding the transmission of email messages based on content,” the press release said.
Two industry groups representing tech companies that include Facebook, Twitter, Amazon and Google, said in their emergency application with the court, “HB20 would compel platforms to disseminate all sorts of objectionable viewpoints, such as Russia’s propaganda claiming that its invasion of Ukraine is justified, ISIS propaganda claiming that extremism is warranted, neo-Nazi or KKK screeds denying or supporting the Holocaust, and encouraging children to engage in risky or unhealthy behavior like eating disorders.”
Texas Attorney general Ken Paxton said that is not that case and argued that the law does not “prohibit the platforms from removing entire categories of content.”
“So, for example,” he said, “the platforms can decide to eliminate pornography without violating HB 20 … The platforms can also ban foreign government speech without violating HB 20, so they are not required to host Russia’s propaganda about Ukraine.”
In his dissent, Justice Alito acknowledged the importance of the case for both the social media companies and the states that want to regulate how content is moderated.
“This application concerns issues of great importance that will plainly merit this Court’s review,” he said. “Social media platforms have transformed the way people communicate with each other and obtain news. At issue is a ground-breaking Texas law that addresses the power of dominant social media corporations to shape public discussion of the important issues of the day.”
He said he would have allowed the law to stay in effect as the case is argued in courts and said that he has “not formed a definitive view on the novel legal questions that arise from Texas’s decision to address the ‘changing social and economic’ conditions it perceives.”
“But precisely because of that, I am not comfortable intervening at this point in the proceedings,” he said. “While I can understand the Court’s apparent desire to delay enforcement of HB20 while the appeal is pending, the preliminary injunction entered by the District Court was itself a significant intrusion on state sovereignty, and Texas should not be required to seek preclearance from the federal courts before its laws go into effect.”
