Technology industry organizations NetChoice and the Computer Communications Industry Association have appealed directly to the Supreme Court for an emergency stay of the Texas Social Media Act known as HB 20. The Act, which creates responsibility for content moderation decisions based on the “point of view of the user or another person, “Could make it impossible to enforce bans on hate speech – or even moderate platforms at all. HB 20 was successfully blocked in court at the end of last year, and then overturned by an appellate court on Wednesday without explanation.
“Texas HB 20 deprives private online businesses of their speaking rights, prohibits them from making constitutionally protected editorial decisions, and forces them to publish and promote offensive content,” NetChoice adviser Chris Marchese said in a press release. “The first amendment bans Texas from forcing online platforms to host and promote foreign propaganda, pornography, pro-Nazi speech and spam.”
In the appeal hearing prior to the court’s decision to unblock HB 20, the panel of three judges on the Fifth Circuit appeared to be confused by many of the basic terms used – one judge seemed to think Twitter was not a website , and another seemed to think there was no difference between a phone company like Verizon and a social media company like Twitter or Facebook.
NetChoice won a similar case in Florida last year, which made the constitutional issues in this case even more urgent to address.
By going directly to the Supreme Court, NetChoice and CCIA have chosen to skip the “en banc” review, where the fifth circuit would have assembled a larger panel to review the original panel’s decision. NetChoice’s request for a stay in an emergency will be reviewed by Judge Samuel Alito, who may decide unilaterally or bring the case before the court as a whole. If the request is granted, the request will mean that HB 20 is blocked again, pending further lawsuits.
Currently, the Supreme Court has a solid Conservative majority, including Judge Clarence Thomas, whose views on Twitter moderation seem to repeat HB 20, and whose wife’s Facebook post promoted the January 6 meeting, which turned into an uprising and also resulted in Donald Trump gets banned on Twitter.