Under the law, Facebook, Twitter, YouTube, Instagram and other sites would be unable to block content based on its viewpoint. Gov. Greg Abbott, a Republican, said the law was a response to “a dangerous movement by social media companies to silence conservative viewpoints and ideas.”
But two big tech trade groups said it was an attempt to censor the content of private social media sites. The state could no more dictate the content of Twitter than it could tell newspapers what they can publish, their lawyers told the Supreme Court.
They asked Justice Samuel Alito, who handles emergency appeals from that region, to block the law. He referred it to the full court, which ordered enforcement of the law blocked.
Justices Clarence Thomas, Elena Kagan, Neil Gorsuch and Alito said the court should not have blocked the law.
Writing for the three conservatives, Alito said the court acted too quickly. “It is not at all obvious how our existing precedents, which predate the age of the Internet, should apply to large social media companies,” he wrote.
Alito said those platforms “have transformed the way people communicate with each other and obtain news.” The Texas law, he added, “addresses the power of dominant social media corporations to shape the public discussion of the important issues of the day.”
The tech companies said the law would compel platforms to disseminate Russian and ISIS propaganda, neo-Nazi or KKK screeds, or posts encouraging children to engage in such risky behavior as eating detergent pods.
The websites could not comply with the law “without irreversibly transforming their worldwide online platforms to disseminate harmful, offensive, extremist, and disturbing content,” they said, because the regulation would prohibit companies from enforcing their hate-speech policies.
Two trade groups, NetChoice and the Computer and Communications Industry Association, filed a lawsuit to challenge the Texas law. A federal district court judge issued an injunction blocking its enforcement, but that order was lifted by the U.S. Court of the Appeals for the 5th Circuit.
The groups’ appeal to the Supreme Court was filed by Paul Clement, a former U.S. solicitor general during the George W. Bush administration, and two former Texas state solicitors, Scott Keller and Kyle Hawkins.
Organizations that advocate free expression on the internet, including the Electronic Frontier Foundation, called in a friend-of-court brief for blocking the Texas law. They said it would make it harder for sites to remove content promoting suicide and self-harm, promotions of animal abuse, and content inappropriate for children.
“Platforms may remove even more speech to appear more consistent in the enforcement of their content policies, with the result that users will have less freedom of expression, particularly on controversial subjects,” the groups said.
Texas urged the court to let the state enforce the law. The content regulation “does not dictate that any specific message that the platforms must host — only that they must treat their customers equally regardless of those customers’ stated viewpoints.”
Judd Stone, the state’s solicitor general, said Texas has “compelling interests in ensuring both the wide dissemination of ideas from many and varied sources and the free exchange of ideas within the state.”
He said the social media companies would remain free to remove harmful content, as long as they did it on a viewpoint-neutral basis, such as, for example, through a rule banning all spam or all pornography.
Florida passed a similar law last year, but lower federal courts have blocked its enforcement. It was proposed by Gov. Ron DeSantis in January 2021, shortly after several social media sites banned postings from then-President Donald Trump.
The U.S. Court of Appeals for the 11th Circuit, in its ruling barring enforcement of the Florida law, said, “Put simply, with minor exceptions, the government can’t tell a private person or entity what to say or how to say it.”
A Pew Research Center study last year found that about three-quarters of adults said it was likely that social media sites censor political viewpoints they find objectionable. Republicans overwhelmingly held that view, the study said.