Two technology industry groups asked the Supreme Court on Thursday to review a hotly debated Texas law restricting social media platforms’ ability to moderate content, potentially opening the door to a sweeping reinterpretation of First Amendment precedent.
The challenged state law, known as HB 20, would allow for lawsuits against tech companies accused of suppressing user posts or accounts. And it would make it illegal for large social media platforms to “block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression.”
The Supreme Court issued a temporary stay of the law this year, as litigation over the measure continued in the lower courts. But Thursday’s petition brings the law back before the Court, this time for a possible ruling on the merits.
If the Supreme Court agrees to hear the case, legal experts have said, it could become a lightning rod in the wider debate over online speech, and the rights of technology platforms to manage their own websites.
For years, courts have held that governments may not force private actors to host others’ speech. That is why Texas’ law is unconstitutional, according to the trade organizations petitioning the Court on Thursday.
“HB20 infringes the core First Amendment rights of Petitioners’ members by denying them editorial control over their own websites, while forcing them to publish speech they do not wish to disseminate,” wrote the Computer & Communications Industry Association and NetChoice in their filing.
Earlier this year, a federal appeals court had sided against the two groups. In September, the Fifth Circuit Court of Appeals said in a ruling: “We reject the idea that corporations have a freewheeling 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 laws. At the center of that battle 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 that case, having challenged Florida’s law after it was signed last year.
Multiple Supreme Court justices have expressed interest in hearing cases that deal with content moderation, citing the enormous role that social media now plays in democratic discourse.
In an opinion on the Court’s procedural decision to temporarily block Texas’ HB 20, Justices Samuel Alito, Clarence Thomas and Neil Gorsuch said the case raises questions of “great importance” concerning a “ground-breaking” law that addresses “the power of dominant social media corporations to shape public discussion of the important issues of the day.”
The Court has already agreed to hear two cases this term that touch on liability for digital platforms: Gonzalez v. Google, a case about whether YouTube’s recommendation algorithms should be immunized from terrorism-related lawsuits; and Twitter v. Taamneh, which also asks whether social media platforms can be sued under US antiterrorism laws for hosting the content of terrorist organizations.