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Conservative Justices Side With Lib Colleagues To Block Texas Social Media Law

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OPINION: This article may contain commentary which reflects the author's opinion.


Conservative justices appointed by former President Donald Trump sided with some of the U.S. Supreme Court’s liberals to strike down a Texas law that was designed to bar censorship of certain content.

CNBC reported Wednesday that the court ruled 5-4 to block the law from taking effect, seeing conservative Justices Amy Coney Barrett, Brett Kavanaugh and John Roberts side with liberal Justices Stephen Breyer and Sonia Sotomayor in the majority decision.

But the ruling also saw liberal Justice Elena Kagan join conservatives Clarence Thomas, Neil Gorsuch and Samuel Alito in dissent.

The justices did not rule on the merits of the law but rather issued an injunction to allow lower courts to decide whether it can constitutionally be enforced.

The law, known as HB 20, was signed by GOP Texas Gov. Greg Abbott in response to the state legislature’s general believe that conservatives are more widely censored and banned on the major social media platforms than liberals.

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“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 after he signed 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,” he added.

“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,” Abbott continued.

“House Bill 20 prevents social media companies with more than 50 million monthly users banning users simply based on their political viewpoints,” an accompanying press release added.

“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,” it continued.

“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 noted further.

Just the News reported:

Kagan did not join the three justices in explaining why she would have allowed the Texas law to remain in place, but Alito, also writing on behalf of Thomas and Gorsuch, was critical of the majority decision in his dissent.

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He argued that the court’s decision was 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.”

The justice noted, “It is not at all obvious how our existing precedents, which predate the age of the internet, should apply to large social media companies, but Texas argues that its law is permissible under our case law.”

Texas, among other arguments, made a case that enforcing the law did not amount to an infringement on the First Amendment, though the social media platforms, through two trade industry groups, argued on behalf of Facebook, Twitter, Amazon, and Google that it would constitute an infringement. The groups also argued that disturbing and false information could be spread.

“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,” the groups argued.

But Texas Attorney general Ken Paxton said that is not the case while further arguing that the law does not “prohibit the platforms from removing entire categories of content.”

“So, for example, 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,” he said.

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