Net Choice, et al. v. Paxton, Attorney General of Texas, No. 21A720, 596 U.S. ____. Order granting emergency petition entered May 31, 2022.
Texas legislation prohibiting content-based deplatforming or deprioritizing of social media posts remains subject to an injunction precluding its effect pending determination of the merits of challenges of the constitutionality of the statute. The Supreme Court has vacated the Fifth Circuit’s stay of a district court injunction precluding the effect of the law.
Justice Alito has dissented from the grant of the petition, stressing that the questions presented by the case invite the Court’s review, particularly as those questions do not fit squarely within First Amendment precedent. Neither public event, publication, public marketplace, or common carrier provisions anticipate the advent of and market power of social media platforms.
The dissenting justice notes that the state perceives impossible incongruity between the social media platforms’ position that they may enjoy immunities under Section 230 of the Communications Decency Act of 1996 for publication of others’ content while at the same time enjoying First Amendment protection for refusing to publish that content.
Justice Alito observes that the likelihood of success on the merits must be demonstrated as to all aspects of the injunctive relief provided, but this is not the case with respect to the disclosure requirements of the Texas law concerning social media platforms’ publication standards, which are to be reviewed under less stringent standards for constitutional review of commercial speech.
Of importance is that the Texas law applies only prospectively, a circumstance which, in a certain light, renders injunctive relief pending review somewhat superfluous, as no action against any social media company has yet occurred and any action remains open to constitutional challenge if and when it occurs.
The novelty of the questions presented, while inviting exploration, does not justify federal interference in state sovereignty, which is the result where, as here, the Supreme Court serves as a source of preclearance authority.
Justice Alito’s dissent has been joined by Justices Thomas and Gorsuch. Justice Kagan would deny the emergency petition, but has neither joined the dissent nor written her own opinion.