Social Media Platforms Resist Regulation as Electronic Public Squares, Seeking U.S. Supreme Court Intervention in Ongoing Federal Appellate Litigation Against Texas

Netchoice, LLC and Computer and Communications Industry Association v. Ken Paxton, Attorney General of Texas, No. 21A720 (U.S. Supreme Court). Emergency Application filed May 13, 2022


When the state of Texas passed legislation that would limit the ability of internet social media sites such as Facebook, Twitter, YouTube and others to remove or to ban content the sites deemed undesirable or outside the private companies’ internal rules and user agreements, those companies immediately sought to enjoin the legislation, arguing that Texas’s bill violates the corporations First Amendment rights, including but not limited to exercising editorial discretion over content provided by others. 

The associations advocating for the social media sites successfully obtained an injunction halting the operation of the Texas law.  Recently the United States Court of Appeals, without issuing an opinion detailing its reasoning, stayed the operation of the injunction, prompting the associations to seek the United States’ Supreme Court’s intervention to vacate the appellate court’s order.

Texas, by its Attorney General, observes that the massive online presences of social media sites has caused them to become modern public squares and, as such, when a site its open to some views, it must be open to all.  Alternatively, Texas asserts that the platforms’ conduct may be regulated much as the conduct of common carries is, and that it is not speech but the act of removal of content or banning of posts or accounts that is open to statutory intervention without concern for the First Amendment. 

Social media sites strenuously resist being required to offer appeals from removal of content or banning of accounts, and complain that that reporting requirements imposed by Texas are overwhelming.  The companies state that compliance with Texas’s regime would be prohibitively costly and would require remaking of the corporations business methods, actions which would take a decade to accomplish.

The sites are extremely concerned because active operation of the Texas legislation will impact all operations throughout the United States. 

The petitioning associations enjoy the support of more than a dozen industry-related entities, First Amendment advocates, and others with interest in online activity.

Texas, by comparison, is supported by other states and a few critical voices.

The timing of issuance of a decision on the emergency petition, addressed to Justice Alito as justice for the Fifth Circuit, but in light of the stringent briefing deadline imposed on the parties, it may be that a decision will be forthcoming very soon.

The legislation in issue:

Text of Texas H.B. 20

The emergency petition, Texas’s opposition, and petitioners’ reply:

21A720 Supreme Court Vacatur Application

21A720 Response to Application

21A720 Reply in Support of Emergency Application

Amicus Submissions for Applicants:

21A720 Amicus Brief of Christopher Cox

21A270 Amicus Brief of Reporters Committee for Freedom of the Press, et al.

21A720 Amicus Brief of Professor Eric Goldman

21A720 Amicus Brief of Floor64 d/b/a/Copia Institute

21A720 Amicus Brief of Center for Democracy and Technology, et al.

21A720 Amicus Brief of TechFreedom

21A720 Amicus Brief of Chamber of Progress, et al.

21A720 Amicus Brief of The Cato Institute

Amicus Submissions for Respondent:

21A720 Amicus Brief of Philip Hamburger, et al.

21A720 Amicus Brief of Florida and 11 Other States

 

 

 

 

 

 

 

 

Secular Semaphore:  Boston’s Sole Exclusion of Christian Flag in Otherwise Open Participation Program Faces Supreme Court Challenge


Shurtleff, et al. v. City of Boston, et al., No. 20-1800 (S. Ct.). Oral argument set for January 18, 2022 at 10:00 a.m.


Upon application, the City of Boston permits groups to utilize spaces owned or managed by the city for commemorative purposes.  Administered in conjunction with those spaces is a three flagpole display at Government Center, Boston’s City Hall.  

Applications appear to have been freely granted up until 2017, when a group called “Camp Constitution” applied to the city property manager for permission to raise a “Christian flag” at Government Center to commemorate the role of the Judeo-Christian tradition in Massachusetts history.  

Boston had never before denied an application for use of the flagpoles, but Camp Constitution’s application was denied not on the basis of the appearance of the flag proposed to be raised, identical in material respects to the Bunker Hill flag, but on the basis of its name, “Christian.”

The city property manager feared that the brief display of the flag raised Establishment Clause concerns.  The city’s law department concurred, as did the United States Court of Appeals, following judgment on an agreed upon statement of facts in the United States District Court.

The First Circuit perceived the flagpoles and the flags displayed upon them to be government speech exempted from the First Amendment speech clause.  

Camp Constitution, by its leader, Harold Shurtleff, argues before the Supreme Court that the government speech construction offered by the First Circuit was in error.  The city spaces available for private use, open to all but Camp Constitution, are forums governed by the rules applicable to such spaces, which preclude the government from excluding views concerning religion. 

Boston argues that Shurtleff is wrong on the facts, notwithstanding that the case was presented on an agreed-upon statement of facts before the trial court.  The flagpoles are exclusively government property, Boston asserts, such that any use of the flagpoles is or becomes government speech excluded from First Amendment speech constraints.

The Solicitor General of the United States has joined the proceedings as amicus supporting reversal of the First Circuit decision, asserting that the questions raised in the case affect federally managed lands and federal agencies, such as the U.S. Park Service, upon which properties many groups frequently seek to hold events.

Oral argument will be held at 10:00 a.m. today.

Shurtleff v. Boston, No. 20-1800 Brief of Petitioners

Shurtleff v. Boston, No. 20-1800 Brief of Respondents

Shurtleff v. Boston, No. 20-1800 Reply Brief of Petitioners

Shurtleff v. Boston, No. 20-1800 Brief of the United States as Amicus Curiae