A Texas law that would force social media companies to host objectionable content is once again suspended while litigants request the Supreme Court weigh in on the issue. Last week the Fifth Circuit blocked the notorious legislation, known as H.B. 20, from taking effect until at least December, putting on hold its own controversial September ruling that seemingly disregards a century of First Amendment law. The statute had previously made a trip to the Supreme Court, where an unusual 5-4 majority granted a request for an emergency stay through its opaque “shadow docket” process.
The Texas law is one of a handful passed in Republican-led state legislatures aimed at making social media platforms carry a variety of users’ opinions — whether those websites want to or not. In Florida, Gov. Ron DeSantis waded into the fray last May with a similar law that has now been temporarily blocked by both a federal district court and the Eleventh Circuit. Earlier this month, Florida petitioned the Supreme Court to overturn that order. Between these two petitions and the recently granted challenges to CDA Section 230 (a key protection for online speech), this Supreme Court term could have major First Amendment implications.
The earlier Texas decision upholding H.B. 20 attempts to draw a legal distinction between the judgment exercised in social media moderation and that used by newspaper editors. But if legislators and courts can use this sort of blatantly unconstitutional law to dictate what social media companies must host, it’s not hard to imagine they’d try the same with news outlets next.
In fact, we’ve already seen the outlines of that effort, through campaigns to erode the First Amendment rights enshrined by cases like New York Times v. Sullivan. Those rights were hard-fought, and far from inevitable. Although the Texas and Florida laws may have only an indirect impact on newsrooms for now, they represent an open front in an ongoing press freedom battle.
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