Supreme Court Restores Injunction Against Texas HB 20!–NetChoice v. Paxton

Yesterday, the Supreme Court granted the emergency application to restore the injunction against HB 20, Texas’ social media censorship law. The vote was 5-4, with Barrett, Breyer, Kavanaugh, Roberts, and Sotomayor voting to reinstate the injunction, and Alito, Gorsuch, Kagan, and Thomas voting to drop the injunction. Justice Alito wrote a dissent joined by Gorsuch and Thomas but not Kagan.

The 5-4 vote sounds like a nailbiter, but the fact that the appeal succeeded at all was a minor miracle. Appeals on the shadow docket are tricky because of the compressed time frame, the expedited briefing, the lack of oral argument, and the goal of overturning a lower court ruling (the 5th Circuit one-sentence order). As Justice Alito correctly says, it’s an “extraordinary relief.” So, reversing the Fifth Circuit was an unexpectedly positive outcome that preserves the status quo until more orderly appeals can proceed. Though it’s only a temporary victory, it’s still worth a small celebration–especially for the many lawyers and experts who worked very hard on a very tight timeline.

SCOTUS watchers have been buzzing over the lineup of judges: Kagan joining the Alito wing; Barrett and Kavanaugh joining the other side. I personally don’t put much stock in the headcounting of this vote because the appeal had enough procedural quirks to alienate everyone. The shadow docket is a suboptimal way to tackle hard issues, so I could see someone like Justice Kagan voting against shadow docket appeals on principle (though I understand she has occasionally voted to support them). At the same time, the Fifth Circuit’s unleashing of HB 20 without any explanation and without a delay to allow for orderly appeals was condemnable (and ironic, in that HB 20 requires Internet services to provide more explanations than the Fifth Circuit provided in upholding the explanations requirement). I could see proceduralists disgusted by the Fifth Circuit’s disregard of the rule of law, even if they ultimately agree with the Fifth Circuit on the merits. Because procedural concerns pervade every aspect of this appeal, I’m not confident that the votes in this appeal predict future votes.

My understanding is that the injunction will dissolve after the Fifth Circuit issues its written opinion (unless the panel magically changes its mind and affirms the district court). At that point, I expect the Fifth Circuit opinion will trigger a standard petition for certiorari. Depending on how long it takes the Fifth Circuit to issue the opinion (and with the injunction in place, I’m fine if they want to drag their feet), it’s possible/likely that Florida will appeal the 11th Circuit ruling in NetChoice v. Attorney General first. (NetChoice/CCIA could also try to force Florida’s hand by appealing the adverse transparency rulings). Given the strength of the 11th Circuit decision, it would be ideal to have that opinion frame SCOTUS’s consideration of the topic.

The rest of this post will critique Justice Alito’s dissent:

  • “This application concerns issues of great importance that will plainly merit this Court’s review.” I agree. Everyone knows “social media censorship” laws will require the Supreme Court’s review. It sounds like there are at least 3 votes to grant cert.
  • “At issue is a ground-breaking Texas law that addresses the power of dominant social media corporations to shape public discussion of the important issues of the day.” Some of Justice Alito’s biases may be creeping in. The law doesn’t explicitly apply only to “dominant” services, whatever that means. No one knows for sure which services the law reaches. However, if it applies to Twitter, then the law clearly reaches “non-dominant” players. Also, the reference to “shape public discussion” isn’t wrong, but all media entities have the power to shape discourse among their readers. Calling it out here sounds like Internet exceptionalism.
  • “The law before us is novel.” Yes and no. Government efforts to censor the media are as old as the media is. However, Texas’ law does introduce new and terrible policy ideas, such as the mandatory transparency requirements that have no equivalent among traditional media.
  • “It is not at all obvious how our existing precedents, which predate the age of the internet, should apply to large social media companies.” Again with the Internet exceptionalism. This question matters only if you disregard content moderation as an editorial function.
  • With respect to editorial transparency, Justice Alito cites Zauderer and says “If we were to agree with the applicants’ arguments, the decision could have widespread implications with regard to other disclosures required by federal and state law.” Maybe. However, as my paper explains, mandated transparency into editorial operations has censorial effects that are not present with standard commercial disclosures. When SCOTUS grants cert, I expect to file a brief that explains why Zauderer is the wrong standard and why mandatory editorial transparency can and should be distinguished from other types of compelled commercial speech.
  • “I have not formed a definitive view on the novel legal questions that arise from Texas’s decision to address the ‘changing social and economic’ conditions it perceives.” I accept this statement from Justice Alito because I think he will be persuaded that Texas’ law is unconstitutional once properly briefed. The law really is that terrible. However, I’ll confess that it’s hard to avoid cynical disbelief about his claim.
  • “the preliminary injunction entered by the District Court was itself 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.” WHAT? Texas’ law is a significant intrusion into the First Amendment, so damn right that it needs judicial blessing before censorship goes into effect. That’s been the basis of every facial challenge on First Amendment free speech grounds. Also, court-watchers have called out Justice Alito’s possibly inconsistent votes on using the shadow docket to pre-clear state laws.

Case CitationNetChoice, LLC v. Paxton, 2022 WL 1743668 (US Sup. Ct. May 31, 2022)

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