The U.S. Court of Appeals for the Fifth Circuit issued a stay Wednesday that will temporarily prevent a Texas law aimed at protecting free speech online from taking effect.
Passed a year ago, HB 20 would prevent social media companies from censoring certain viewpoints online.
The order reversed a decision in September that upheld the law. Last month, NewsBusters reported that Fifth Circuit Judge Adam Oldham rejected the idea that “corporations have a freewheeling First Amendment right to censor what people say.”
Wednesday's court order indicates that the motion was unopposed by Texas, suggesting that the state is waiting to see if the Supreme Court decides to hear the case.
The issue could come before the Supreme Court this term. Justices Samuel Alito and Clarence Thomas have both questioned the influence and power of social media platforms.
In a May opinion that vacated the stay of HB 20, Alito wrote that the law “concerns issues of great importance that will plainly merit this Court’s review.”
He added that social media platforms have “transformed” communication and news reporting.
“Social media platforms have transformed the way people communicate with each other and obtain news,” Alito wrote.
Last year, Thomas wrote in a concurring opinion that “private digital platforms” have the most power to “cut off speech.”
Thomas further wrote in his opinion: “[T]he right to cut off speech lies most powerfully in the hands of private digital platforms. The extent to which that power matters for purposes of the First Amendment and the extent to which that power could lawfully be modified raise interesting and important questions."
The case originally questioned whether former President Donald Trump could “block” users on Twitter. Thomas also argued that social media is “sufficiently akin” to a common carrier, like a phone company or other public utility.
Thomas further reasoned that dominant digital platforms were different than other entities with regard to the “substantial barriers to entry” that exist in their sphere:
Similar to utilities, today’s dominant digital platforms derive much of their value from network size. … To be sure, much activity on the Internet derives value from network effects. But dominant digital platforms are different. Unlike decentralized digital spheres, such as the e-mail protocol, control of these networks is highly concentrated. Although both companies are public, one person controls Facebook (Mark Zuckerberg), and just two control Google (Larry Page and Sergey Brin). No small group of people controls e-mail.
A tech group suing the state over the constitutionality of the law appears eager for the Supreme Court to step in as well.
NetChoice, a pro-censorship tech group that lists Amazon, Google, and Meta among its associate members, claimed in a statement that the law will “bury the internet in vile content.” The group also expressed relief that the law will not take effect “until the case can be heard by the Supreme Court.”
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