Emergency Appeal Expected as 5th Circuit Allows Texas to Enforce Social Media Law

The court decision wasn’t unanimous, said a footnote in Wednesday’s order. Judges Edith Jones, Andrew Oldham and Leslie Southwick heard the case, but the order didn’t specify who disagreed. While the case continues at the 5th Circuit, the decision means Texas may start enforcing its law prohibiting larger platforms from blocking, deplatforming or otherwise discriminating against users based on viewpoint or location within Texas. The case is on appeal from the U.S. District Court in Austin, which had agreed with the constitutional challenge by NetChoice and the Computer and Communications Industry Association (CCIA).

“The 5th Circuit made the right call here, and I look forward to continuing to defend the constitutionality” of the state law, Texas Attorney General Ken Paxton (R) tweeted Wednesday. Florida Attorney General Ashley Moody (R), who's defending a similar Florida law at the 11th Circuit and led a multistate amicus brief supporting Texas at the 5th, also welcomed the decision. “We will continue to fight for openness and transparency on social media,” she tweeted Thursday.

“No option is off the table,” said CCIA President Matt Schruers. “We will do what is necessary to ensure that the free market, not government fiat, decides what speech digital services do and do not disseminate.” NetChoice plans “to appeal the order immediately,” said General Counsel Carl Szabo. The Texas law “is an assault on the First Amendment -- and we remain confident the courts will strike it down as unconstitutional,” he said. “In the meantime, unfortunately, Americans -- especially Texans -- will be negatively impacted.” Facebook and Twitter declined to comment.

Plaintiffs' options include seeking en banc review by the full 5th Circuit, asking the Supreme Court for emergency review or waiting for the case to return to the lower court “and duke it out there,” emailed NetChoice Policy Counsel Chris Marchese. Samuel Alito is the Supreme Court justice for the 5th Circuit. Marchese said it’s somewhat “uncharted territory” for an appeals court to rule on a party’s motion to stay an injunction while considering the underlying appeal’s merits.

FCC Commissioner Brendan Carr is “pleased to see the support continuing to build for common sense, pro-speech reforms -- from bills in Congress to state law efforts,” the Republican said in a Thursday statement. The appeals court order “is welcome news in the ongoing effort to hold Big Tech accountable.” Chairwoman Jessica Rosenworcel didn’t comment.

“The court’s ruling gives us no insight into why the court took this step,” said Scott Wilkens, senior staff attorney at Columbia University’s Knight First Amendment Center. Judges should have ruled on “the merits of the appeal instead of taking this quite dramatic step while the appeal is still pending in the court.” The ruling “is terrible for free speech online” because it violates “companies’ First Amendment rights to decide what content should and shouldn’t be on their platforms,” and hurts “users across the political spectrum” by allowing objectionable content and banning warning labels on misinformation, he said.

Reversal, Lawsuits Expected Soon

The order is a sign that judges soon “are likely to reverse the district court,” said Del Kolde, Institute for Free Speech (IFS) senior attorney. IFS supported the Texas law, which isn’t “perfect” but doesn’t have the same flaws as Florida’s law, like creating special statuses based on speaker categories, he said.

Southwick seems most likely to be the dissenting jurist, based on what judges said at oral argument, said Kolde. It’s unclear how Alito would respond to an emergency appeal of Wednesday’s order since he hasn’t spoken on the issue, said Kolde. Justice Clarence Thomas has made statements about social platforms that could be positive for states seeking to regulate them, the lawyer noted. If the 11th Circuit creates a circuit split striking down part or all of Florida’s similar law, it would increase chances of a SCOTUS case, he said.

TechFreedom’s Corbin Barthold is 99% sure “the fact they granted the motion to stay means they’re planning to reverse.” Expect an opinion “very soon,” said the internet policy counsel, noting he doesn’t usually predict what courts will do. In such a significant case, Alito probably would circulate any plaintiffs’ possible emergency appeal to the full court rather than rule on it himself, said Barthold. If the 11th Circuit later creates a split, which seems probable, the Supreme Court is “overwhelmingly likely” to resolve it, he said. TechFreedom filed an amicus brief supporting plaintiffs.

Parts of the law banning so-called censorship “allow for enforcement actions immediately,” emailed David Greene, civil liberties director for Electronic Frontier Foundation, another amicus that supported plaintiffs. Greene predicted Paxton or private users will file lawsuits “in the next few days.”

It’s “virtually impossible” for social websites to comply with the Texas law quickly, said Barthold: Don’t expect them to try. “They’re going to let the litigation come” and “start the trench warfare of … battling this out in courts.” Meanwhile, the 5th Circuit action will be a “huge signal to a lot of other states” to make their own laws, he said. The appeals court’s short order was “startling,” said Corbin. "To issue a decision on such a novel and impactful law without an opinion is radical,” with “a hint of … anti-Big Tech populist spite.”

Expect other states to be encouraged to pass similar laws, said Kolde. He disagreed social media companies can't comply. “Anyone who’s opposing a regulation that’s going to change” how it does business “is going to say it’s impractical,” but “these are probably the most profitable companies in the world today, and so if anybody could do it, they could probably do it.”