Some Concerned by Close SCOTUS Vote in Texas Social Media Case

Justices Samuel Alito, Clarence Thomas, Neil Gorsuch and Elena Kagan opposed the request from NetChoice and the Computer and Communications Industry Association (CCIA) to vacate the 5th U.S. Circuit Court of Appeals’ unexplained order to lift a district court’s preliminary injunction on the Texas law. Alito, joined by Thomas and Gorsuch -- but not Kagan -- argued the tech groups aren’t likely to prevail on the merits and by vacating the stay SCOTUS is interfering with the authority of lower courts and the Texas state government. Wrote Alito: “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."

The Texas case will return to the 5th Circuit for an opinion on the merits of the preliminary injunction. “It is not at all obvious how our existing precedents, which predate the age of the internet, should apply to large social media companies,” Alito wrote. The justice hasn’t “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,” he said. “But precisely because of that, I am not comfortable intervening at this point in the proceedings.”

Kagan didn’t explain her opposition. The liberal justice's vote was surprising at first, but Kagan has been outspoken about not granting emergency relief through the so-called shadow docket, said State and Local Legal Center Executive Director Lisa Soronen. It's telling that Kagan didn’t join the dissenting opinion, she said. “If I was Texas, I wouldn't necessarily consider Kagan in my camp.”

Tuesday’s vote didn’t split on ideological grounds and Justice Stephen Breyer leaving soon means one vote is up in the air, said Soronen. Chief Justice John Roberts and Justice Brett Kavanaugh voting in favor of the emergency petition isn’t surprising because they tend to be pragmatic and could have been more skeptical of such a novel law, said Soronen: The ruling shows the issue isn’t going away and will likely return to SCOTUS.

Four justices were willing to allow the Texas law to be enforced, noted Scott Wilkens, senior staff attorney at Columbia University’s Knight First Amendment Center. “That certainly was surprising to me and troubling.” Wilkens, who believes the law clearly violates the First Amendment, cautioned that the vote wasn’t on the case’s merits.

The issue is likely to return to SCOTUS, either through an appeal of decisions by the 5th Circuit or the 11th Circuit, which is reviewing a similar Florida law, said Wilkens: That Alito circulated the emergency petition to all justices rather than ruling on it himself shows how important he views the case. The dissenting opinion might foreshadow Alito, Thomas and Gorsuch voting to uphold the Texas law or one like it, but Wilkens hopes the majority will at least strike down restrictions on content moderation, he said. Kavanaugh, while on the D.C. Circuit, authored an opinion that seemed to disagree with Thomas statements seeking to hear a case on social media platforms’ dominance, noted Wilkens.

The SCOTUS decision, in combination with the recent decision on the 11th U.S. Circuit ruling on Florida’s social media law, shows the courts are still “very suspicious” about laws restricting the speech of private companies, said Wilkinson Barker broadcast attorney David Oxenford. Any content provider, including broadcasters, should be concerned about laws that limit their ability to moderate the content they provide, Oxenford said.

“Nothing is certain other than the district court decision on the merits will be appealed by the losing party to the 5th circuit and, however they rule, ultimately to the Supreme Court,” emailed Brad Ramsay, general counsel for NARUC, which hasn’t taken a position. “The vote tally standing alone tells us nothing,” but the dissenting opinion suggests the court would accept certiorari when the Texas or Florida case comes to it, he said. Ramsay “was surprised by Kagan’s dissent, though not surprised that she didn’t sign” what Alito wrote, he said.

A majority strongly indicated “the First Amendment problem with the Texas law is glaring and fatal,” while three dissenters signaled “they want a more searching reconciliation of current First Amendment law,” emailed Ray Gifford, former Colorado Public Utilities Commission chair.

“While the decision was expected, the margin was narrower than anticipated and the decision and dissent opened the door to other expected legislative and legal actions that could challenge the ability of social media platforms to optimize their platforms for audience reach and advertising revenues,” New Street analysts wrote Wednesday: Legislators in other states could see opportunity in the slim margin to propose similar laws.

The Supreme Court should have been unanimous in blocking the Texas law, said Public Knowledge Legal Director John Bergmayer. “It is alarming that so many policymakers, and even Supreme Court justices, are willing to throw out basic principles of free speech to try to control the power of Big Tech for their own purposes, instead of trying to limit that power through antitrust and other competition policies.”

It’s “more than likely” that Kagan “simply applied the test for an emergency application and thought that this particular case at this stage … was not appropriate for the Supreme Court to grant review,” said Scott McCollough, an attorney defending Texas’ law, on a Broadband Breakfast panel webcast Wednesday. TechFreedom Free Speech Counsel Ari Cohn believes Kagan voted no because she doesn’t like the shadow docket, he said: “Her vote wasn’t dispositive.”

Once the 5th Circuit issues an opinion, the case could go back to the Supreme Court or return to the district court for a full trial, said McCollough. “Frankly, I don't think the platforms are going to enjoy what happens when we go to trial,” where Texas can get discovery including “documents on how they form their policies and practices," and the “real intent behind them.” Discovery could reveal if platforms worked with government to squelch certain viewpoints, said Parler Chief Policy Officer Amy Peikoff on the same panel.

“Despite Texas’s best efforts to run roughshod over the First Amendment, it came up short in the Supreme Court,” NetChoice’s counsel Chris Marchese said. The state law “will once again be enjoined and the case will proceed in the lower courts.” CCIA also praised the decision. Republican Attorneys General Ken Paxton of Texas and Ashley Moody of Florida didn’t comment.