CDT, EFF + Other Orgs Lead Supreme Court Brief Urging High Court to Stop Texas Social Media Law
SUMMARY OF THE ARGUMENT
The Fifth Circuit’s stay of the district court’s preliminary injunction enjoining Texas House Bill 20 (“HB20” or the “Act”) should be vacated because the public interest lies in maintaining the injunction and Applicants, not the Respondent, are likely to succeed on the merits.
The stay harms the public interest by upending the longstanding status quo of content moderation by social media platforms, which is fundamental to free speech online and has largely been to the public’s benefit. Internet users benefit from the availability of social media services that engage in a range of content moderation approaches, from those that significantly moderate content to those that take a more hands-off approach. Users also benefit from platforms’ ability to bar, for example, content promoting suicide and self-harm, hate speech, content praising terrorism, content promoting animal abuse, and inappropriate content aimed at children. Barring such content can be construed as viewpoint-based and thus prohibited by HB20.
Permitting the stay to stand, with HB20 going into immediate effect, will harm the public interest in at least three ways, each of which weighs strongly against the stay: First, platforms will have to end or alter their content moderation practices that can be construed as viewpoint-based. Second, the risk of litigation will discourage some platforms from engaging in any content moderation, even under policies they believe are viewpoint-neutral, leaving users to wade through large amounts of unwanted content. Third, other platforms may instead remove even more user speech in an effort to appear more consistent in the enforcement of their content policies, with the result that users will have less freedom of expression, particularly on controversial subjects. Established law also supports the status quo. Every court that has considered the issue has found that social media platforms have a First Amendment right to edit and curate the content they publish on their sites. This Court’s precedent in an analogous context, Miami Herald Co. v. Tornillo, remains controlling here.
