Today, just two days after hearing oral argument, and without issuing an opinion, the Fifth Circuit stayed a district court order blocking enforcement of HB 20, Texas’s social media speech regulation.
“This is a startlingly radical move,” said Corbin K. Barthold, TechFreedom Internet Policy Counsel. “Especially when considered alongside some of the judges’ comments at argument, it seems driven, at least in part, by spite toward what one of HB 20’s own supporters called the ‘West Coast oligarchs’ who run social media companies.”
“This stay introduces unnecessary confusion—indeed, chaos might be the word,” warned Barthold. “Social media companies now face the prospect of liability for making distinctions based on ‘viewpoint.’ (For instance, treating pro-ISIS content differently than anti-ISIS content.) But there are many other difficulties to applying this law. No one—not lawyers, not judges, not experts in the field, not even the law’s own sponsors—knows what compliance with this law looks like. If HB 20 is left to stand, though, this much is clear: it would end with the Internet fragmenting into a patchwork of different state-by-state experiences.”
Barthold is available for comment about the consequences of the ruling, what is likely to happen next in the litigation, how social media companies are likely to react, and more.
TechFreedom’s amicus brief was the only one discussed at oral argument. Other related work includes:
- Social Media and Common Carriage: Lessons From the Litigation Over Florida’s SB 7072, WLF Legal Backgrounder (Sept. 24, 2021)
- Justice Thomas’s Misguided Concurrence on Platform Regulation, Lawfare (Apr. 14, 2021)
- No, Florida Can’t Regulate Online Speech, Lawfare (Mar. 12, 2021)
- The Wall Street Journal Misreads Section 230 and the First Amendment, Lawfare (Feb. 3, 2021)