After a controversial new social media law went into effect Wednesday in Texas, the Supreme Court began weighing Big Tech’s emergency request to put it on hold as the tech industry fights the legislation.
Texas statute HB 20 requires large platforms like Twitter (TWTR), Meta’s Facebook and Instagram (FB), TikTok, and YouTube (GOOG, GOOGL) to publish all user posts that express a “viewpoint.” Their industry lobbyists are challenging the statute on First Amendment and other grounds, and for now, they’re asking the high court to block the law.
Social media companies will have to comply with the law right away unless the high court intervenes. On Friday, NetChoice and Computer and Communications Industry Association, which represent dozens of social media companies, apps, and other tech companies, including Yahoo, asked the court to vacate a 5th Circuit Court of Appeals decision that reinstated the law after a lower court ruled in a separate injunction request that it was unconstitutional.
The law, the first of its kind in the U.S., applies to sites with at least 50 million users and was pushed by Republican lawmakers who contend that platforms like Facebook and Twitter muzzle conservative voices. That’s a sentiment echoed by Tesla CEO Elon Musk, who recently made a bid to buy Twitter and vowed to reverse the company’s account ban against former President Donald Trump, who was ousted from the platform.
Some experts argue that if the Texas law remains, large social media companies would effectively have to allow all posted user viewpoints across the U.S. since the internet crosses state lines.
“My office just secured another BIG WIN against BIG TECH,” Texas Attorney General Ken Paxton tweeted after last week’s ruling.
A longshot request
Legal experts say the high court could respond to Big Tech’s request in a number of ways, though it’s under no obligation to take up the matter, given that its merits — underlying legal issues in the case — have yet to be decided in lower courts.
“They could deny the stay. They could sit on this application. They could grant the stay, or grant the stay in part. Or they could even take up the case and hear it on the merits,” William Jay, an attorney with Goodwin Procter, tells Yahoo Finance.
It would be unusual for the high court to grant the tech companies’ emergency request because that would fall under the court’s so-called shadow docket — meaning the justices would make a decision without allowing both sides to file briefs and make arguments.
“Even though there’s been an increase in [use of the docket] the last few years, it is still relatively unusual for the Supreme Court to stay or vacate a stay of a lower court decision,” University of Notre Dame law professor Samuel Bray explains.
Still, Jay suspects that Justice Samuel Alito, who is responsible for handling emergency applications from the 5th Circuit, will ask the full court to vote on the stay.
“Most significant applications do get referred to the full court. I expect the same thing will happen here,” Jay said. Alito also has authority to decide the matter on his own, he explains.
Bray agrees that it’s typical for the court to take on emergency applications in important, close, and controversial cases, and that it’s unlikely for Alito to issue a stay without referring to the full court. However, he sees a possibility that Alito will deny the stay, unilaterally.
“He’s either going to deny the request to vacate the stay because he doesn’t think there are good grounds for it, and he doesn’t think that his colleagues would want to grant the request, or he will refer it to the full court,” Bray said.
In a statement shared with Yahoo Finance and posted to the company’s website, NetChoice said, “We are hopeful the Supreme Court will quickly reverse the Fifth Circuit, and we remain confident that the law will ultimately be struck down as unconstitutional.”
Computer and Communications Industry Association said, “Texas politicians have put political point-scoring above the interests of internet users. It would be dangerous to allow this social media law to infringe upon Constitutional protections for even a day. That is why we are asking the Supreme Court to take emergency action.”
Twitter declined comment on whether the company is taking steps to comply with the Texas law and Meta’s Facebook and Instagram didn’t respond to Yahoo Finance’s requests for comment.
Texas has until Wednesday to file a response to the tech companies’ injunction request.
Alexis Keenan is a legal reporter for Yahoo Finance. Follow Alexis on Twitter @alexiskweed.
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