SCOTUS: Even Kav And Barrett Weren't Having It With Texas's Ridiculous Social Media Law

In a 5-4 order released yesterday, the Supreme Court reinstated a trial court decision blocking Texas's idiotic social media law. So, hooray, it is Nice Times at the Supreme Court for once! Well, sort of Nice Times, since the Fifth Circuit could reinstate the ban for black robe funsies and put us back at square one any time. This country is kinda fucked up, not gonna lie.

As with so many of the problems facing us today, this law was passed because conservatives believe a whole lot of stupid shit. In this case, they've convinced themselves that they're being censored on all the major social media platforms. Sure Ben Shapiro and Dan Bongino are in the top 10 Facebook posts every bloody day, but, you know SHADOW BANS and whatnot.

"There is a dangerous movement by social media companies to silence conservative viewpoints and ideas. That is wrong, and we will not allow it in Texas," Gov. Greg Abbott said when he signed the bill, which forbids sites with more than 50 million monthly users from censoring user content based on "view point." And if you are thinking, "Hey, that sounds like a 'Leave No Nazi Behind' law!" then congratulations on your familiarity with this here World Wide Web. You are apparently more digitally literate than a third of the Supreme Court.

The bill is problematic on many levels, not least that it would require sites like Disney+ to allow pro-pedophile comments and Cinderella porn fanfic to remain up or risk being sued by users or the Texas AG. From a First Amendment standpoint, it's facially illegal: It is axiomatic that the government can no more compel speech than it can forbid it. In short, the law is wildly unconstitutional, as US District Judge David Pitman ruled last November in a carefully reasoned opinion granting an injunction requested by a consortium of tech companies.

Florida passed a similarly ridiculous law, which was enjoined by a trial judge in June of 2021 and remains so thanks to an Eleventh Circuit decision last week. But the Fifth Circuit is different — and by different, we mean batshit fucking crazy. So the Fifth Circuit reinstated the law in a one-paragraph order, supplying exactly zero reasoning.

Which brings us to yesterday, when a bizarre lineup of justices granted an emergency motion to vacate the Fifth Circuit's order: Justices Roberts, Breyer, Sotomayor, Kavanaugh, and Barrett. Voting to let the law go into effect: Justices Alito, Thomas, Gorsuch, and ... Kagan???

Let's for the moment put aside Kagan's vote as reflecting her position on shadow docket rulings or some other procedural issue — it seems inconceivable that she would let such a blatant assault on the First Amendment stand. And she certainly didn't join the nutbag dissent penned by Alito and signed onto by Thomas and Gorsuch.

The same justices who insisted that it was a gross abridgment of the First Amendment to require crisis pregnancy centers to post accurate information about state-sponsored abortion care now insist that it's an open question whether Twitter, a private company, can be blocked from censoring Nazis.

"The law before us is novel, as are applicants’ business models. Applicants claim that §7 of HB20 interferes with their exercise of 'editorial discretion,' and they maintain that this interference violates their right 'not to disseminate speech generated by others,'" Alito writes.

The scare quotes are a nice touch. As is the pretense that a private company becomes a "common carrier" and loses its First Amendment rights — not to mention the right to run its business as it sees fit — when it crosses some magical 50 million user threshold. And a truly bizarre footnote that regurgitates a rightwing talking point about a supposed platform/publisher distinction under Section 230 of the Communications Decency Act shows just how deeply these judges have been marinating in Fox News for the past 20 years. Frankly, we'd expect better from Neil Gorsuch, who is only 54 and should have a more sophisticated understanding of the internet than his septuagenarian colleagues. But apparently he, too, thinks that private businesses become public utilities if they are mean to conservatives — or at least he's morally flexible enough to pretend so when it suits his broader goals.

On the bright side, Justices Barrett and Kavanaugh may be evil, but they're not completely crazy. So, let's take this win where we can get it — it's not like they come along all that often.

[Netchoice v. Paxton, SCOTUS docket]

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Liz Dye

Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.


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