Saturday’s horrific shooting at a Buffalo supermarket, which killed 10 local residents and injured three more, was briefly livestreamed on Twitch by a suspect apparently motivated by an anti-Black, white supremacist theory. Not surprisingly, Twitch took the stream down within two minutes, and it and other social media platforms have pulled down countless follow-on posts linking to various recordings or rebroadcasts of the video.
Social media platforms should have the ability to suppress the spread of violent or otherwise offensive content.
That’s a good thing; social media platforms should have the ability to suppress the spread of violent or otherwise offensive content — rather than have to allow any user to post any content at any time. Otherwise, imagine if it was impossible to open Facebook, Twitter or YouTube without being bombarded with speeches by Hitler; animal cruelty videos; or hard-core pornography. But if any of those posts originated in Texas, trying to shut them down may well have violated a stunning new Texas law — known as HB20 — that seeks to limit when large social media sites can moderate any of their users’ content.
That law was blocked by a federal judge in Austin, who ruled that it violated the First Amendment. But last week, a divided three-judge panel of the 5th U.S. Circuit Court of Appeals, currently hearing a challenge to that ruling, issued an unsigned, unexplained order that put HB20 into immediate effect. The plaintiffs challenging the Texas law have sought emergency relief from the Supreme Court. And the video from Saturday’s shooting is just one of countless examples of why the justices should agree to do so — and quickly.
HB20 was enacted by the Texas Legislature and signed into law by Gov. Greg Abbott last September in response to (debatable) claims that large social media platforms were routinely discriminating against — and “censoring” — conservative political viewpoints. One high-profile example cited by supporters of the law was when former President Donald Trump was permanently banned from Twitter and suspended from Facebook for his comments during and after the Jan. 6, 2021, attack on the Capitol.
To that end, the bill makes it unlawful for companies to “censor” a user based upon the specific content of their posts, even if that content is clearly objectionable. Although the bill has an exception for content that directly incites criminal activity or includes specific threats of violence against individuals or groups based upon various characteristics, it has no exception for content concerning crimes already committed, such as the Buffalo shooter’s livestream.
Just before HB20 was set to go into effect last December, Austin-based Judge Robert Pitman issued an injunction barring Texas Attorney General Ken Paxton from enforcing it. In a 30-page opinion, Pitman held that social media platforms have a First Amendment right to moderate content disseminated on their platforms, and that HB20 was likely a violation of that right insofar as it could compel platforms to disseminate objectionable content. Pitman also explained, in detail, why allowing HB20 to go into effect would cause irreparable harm. As he concluded, “HB20 prohibits virtually all content moderation, the very tool that social medial platforms employ to make their platforms safe, useful, and enjoyable for users.”
Texas appealed Pitman’s ruling to the 5th Circuit, which held oral argument last Monday. Two days later, the Court of Appeals issued its unsigned, unexplained order staying Pitman’s injunction and putting HB20 into effect — noting, without any further explanation, that “the panel is not unanimous.” By Friday, the plaintiffs had asked the Supreme Court to vacate the 5th Circuit’s stay and put HB20 back on hold while Texas’s appeal works its way through the courts.
In recent years, the Supreme Court’s consideration of emergency applications, part of its larger “shadow docket,” has received increase public attention — and criticism. As I’ve written, over the past five years, the justices have handed down a growing number of unsigned, unexplained orders that have had enormous real-world impacts — from blocking California Covid restrictions to not blocking Texas’ six-week abortion ban; from blocking the Biden administration’s vaccination-or-testing requirement for large employers to putting back into effect Alabama’s new congressional district maps after two lower courts said they violated the Voting Rights Act. Reasonable people can, and surely will, disagree on the merits of these decisions. But critics like me have argued that the conservative majority is increasingly taking procedural shortcuts to reach those decisions — shortcuts that it seldom deigns to defend.
In early April, for instance, the Justices, by a 5-4 vote, put back into effect a Trump-era rule concerning the Clean Water Act that had been enjoined by a federal district court. There was no majority opinion, which meant there was no explanation for how the district court’s ruling was causing the kind of “irreparable” harm that’s a necessary prerequisite for such relief. In a dissenting opinion that was joined not only by Justices Stephen Breyer and Sonia Sotomayor, but also by Chief Justice John Roberts, Justice Elena Kagan complained that the majority was once again abusing the shadow docket, for when the court grants emergency relief without accounting for which side will suffer more harm in the interim, “[t]hat renders the Court’s emergency docket not for emergencies at all.”
The 5th Circuit’s unsigned, unexplained order in the HB20 case is guilty of the same sins.
The 5th Circuit’s unsigned, unexplained order in the HB20 case is guilty of the same sins — providing no explanation for emergency relief in a context in which the emergency certainly seems to be caused by HB20 itself, not by the injunction blocking it. (This was something both the district court and amicus briefs filed by media groups and others in the 5th Circuit have made clear.) If it’s problematic for the Supreme Court to change the status quo through such rulings, it’s no less so when intermediate appeals courts do so as well.
There’s a growing bipartisan consensus not only that laws like HB20 would be a practical disaster for social media platforms, but that allowing them to persist would require a radical — and pernicious — shift in the Supreme Court’s First Amendment jurisprudence. But even for those who support such a shift, the Supreme Court should still put HB20 back on hold, at least for now.
Under current law, the district court is clearly correct that HB20 violates the First Amendment — and the harm caused by allowing it to go into effect even for a few months could be catastrophic. But even if the Supreme Court is inclined to revisit its First Amendment jurisprudence as applied to social media platforms, as Justice Clarence Thomas has suggested it should, that’s just one of the considerations before the court at this juncture. If the justices still take the other considerations besides the merits seriously in considering whether to grant emergency relief, as they should, then they should say so here — and freeze HB20 in the process.