Supreme Court Makes The Right Call: Puts Texas Social Media Law Back On Hold
Exhale.
Just a little while ago, the Supreme Court put Texas’s ridiculous content moderation law back on hold. Specifically, it granted NetChoice and CCIA’s emergency application to put the law on hold, following the 5th Circuit’s decision to reinstate the law without any explanation (which came about in response to a district court’s lengthy explanation for why the law was unconstitutional.)
The Supreme Court’s ruling here… is a little strange. It was a 5-4 decision, but probably not the lineup you might expect. The ruling to grant the stay (i.e., to block the law from being enforced) was supported by Chief Justice Roberts, along with Justices Barrett, Breyer, Kavanaugh, and Sotomayor. That leaves the four who wished to have the law still in place as Justices Alito, Thomas, Gorsuch, and… Kagan?!
Unfortunately there’s little in the way of details here, as there is no explanation for the majority decision to put the law on hold. Kagan only notes that she would deny the application. Many are speculating that her reasoning was based on her distaste for the so-called “Shadow Docket” of emergency applications where this all played out. Though, as shadow docket expert Steve Vladeck notes, even though Kagan has been vocal about disapproving of the use of the shadow docket, that hasn’t prevented her from granting relief via it in the past.
And while there is no majority opinion to explain the thinking, Alito did write a dissent that, as perhaps could be expected, is just full of nonsense. Thomas signed onto it, along with Gorsuch. That Alito and Thomas would align on this isn’t that surprising, given what they’ve said in the past (though one would hope with slightly more briefing in front of them they might have realized their positions are fundamentally mistaken — but no such luck). Gorsuch is kind of surprising, as on similar issues he’s seemed more open to reason.
It’s good to see Kavanaugh stay consistent here, as his ruling in the Halleck case was an important precedent, and it would be bizarre to see him flip so quickly.
As for the dissent, authored by Alito, well, it’s a mess. We don’t need to do a full analysis on it, because it doesn’t really matter yet. But Alito seems extremely confused about a few important concepts and it will be important to carefully brief those concepts in more detail when this issue, inevitably, returns to the Supreme Court docket along more traditional lines. Also, it’s quite incredible for him and his two co-signers to suggest that you can simply take away 1st Amendment rights and only come back and determine if that was okay at a later date.
It is also… not entirely clear to me what happens next. In theory, the 5th Circuit is still expected to release its more complete opinion turning the law back on. But… now that doesn’t matter because the Supreme Court has already blocked that? Or, could that turn the law back on again? It’s all a bit unclear, but at least in the very, very short term, by an uncomfortably narrow margin, Texas’ dangerously bad content moderation law is not in effect.