US Supreme Court Puts a Hold on the Texas Moderation Ban Law for Now

Large platforms will be permitted to moderate content for now. The US Supreme Court has declined to intervene for now.

The Texas moderation ban bill, known otherwise as HB20, has been put on hold. Previously, the 5th circuit overturned a lower court decision and reinstated the law. The ruling was made with no explanation. Since then, an emergency application was submitted to the Supreme Court for an emergency review of the law. In response, the US Supreme court has blocked the enforcement of the law for now. From Techdirt:

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.

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.

Put it another way, by a narrow margin, large platforms like Twitter will be permitted to moderate content for now. Had one justice gone the other way, we could already be looking forward to hearings in the very near future at the highest court of the land already. We were that close to the final legal steps of this court case already. Obviously, the fight over whether it’s legal to moderate content or not is far from over. At this point, the final outcome is just a little further away for now. The decision today has digital rights advocates breathing a sigh of relief because moderation is permitted to continue happening.

Drew Wilson on Twitter: @icecube85 and Facebook.

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