Big tech is fighting a new Texas law targeting social media — here’s what happens next

After a controversial new social media law took effect on Wednesday in Texas, the Supreme Court began weighing Big Tech’s emergency request to suspend it as the tech industry fights the legislation.

Texas law HB 20 requires major platforms like Meta’s Twitter (TWTR), Facebook and Instagram (FB), TikTok and YouTube (GOOG, GOOGL) to post all user posts that express a “point of view”. Their industry lobbyists are challenging the law on the First Amendment and other grounds, and for now they are asking the high court to block the law.

Social media companies will have to comply with the law immediately unless the High Court intervenes. On Friday, NetChoice and the Computer and Communications Industry Association, which represent dozens of social media, app and other tech companies, including Yahoo, asked the court to overturn a Court of Appeals ruling. of the 5th Circuit which restored the law after a lower court ruled in a separate injunction petition that it was unconstitutional.

The law, the first of its kind in the United States, applies to sites with at least 50 million users and was pushed by Republican lawmakers who argue that platforms like Facebook and Twitter muzzle conservative voices. It’s a sentiment shared by Tesla CEO Elon Musk, who recently made an offer to buy Twitter and pledged to reverse the company’s account ban on former President Donald Trump, who been kicked off the platform.

Some experts say that if the Texas law remains, major social media companies would have to effectively allow all user views posted in the United States because the internet crosses state lines.

“My office just got another BIG WIN against BIG TECH,” Texas Attorney General Ken Paxton tweeted after last week’s decision.

A long-term request

Legal experts say the High Court could respond to Big Tech’s claim in a number of ways, although it is not bound to take up the case given its merits – the underlying legal issues to the case – has yet to be decided by the lower courts.

“They could refuse the stay. They could sit on this application. They could grant the stay, or grant the stay in part. Or they could even take the case over and hear it on the merits,” William Jay, a lawyer at Goodwin Procter, told Yahoo Finance.

WASHINGTON, DC – APRIL 10: Sen. Ted Cruz (R-TX) speaks about a graphic related to free speech during a Senate Judiciary Committee hearing on April 10, 2019 in Washington, DC. The Republican-controlled Senate Judiciary Committee questions whether big tech companies are biased toward conservatives. (Photo by Alex Wroblewski/Getty Images)

It would be unusual for the High Court to grant the tech companies’ emergency request, as it would fall under the court’s so-called shadow case – meaning the judges would make a decision without allowing both sides to file pleadings and present arguments.

“Even though there has been an increase [use of the docket] in recent years, it is still relatively unusual for the Supreme Court to stay or overturn a stay of a lower court decision,” says Samuel Bray, a law professor at the University of Notre Dame.

Still, Jay suspects that Judge Samuel Alito, who is responsible for handling 5th Circuit emergency applications, will ask the full court to vote on the stay.

“Most large claims are referred to the full court. I expect the same to happen here,” Jay said. Alito also has the power to decide the matter on his own, he explains.

Bray agrees that it’s common for the court to accept emergency requests in large, closed and controversial cases, and that Alito is unlikely to grant a stay without referring to the full court. However, he sees a possibility that Alito will refuse the reprieve, unilaterally.

“He’s either going to deny the request to cancel the stay because he doesn’t think there are good reasons for it, and he doesn’t think his colleagues will want to grant the request, or he’ll send it back to the whole court,” Bray said.

In a statement shared with Yahoo Finance and posted on the company’s website, NetChoice said, “We hope the Supreme Court quickly overturns the Fifth Circuit, and we remain confident that the law will ultimately be struck down as unconstitutional.”

The Computer and Communications Industry Association said, “Politicians in Texas have placed political scoring above the interests of internet users. It would be dangerous to allow this social media law to violate constitutional protections for even one day. That is why we are asking the Supreme Court to take urgent action.

Twitter declined to comment on whether the company was taking steps to comply with Texas law, and Meta’s Facebook and Instagram did not respond to requests for comment from Yahoo Finance.

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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