And Now The Copia Institute Tells The US Supreme Court There’s A Big Problem With Texas’s Social Media Law
Last week a bizarre one-line order from the Fifth Circuit lifted the injunction on Texas's social media law, allowing it to go into effect, despite all the massive problems with it - including the extent to which it violates the First Amendment and Section 230.
So NetChoice and CCIA filed an emergency application with the U.S. Supreme Court to try to have it at least reinstate the injunction while the case worked its way through the appellate courts. And yesterday Copia Institute filed an amicus brief supporting their application.
The brief is, in many ways, an encore performance of the brief we'd submitted to the Fifth Circuit, using ourselves and Techdirt as an example of how the terms of HB20 violates our constitutional and statutory rights, but this time around there are a few additional arguments that may be worth their own posts (in fact, one is a throwback to an old post). Also, one key argument that we added applies less to the problems with HB20 itself and more to the problems involved with the Fifth Circuit lifting the injunction, and especially in the way that it did. We pointed out that lifting the injunction, and without any explanation for why, looked an awful lot like the sort of prior restraint that had long been considered verboten under the First Amendment. State actors (including courts) are not supposed to chill the exercise of expression unless and until there's been the adjudication needed to find that the First Amendment permits that sanction. Here the Fifth Circuit technically heard the case, but it issued a sanction stymying the exercise of speech (lifting the injunction) without ever actually having ruled that HB20's chilling terms were actually ok under the First Amendment. Perhaps the court truly think's HB20 is perfectly sound under the First Amendment, we don't really know. And we can't know, because they didn't say anything. Which also means there's nothing to appeal, because if the Fifth Circuit made an error in thinking HB20 is ok (which seems likely, because that law conflicts with so much established First Amendment precedent, as well as common sense) no one can say where that error was, or what of its judgment should be reversed.
Nevertheless, the law is out there, in effect now, doing harm to platforms' expression. HB20 still needs to be thrown out on the merits, but for the moment we just all need the Supreme Court to get the bleeding to stop.