Texas Says Its Unconstitutional Content Moderation Law Should Still Go Into Effect While We Wait For Appeal; Judge: 'No, That's Not How This Works'
from the good-judge dept
Last week, the district court Judge Robert Pitman wrote an excellent ruling tossing out Texas’ silly content moderation law as clearly unconstitutional under the 1st Amendment. As was widely expected, Texas has appealed the ruling to the 5th Circuit (undeniably, the wackiest of the Circuits, so who knows what may happen). However, in the meantime, Texas Attorney General Ken Paxton also asked the lower court to have the law go into effect while waiting for the appeals court to rule!
A stay is also supported by the widely recognized principle that enjoining a state law inflicts
irreparable harm on the state, and that the publicâ€™s interest is aligned with the stateâ€™s interest and
harm. Plaintiffs, in contrast, will not be irreparably harmed if a stay is granted. This is evidenced
by the fact that (1) their supportive members stated they either already comply with aspects of the
law or could not explain how the law would be burdensome in practice; and (2) Plaintiffsâ€™ other
members, filing as amici in opposition to the Preliminary Injunction, have demonstrated no harm
will occur by enforcement of H.B. 20. For all these reasons, as further set forth below, a temporary
stay while the Fifth Circuit considers the merits of this Courtâ€™s Preliminary Injunction is
It is really incredible:
The Attorney General has also raised questions never
considered by the Fifth Circuit or the Supreme Court as to common carriage and the First
Amendment. Correspondingly, the Attorney General has demonstrated a likelihood of success on
the merits regarding Plaintiffsâ€™ claims. While this Court may have rejected the Attorney Generalâ€™s arguments, it did so by relying on readily distinguishable First Amendment case law and giving
dispositive weight to a novel â€œfactâ€: whether the entity â€œscreen[s] and sometimes moderate[s] or
curate[s]â€ user generated content.
Therefore, given the novel nature of Plaintiffsâ€™ claims and the substantial support for the
Attorney Generalâ€™s arguments, the Court of Appeals should have an opportunity to consider these
issues before the injunction is implemented.
Basically, “even though we lost easily, we really made the better arguments, so therefore you should let the law go into effect.” It’s nonsense.
Remember, the key reason that the judge blocked the law from going into effect was because it so obviously violates the 1st Amendment, so letting the law go into effect fundamentally would violate 1st Amendment rights. Texas’ argument here that blocking the law from going into effect “inflicts irreparable harm on the state” is positively bizarre. “If we can’t violate the 1st Amendment rights of websites, then we’re irreparably harmed” is a dumb argument. The plaintiffs in the case, NetChoice and CCIA fired back with the proper “LOL, wut?” opposition brief, though most of that focused on Paxton wanting the other parts of the case to continue to move forward in the district court while the appeal is happening (and basically to get into the intrusive discovery process).
The judge wasted little time in rejecting Paxton’s nonsense:
The State largely rehashes the same arguments this Court rejected in its Order. The Stateâ€™s
new argumentâ€”that the preliminary injunction is overbroadâ€”also asserts, again, that HB 20 is not
unconstitutional. (Id. at 13). However, the Court already found that Plaintiffs are likely to establish
that Sections 2 and 7 of HB 20 are unconstitutional and, as a result, fashioned a narrow, preliminary
injunction. The Court is also not persuaded by the Stateâ€™s contention that preliminarily enjoining the
enforcement of Section 2â€”which contains disclosure requirementsâ€”was too broad a remedy
because one of Plaintiffsâ€™ members happens to already satisfy â€œseveralâ€ disclosure requirements. (Id.
at 13). Whether one of Plaintiffsâ€™ members makes a business decision to publish certain disclosures,
even if a few of those disclosures align with Section 2â€™s requirements, does not impact this Courtâ€™s
decision that the State cannot constitutionally enforce Section 2â€™s many requirements imposed on
social media platforms. Accordingly, the Court declines to stay its Order.
It also sides with NetChoice in staying the other parts of the case until after the appeal.
To preserve court resources and for judicial efficiency, whatever the posture of this case
when it returns to this Court, the Court will exercise its discretion to stay this case and preserve its
In other words, no, Paxton, you’re not likely to succeed, and if you do, we can take up the issue then…