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'

Legal Issues

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 public?s interest is aligned with the state?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) Plaintiffs? 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 Court?s Preliminary Injunction is warranted.

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 Plaintiffs? claims. While this Court may have rejected the Attorney General?s arguments, it did so by relying on readily distinguishable First Amendment case law and giving dispositive weight to a novel ?fact?: whether the entity ?screen[s] and sometimes moderate[s] or curate[s]? user generated content.

Therefore, given the novel nature of Plaintiffs? claims and the substantial support for the Attorney General?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 State?s new argument?that the preliminary injunction is overbroad?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 State?s contention that preliminarily enjoining the enforcement of Section 2?which contains disclosure requirements?was too broad a remedy because one of Plaintiffs? members happens to already satisfy ?several? disclosure requirements. (Id. at 13). Whether one of Plaintiffs? members makes a business decision to publish certain disclosures, even if a few of those disclosures align with Section 2?s requirements, does not impact this Court?s decision that the State cannot constitutionally enforce Section 2?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 current posture

In other words, no, Paxton, you’re not likely to succeed, and if you do, we can take up the issue then…

Filed Under: 1st amendment, appeals, content moderation, robert pitman, texas
Companies: ccia, netchoice