NetChoice, LLC v. Paxton

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1 Cite as: 596 U. S. ____ (2022)
A
LITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
No. 21A720
NETCHOICE, LLC, DBA NETCHOICE, ET AL. v. KEN
PAXTON, ATTORNEY GENERAL OF TEXAS
ON APPLICATION TO VACATE STAY
[May 31, 2022]
The application to vacate stay presented to JUSTICE
ALITO and by him referred to the Court is granted. The May
11, 2022 order of the United States Court of Appeals for the
Fifth Circuit staying the district court’s preliminary injunc-
tion is vacated.
J
USTICE KAGAN would deny the application to vacate
stay.
J
USTICE ALITO, with whom JUSTICE THOMAS and
J
USTICE GORSUCH join, dissenting from grant of application
to vacate stay.
This application concerns issues of great importance that
will plainly merit this Court’s review. Social media plat-
forms have transformed the way people communicate with
each other and obtain news.
1
At issue is a ground-breaking
Texas law that addresses the power of dominant social me-
dia corporations to shape public discussion of the important
issues of the day.
The law in question, HB20, regulates “social media plat-
form[s]” that are “open to the public;” that “enabl[e] users
to communicate with other users for the primary purpose of
posting information, comments, messages, or images;” and
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1
See, e.g., E. Shearer, Pew Research Center, More Than Eight-in-Ten
Americans Get News From Digital Devices (Jan. 12, 2021), https://www.
pewresearch.org/ fact-tank/2021/01/12/more-than-eight-in-ten-americans-
get-news-from-digital-devices.

2 NETCHOICE, LLC v. PAXTON
A
LITO, J., dissenting
that have at least “50 million active users in the United
States in a calendar month.” App. to Application 39a–41a
(App.). Section 7 of HB20 prohibits these platforms from
“censor[ing]” users based on viewpoint, and §2 requires cov-
ered platforms to disclose certain information about their
business practices, including an “acceptable use policy” and
“a biannual transparency report.” Id., at 39a–46a, 48a–
52a. These platforms must also establish procedures by
which users can appeal a platform’s decision to “remove
content posted by the user.” Id., at 44a.
Applicants are two trade associations that represent ma-
jor social media platforms covered by the statute. They
challenged the constitutionality of HB20 in the United
States District Court for the Western District of Texas, con-
tending, among other things, that the law is facially uncon-
stitutional under the First Amendment. The court agreed,
and it preliminarily enjoined the Texas attorney general
from enforcing the statute. The United States Court of Ap-
peals for the Fifth Circuit—after full briefing and oral ar-
gument—stayed that preliminary injunction. Applicants
now ask this Court to vacate that stay while the Fifth Cir-
cuit resolves the appeal of the underlying preliminary in-
junction, and the Court grants that extraordinary relief.
I cannot agree with the Court’s disposition. To be entitled
to vacatur of the stay, applicants must show, among other
things, a “substantial likelihood of success on the merits.”
Alabama Assn. of Realtors v. Department of Health and Hu-
man Servs., 594 U. S. ___, ___ (2021) (per curiam) (slip op.,
at 5). Members of this Court have argued that a determi-
nation regarding an applicant’s likelihood of success must
be made under “existing law,” Merrill v. Milligan, 595 U. S.
___, ___ (2022) (R
OBERTS, C. J., dissenting) (slip op., at 1);
Wisconsin Legislature v. Wisconsin Elections Commission,
595 U. S. ___, ___ (2022) (S
OTOMAYOR, J., dissenting) (slip
op., at 1) (“existing precedent”). And whether applicants
are likely to succeed under existing law is quite unclear.

3 Cite as: 596 U. S. ____ (2022)
A
LITO, J., dissenting
The law before us is novel, as are applicants’ business
models. Applicants claim that §7 of HB20 interferes with
their exercise of “editorial discretion,” and they maintain
that this interference violates their right “not to dissemi-
nate speech generated by others.” Application 19. Under
some circumstances, we have recognized the right of organ-
izations to refuse to host the speech of others. See Hurley
v. Irish-American Gay, Lesbian and Bisexual Group of Bos-
ton, Inc., 515 U. S. 557 (1995) (parade organizer); Miami
Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974)
(newspaper). But we have rejected such claims in other cir-
cumstances. For example, in PruneYard Shopping Center
v. Robins, 447 U. S. 74 (1980), we rejected the argument
that the owner of a shopping mall had “a First Amendment
right not to be forced by the State to use his property as a
forum for the speech of others.” Id., at 85. And in Turner
Broadcasting System, Inc. v. FCC, 512 U. S. 622 (1994), we
declined to apply strict scrutiny to rules that “interfere[d]
with cable operators’ editorial discretion by compelling
them to offer carriage to a certain minimum number of
broadcast stations.” Id., at 643–644; see generally E. Vo-
lokh, Treating Social Media Platforms Like Common Carri-
ers? 1 J. Free Speech Law 377 (2021).
It is not at all obvious how our existing precedents, which
predate the age of the internet, should apply to large social
media companies, but Texas argues that its law is permis-
sible under our case law. First, Texas contends that §7 does
not require social media platforms to host any particular
message but only to refrain from discrimination against a
user’s speech on the basis of “viewpoint,” App. 49a, and in
this respect the statute may be a permissible attempt to
prevent “repression of [the freedom of speech] by private in-
terests,” Associated Press v. United States, 326 U. S. 1, 20
(1945). Second, Texas argues that HB20 applies only to
platforms that hold themselves out as “open to the public,”

4 NETCHOICE, LLC v. PAXTON
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LITO, J., dissenting
App. 40a, and as neutral forums for the speech of others.
2
These representations suggest that the covered social me-
dia platforms—like the cable operators in Turner—do not
generally “‘convey ideas or messages [that they have] en-
dorsed.’” Hurley, 515 U. S., at 576. Third, since HB20 is
limited to companies with “50 million active users in the
United States,” App. 41a, Texas argues that the law applies
to only those entities that possess some measure of common
carrier-like market power and that this power gives them
an “opportunity to shut out [disfavored] speakers.” 515
U. S., at 577; see also Biden v. Knight First Amendment In-
stitute at Columbia Univ., 593 U. S. ___, ___–___ (2021)
(T
HOMAS, J., concurring) (slip op., at 6–7).
If anything, Texas submits, its arguments regarding the
constitutionality of §2’s disclosure requirements are even
stronger. The State notes that we have upheld laws requir-
ing that businesses disclose “purely factual and uncontro-
versial information about the terms under which [their] ser-
vices will be available,” so long as those requirements are
not “unjustified or unduly burdensome.” Zauderer v. Office
of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S.
626, 651 (1985). If we were to agree with the applicants’
——————
2
Texas also suggests that applicants’ position in this litigation is in
conflict or tension with the positions of its members in cases regarding
the interpretation of §230 of the Communications Decency Act of 1996,
47 U. S. C. §230. That statute directs, among other things, that “[n]o
provider . . . of an interactive computer service shall be treated as the
publisher or speaker of any information provided by another information
content provider.” §230(c)(1). Texas claims that “[w]hen the platforms
resort to section 230’s protections . . . they are relying on Congress’s de-
terminations that they are not the ‘publisher’ of their users’ content, 47
U. S. C. §230(c)(1), and that they are not ‘responsible’ for that content in
any respect, id. §230(f )(3).” Response 36. And Texas suggests that,
given that many of applicants’ members have emphasized their “ ‘neu-
tral[ity]’ ” and their function as “ ‘conduits’ ” for the speech of their users
(see id., at 37–38, and nn. 11–18), the Court should view their assertions
of a First Amendment right to engage in “ ‘editorial discretion’ ” with
some skepticism.

5 Cite as: 596 U. S. ____ (2022)
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LITO, J., dissenting
arguments, the decision could have widespread implica-
tions with regard to other disclosures required by federal
and state law.
The procedural posture of this case also counsels against
vacatur of the stay. Applicants sought pre-enforcement re-
view of the statute in federal court, so it is not clear how
state courts would interpret this statute if it were applied
to applicants’ businesses; nor has it been resolved which
platforms are covered by the law. Compare Respondent’s
Opposition to Application to Vacate Stay 1, n. 1 (Response),
with Application 11. The statute also includes a broad sev-
erability provision, see App. 52a–54a, so vacating the stay
requires a determination that applicants are likely to be
able to show that every provision of HB20 is unconstitu-
tional. What is more, the attorney general’s enforcement
power is limited to prospective relief. See id., at 52a (au-
thorizing the attorney general to seek “injunctive relief ”
and, if granted, “costs,” “reasonable attorney’s fees,” and
“reasonable investigative costs”). In this respect, this stat-
ute is quite different from one that authorizes imprison-
ment or severe monetary penalties for those who refuse to
comply. See, e.g., Ex parte Young, 209 U. S. 123, 127, 131
(1908) (noting that a law’s “penalties” were “so drastic” that
no one could test the law’s constitutionality “except at the
risk of confiscation of its property, and the imprisonment
for long terms in jails and penitentiaries”). Should the at-
torney general bring an enforcement action for injunctive
relief, applicants would then have an opportunity to argue
that the statute violates the First Amendment, whether fa-
cially or as applied to them.
I reiterate that I have not formed a definitive view on the
novel legal questions that arise from Texas’s decision to ad-
dress the “changing social and economic” conditions it per-
ceives. New State Ice Co. v. Liebmann, 285 U. S. 262, 311
(1932) (Brandeis, J., dissenting). But precisely because of
that, I am not comfortable intervening at this point in the

6 NETCHOICE, LLC v. PAXTON
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LITO, J., dissenting
proceedings. While I can understand the Court’s apparent
desire to delay enforcement of HB20 while the appeal is
pending, the preliminary injunction entered by the District
Court was itself a significant intrusion on state sovereignty,
and Texas should not be required to seek preclearance from
the federal courts before its laws go into effect. The Court
of Appeals, after briefing and oral argument, concluded that
the District Court’s order should be stayed, and a decision
on the merits can be expected in the near future. I would
not disturb the Court of Appeals’ informed judgment about
applicants’ entitlement to a stay.
For these reasons, I respectfully dissent.