Facts
- In 2021, Texas enacted House Bill 20 (HB20), regulating publicly accessible social-media platforms with at least 50 million active U.S. users in a calendar month.
- Section 7 of HB20 barred covered platforms from “censoring” users based on viewpoint; “censor” was defined broadly to include blocking, banning, removing, deplatforming, demonetizing, deboosting, or restricting expression.
- Section 2 of HB20 imposed disclosure duties on covered platforms, including publishing acceptable-use policies and issuing biannual transparency reports.
- HB20 also required covered platforms to provide procedures allowing users to appeal a platform decision to remove the user’s content.
- NetChoice, LLC and the Computer & Communications Industry Association—trade associations representing major social-media platforms covered by HB20—filed a preenforcement facial challenge in federal district court against Texas Attorney General Ken Paxton.
- NetChoice argued, among other things, that HB20 violated the First Amendment by interfering with platforms’ editorial discretion, including a claimed right to decline to disseminate speech created by others.
- The federal district court agreed that NetChoice was likely to succeed on its First Amendment claim and entered a preliminary injunction barring Texas from enforcing HB20.
- Texas appealed. After briefing and argument, the Fifth Circuit stayed the district court’s preliminary injunction pending appeal, which would have allowed HB20 to take effect during the appeal.
- NetChoice filed an emergency application in the Supreme Court seeking to vacate the Fifth Circuit’s stay and restore the district court’s injunction.
Issues
- Whether the Supreme Court should vacate the Fifth Circuit’s stay of the district court’s preliminary injunction that blocked enforcement of Texas HB20 while the appeal proceeded.
- Whether applicants seeking that relief satisfied the standards for emergency stay relief, including showing a substantial likelihood of success on the merits and irreparable harm absent relief.
Decision
- The Supreme Court granted the application to vacate the stay.
- The Court vacated the Fifth Circuit’s order staying the district court’s preliminary injunction.
- As a result, the district court’s preliminary injunction again barred Texas from enforcing HB20 while the Fifth Circuit appeal continued.
- The order did not resolve the merits of HB20’s constitutionality and contained no majority reasoning.
- Justice Alito filed a dissenting opinion, joined by Justices Thomas and Gorsuch, arguing that the applicants had not shown entitlement to the extraordinary relief granted.
- Justice Kagan noted separately that she would deny the application to vacate the stay.
Legal Principles
- Vacatur of a stay is extraordinary relief; the applicant must satisfy traditional stay factors, including a substantial likelihood of success on the merits, irreparable harm, and equitable considerations.
- An order granting or denying emergency relief pending appeal is interlocutory and does not finally decide the underlying First Amendment challenge.
- In this case, the Court’s unsigned order provided no written explanation; the only written analysis in the Supreme Court record at this stage was in the dissent.
- A stay order in this posture primarily determines whether a challenged law may be enforced during ongoing appellate proceedings, not whether the law is valid.
Conclusion
NetChoice, LLC v. Paxton (2022) is a Supreme Court emergency-relief order, not a merits decision: the Court vacated the Fifth Circuit’s stay and reinstated the district court’s preliminary injunction, blocking enforcement of Texas HB20 while the appeal continued, with a dissent by Justice Alito (joined by Justices Thomas and Gorsuch) and a separate note by Justice Kagan that she would deny relief.