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`
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` Cite as: 596 U. S. ____ (2022)
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` ALITO, J., dissenting
`
`
`SUPREME COURT OF THE UNITED STATES
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`1
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`_________________
`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
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`ALITO and by him referred to the Court is granted. The May
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`11, 2022 order of the United States Court of Appeals for the
`Fifth Circuit staying the district court’s preliminary injunc-
`tion is vacated.
`JUSTICE KAGAN would deny the application to vacate
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`stay.
`JUSTICE ALITO, with whom JUSTICE THOMAS and
`JUSTICE GORSUCH join, dissenting from grant of application
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`to vacate stay.
`This application concerns issues of great importance that
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`will plainly merit this Court’s review. Social media plat-
`forms have transformed the way people communicate with
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`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-
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`form[s]” that are “open to the public;” that “enabl[e] users
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`to communicate with other users for the primary purpose of
`posting information, comments, messages, or images;” and
`——————
`
`
` 1See, e.g., E. Shearer, Pew Research Center, More Than Eight-in-Ten
` Americans Get News From Digital Devices (Jan. 12, 2021), https://www.
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`pewresearch.org/fact-tank/2021/01/12/more-than-eight-in-ten-americans-
`get-news-from-digital-devices.
`
`
`
`
`
`
`
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`
`
`
`
`
`
`

`

`2
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`
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` NETCHOICE, LLC v. PAXTON
`
` ALITO, 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
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`to vacatur of the stay, applicants must show, among other
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`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) (ROBERTS, C. J., dissenting) (slip op., at 1);
`
`Wisconsin Legislature v. Wisconsin Elections Commission,
`595 U. S. ___, ___ (2022) (SOTOMAYOR, J., dissenting) (slip
`op., at 1) (“existing precedent”). And whether applicants
`are likely to succeed under existing law is quite unclear.
`
`
`
`

`

`3
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`
`
` Cite as: 596 U. S. ____ (2022)
`
` ALITO, 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
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`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
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`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
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`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,”
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`
`
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`

`

`
`
`
`
`4
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`
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`NETCHOICE, LLC v. PAXTON
`
` ALITO, J., dissenting
`
`
` App. 40a, and as neutral forums for the speech of others.2
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`These representations suggest that the covered social me-
`dia platforms—like the cable operators in Turner—do not
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`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
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`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)
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`(THOMAS, J., concurring) (slip op., at 6–7).
`
`
`
`
`If anything, Texas submits, its arguments regarding the
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`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’
`——————
` 2Texas also suggests that applicants’ position in this litigation is in
`
`
`
` conflict or tension with the positions of its members in cases regarding
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`the interpretation of §230 of the Communications Decency Act of 1996,
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`47 U. S. C. §230. That statute directs, among other things, that “[n]o
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`provider . . . of an interactive computer service shall be treated as the
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`publisher or speaker of any information provided by another information
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` 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
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`any respect, id. §230(f )(3).” Response 36. And Texas suggests that,
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`given that many of applicants’ members have emphasized their “ ‘neu-
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`tral[ity]’ ” and their function as “ ‘conduits’ ” for the speech of their users
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`
`
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`(see id., at 37–38, and nn. 11–18), the Court should view their assertions
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`of a First Amendment right to engage in “ ‘editorial discretion’ ” with
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`
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`some skepticism.
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`
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`
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`

`

`5
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`
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` Cite as: 596 U. S. ____ (2022)
`
` ALITO, J., dissenting
`
`
`arguments, the decision could have widespread implica-
`
`tions with regard to other disclosures required by federal
`
`and state law.
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`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
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`state courts would interpret this statute if it were applied
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`to applicants’ businesses; nor has it been resolved which
`platforms are covered by the law. Compare Respondent’s
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`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
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`requires a determination that applicants are likely to be
`able to show that every provision of HB20 is unconstitu-
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`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 ”
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`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-
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`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-
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`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
`
`
`
`
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`

`

`6
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`
`
`
` NETCHOICE, LLC v. PAXTON
`
` ALITO, J., dissenting
`
`
`proceedings. While I can understand the Court’s apparent
`desire to delay enforcement of HB20 while the appeal is
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`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
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`the federal courts before its laws go into effect. The Court
`of Appeals, after briefing and oral argument, concluded that
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`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.
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`