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Thoughts on the Supreme Court's Reinstatement of the Preliminary Injunction Against the Texas Social Media Law

The ruling is not a final decision on the merits. But it likely signals that at least five Supreme Court justices believe the law is unconstitutional.

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As Eugene Volokh notes, the Supreme Court today reinstated a trial court preliminary injunction blocking enforcement of Texas' social media law. This reverses a 2-1 Fifth Circuit court of appeals ruling lifting the injunction and ensures that the law cannot go into effect as the appeals process proceeds. Among other things, the law in question bars major social media sites like Facebook and Twitter from imposing almost any content-based restrictions on the material users are allowed to post on their sites.

Eugene and Will Baude have useful commentary about various aspects of this ruling. I would add the point that, while this is not a final decision on the merits, it strongly suggests that at least five Supreme Court justices believe the law is unconstitutional, violating the First Amendment.

One of the criteria for granting a preliminary injunction in federal court is that the plaintiff must prove they are likely to succeed on the merits. The five justices who voted to reinstate the preliminary injunction—Chief Justice Roberts, Breyer, Sotomayor, Kavanaugh, and Barrett—are well aware of this fact. They almost certainly would not have voted as they did unless they believe the law is indeed likely to be unconstitutional.

Obviously, they also must have concluded that the case meets the other standards for a preliminary injunction. As Judge Robert Pitman explained in the trial court ruling granting the injunction, these are that  the plaintiff must show "he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest."

It's also possible that one or more of the dissenting justices also might ultimately conclude that the law is unconstitutional. Justice Elena Kagan dissented without opinion. Thus, we don't know which factor she believes the plaintiffs failed to prevail on. It could be she thinks they are wrong on the merits. But it could also be she concluded they fall short on one of the other three requirements.

Justice Samuel Alito wrote a dissent joined by Clarence Thomas and Neil Gorsuch. That dissent does indeed focus on likelihood of success. But significantly, it does not conclude that Texas is actually likely to prevail, merely that the plaintiffs haven't met their burden because "I have not formed a definitive view on the novel legal questions that arise from Texas's decision to address the 'changing social and economic' conditions it perceives." Alito suggests, therefore, that he is uncertain about the right outcome here. Thus, it is possible that one or more of these justices could also rule in favor of the plaintiffs if the Court ever decides to address this issue on the merits.

Such a vote in favor of the plaintiffs is unlikely in the case of Justice Clarence Thomas, who has previously expressed sympathy for the argument that the government can treat social media firms as "common carriers" required to post virtually any content without discrimination. But it is more plausible for Alito and Gorsuch, neither of whom joined Thomas' 2021 concurring opinion expressing that view.

I have previously argued that the Texas law and others like it do indeed violate the First Amendment, and would pose a grave threat to freedom of speech if upheld (see also here for my critique of the common carrier theory). I agree with Judge Pitman's analysis in his ruling against the Texas law, and with the recent Eleventh Circuit appellate ruling against Florida's similar legislation. The Eleventh Circuit decision was authored by Judge Kevin Newsom, a conservative Trump appointee.

While today's Supreme Court ruling is far from the end of the litigation over these issues, it sends a strong signal that the Court is likely to strike down laws like those enacted by Texas and Florida, should they ever take a case addressing these matters. And there is a good chance the issue will indeed eventually get to the Supreme Court, if lower appellate courts end up being divided on it. It's an obviously important cutting-edge constitutional question, and the justices are unlikely to allow a circuit split on it to persist for long.