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Ridiculous Texas Content Moderation Bill Shelved Until Supreme Court Can Consider It

Normally that wouldn’t be surprising, and normally that wouldn’t even require a blog post, but because nothing in the 5th Circuit makes sense these days, it is a little surprising and that is deserves a post to note that despite the folly of Judge Andy Oldham’s decision to put Texas content moderation law back on the books, he has now agreed to put this decision on hold while the parties ask the Supreme Court to hear the case.

Again, such a thing is pretty standard in many cases, but this is the case where, in May, Oldham decided to say that the law must come into force immediately without any explanation. This required a Rush to the Supreme Court’s shadow case, where the justices put the law on hold, in order to allow the regular and normal course of the procedure. As you well know, months later Oldham finally released their crazy decision which forced Oldham to ignore a century of precedent, as well as decades of conservative 1st Amendment orthodoxy to argue that 1st Amendment rights of association no longer apply to social media.

NetChoice and CCIA, the trade group plaintiffs in the case, asked Oldham to stay its decision (i.e. prevent it from taking effect) in order to ask the Supreme Court to intervene. A few weeks ago, Florida already asked the Supreme Court hear his call from 11th Circuit Rejection of a similar law. The two laws are not identical and differ in some potentially important respects, but the decisions of the two appellate courts are clearly in conflict, and it is extremely likely that the Supreme Court will take these cases (and probably merge them into one) , in what is perhaps the most important Supreme Court case concerning the Internet.

Perhaps surprisingly, Texas chose not to oppose the stay request. Again, in normal times, this would not be a surprise or even remarkable. But, again, these are not normal times, and Texas politicians continue to insist that they really, really need this law. Of course, they’re smart enough to know that the case would end up going to the Supreme Court anyway, so it probably didn’t do anyone any good to play petty politics about it.

Of course, there’s also the other theory: that this is a case of the dog (Texas) grabbing the car (a patently unconstitutional content moderation law), and has no idea what what to do with it. I kinda wonder if at least some people in the Texas government were beginning to realize how messed up things would be if the law went into effect, because that’s literally impossible to respect. So waiting for the Supreme Court to re-examine the case gives these people a “way out”. They don’t end up creating a huge mess for the internet days before the midterm elections, and if (fingers crossed) the Supreme Court is successful next year, they can just blame the Supreme Court on their gullible base, rather than having to face the repercussions of their resentment – misbehavior.

Ridiculous Texas Content Moderation Bill Shelved Until Supreme Court Can Consider It

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