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05/11/2022

NetChoice Opposes the 2-1 Split Fifth Circuit Order to Lift the Injunction on HB 20

Chris Marchese
Chris Marchese Counsel

Washington, D.C.—In a highly unusual move, a split 2-1 panel of Fifth Circuit judges lifted the district court’s injunction of HB 20 without deciding on the merits and without issuing a written decision. Given the unprecedented move, NetChoice and CCIA are evaluating our legal options. 

For background: 

  • September 9, 2021 – Texas Governor Greg Abott signed HB 20 into law. 
  • September 22, 2021- NetChoice and CCIA sued the State of Texas in the Western District of Texas, arguing that the law is unconstitutional. 
  • December 1, 2021 – Federal District Court Judge Robert Pitman agreed, and issued an injunction prohibiting Texas from enforcing HB 20. The district court also held that HB 20 is so constitutionally flawed, it must be enjoined in its entirety. Texas appealed. 
  • May 9, 2022 – the Fifth Circuit Court of Appeals—Judges Edith H. Jones, Andrew S. Oldham, and Leslie H. Southwick—heard oral arguments on Texas’s appeal. 
  • May 11, 2022 – in a highly unusual move, the panel issued a 2-1 split order granting Texas’s motion to lift the injunction pending resolution on the merits. The split panel issued the order without issuing a written opinion. 

The 2-1 split order issued on May 11 does not address the lawsuit’s merits—in other words, the Court did not evaluate HB 20’s constitutionality; the Court is instead letting the law take effect while the case proceeds in the lower court. In practical terms, this means the district court is free to rule on the merits and hold that HB 20 is unconstitutional—albeit while the law is in effect.

We’d ordinarily expect the Court to issue a written order and accompanying opinion—especially when there’s a noted dissent, and especially when the legal issues are as weighty as these.

Today’s 5th Circuit order does not bear on NetChoice and CCIA’s lawsuit against the State of Florida, which will be decided by the 11th Circuit Court of Appeals. The district court’s injunction against SB 7072 in Florida remains in full effect. 

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“In an unusual and unfortunate move, a split 2-1 Fifth Circuit panel lifted the injunction without ruling on the merits and without issuing an opinion explaining the order. Because HB 20 is constitutionally rotten through and through, we are weighing our options and plan to appeal the order immediately,” said Carl Szabo, Vice President and General Counsel of NetChoice. 

“HB 20 is an assault on the First Amendment—and we remain confident the courts will strike it down as unconstitutional,” continued Szabo.

“In the meantime, unfortunately, Americans—especially Texans—will be negatively impacted.”

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