Case: 21-51178
Document: 00516474571
Page: 7
Date Filed: 09/16/2022
No. 21-51178
Texas timely appealed. On December 15, 2021, Texas moved for a
stay of the preliminary injunction. We granted that motion on May 11, 2022.
On May 31, 2022, in a 5–4 decision, the Supreme Court vacated our stay.
Justice Kagan noted her dissent. Justice Alito, joined by Justice Thomas and
Justice Gorsuch, authored a six-page dissenting opinion to argue that our stay
should have remained undisturbed.
II.
We review the district court’s preliminary injunction for abuse of
discretion. Atchafalaya Basinkeeper v. U.S. Army Corps of Eng’rs, 894 F.3d
692, 696 (5th Cir. 2018). A district court abuses its discretion if it grants an
injunction based on clearly erroneous factual findings or erroneous
conclusions of law. Ibid.
A preliminary injunction is “an extraordinary remedy that may only
be awarded upon a clear showing that the plaintiff is entitled to such relief.”
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). “A plaintiff
seeking a preliminary injunction must establish that he is likely to succeed on
the merits, that 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.” Id. at 20.
III.
The Platforms contend that Section 7 of HB 20 is facially
unconstitutional. We disagree. We (A) first reject the Platforms’ facial
overbreadth challenge because Section 7 does not chill speech; if anything, it
chills censorship. Then we (B) turn to the First Amendment’s text and
history, which offer no support for the Platforms’ claimed right to censor.
Next, applying Supreme Court precedent, we (C) hold that Section 7 does
not regulate the Platforms’ speech at all; it protects other people’s speech and
regulates the Platforms’ conduct. Our decision (D) is reinforced by 47 U.S.C.
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