Background
The case involves a challenge to Texas Senate Bill thirteen, which prohibits certain public entities from investing in private funds that refuse to invest in energy companies. The district court had previously issued a preliminary injunction, which the state defendants sought to stay pending appeal.
The court’s reasoning
The per curiam order grants the stay without a detailed written opinion. In a concurring opinion, Judge James C. Ho reasoned that the statute regulates conduct in the form of investment decisions rather than speech. He noted that investment decisions are not inherently expressive and that the Constitution permits government agencies to care about how public funds are used. Judge Ho cited Supreme Court precedent, including Grove City College v. Bell and Rumsfeld v. FAIR, establishing that Congress may prohibit discriminatory practices and require nondiscrimination as a condition of receiving public funds without offending the First Amendment.
What it means going forward
The stay allows the Texas law to remain in effect while the appeal proceeds, preventing the district court’s injunction from halting the state’s investment restrictions.
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