NetChoice Lawsuits

The 5th U.S. Circuit Court of Appeals should affirm a lower court’s decision that blocks Mississippi’s social media age-verification law because it violates the First Amendment, the American Civil Liberties Union, the Electronic Frontier Foundation, Chamber of Progress and other groups argued in filings Thursday (docket 24-60341). The amici filed in support of NetChoice, which won a preliminary injunction against the law from the U.S. District Court for Southern Mississippi on July 1 (see 2407160038). The ACLU and EFF filed a joint brief, arguing that online age verification blocks access to protected speech for millions of adults who lack proof of identification. Users have a right to be anonymous online, and age-verification requirements force people to put sensitive data at risk of inadvertent disclosure in data breaches, they said. Chamber of Progress filed with LGBT Tech, the Woodhull Freedom Foundation and the Coalition for Responsible Home Education. Minors don’t “shed their First Amendment rights at the gateway to the internet,” they said: Their participation in the “marketplace of ideas,” which includes unpopular ideas, is “essential to a functioning democracy.” The Foundation for Individual Rights and Expression argued that legal precedent requires government to show there isn’t a “less restrictive alternative” to achieving its objective, and Mississippi hasn’t shown the new law is the “least restrictive means of addressing concerns about young peoples’ use of social media.”

Tennessee’s social media age-verification law should be blocked because it violates the First Amendment, NetChoice said Thursday, filing a lawsuit with the U.S. District Court for the Middle District of Tennessee. Tennessee’s HB-1891 violates the Constitution in the same way as laws in California, Arkansas, Ohio, Mississippi, Texas and Utah, the association said. “HB 1891 would prevent Tennesseans -- minors and adults alike -- from discussing politics, catching up with friends, or reading the news online unless they surrender their sensitive personal data first,” said Litigation Center Associate Director Paul Taske. “Not only does this violate the First Amendment, but it also endangers the security of all Tennesseans, particularly children by creating a data target for hackers and criminals.” The Computer & Communications Industry Association wrote Gov. Bill Lee (R) in April, seeking a veto of the measure. HB-1891 holds social media platforms liable for failing to verify age, but it also tells companies to delete the information, which leaves them without a “means to document their compliance,” said CCIA.

Kids’ online safety bills at the federal and state levels are creating compliance concerns with their vague language that potentially runs afoul of the First Amendment, a compliance attorney said Friday. Mark Brennan, a tech and telecom attorney with Hogan Lovells, told a webinar that bills like the Kids Online Safety Act (KOSA), which passed the Senate and the House Commerce Committee (see 2409230044), presents a legal framework with a lot of compliance “mystery.” He noted federal courts have ruled similar state-level bills are unconstitutional. The Computer & Communications Industry Association and NetChoice are leading several tech industry challenges against state laws around the country, including measures in Texas, Florida, Mississippi and Georgia (see 2409260053, 2409260062 and 2407170046). The knowledge standard contemplated in KOSA effectively tells companies they don’t necessarily need to verify age, but they’re also subject to “significant penalties” for harms minors suffer when interacting on platforms, said Brennan. It creates an environment where companies feel like they “have no choice but to verify" the age of all users, not just minors. Tech associations have argued age-verification requirements are a First Amendment violation because of their impact on access to protected speech.

Mississippi’s social media age-verification law is unconstitutional because it places a “government-mandated” barrier blocking access to protected speech, NetChoice argued Thursday before the 5th U.S. Circuit Court of Appeals (see 2408010054). HB-1126 disfavors social speech in relation to professional speech and media-driven speech, the trade association said. NetChoice won a preliminary injunction against the law from the U.S. District Court for Southern Mississippi on July 1 (see 2407160038), and Mississippi Attorney General Lynn Fitch (R) appealed.

The 11th U.S. Circuit Court of Appeals should reverse a district court injunction against a Georgia anti-retail-theft law because the tech industry failed to show federal law preempts the measure, Georgia Attorney General Christopher Carr (R) argued Wednesday (docket 24-12273). Gov. Brian Kemp (R) signed the Combating Organized Retail Crime Act (Act 564) May 6. It requires that e-commerce platforms like Facebook Marketplace and Craigslist verify information about high-volume sellers to prevent online sales of stolen goods, with a specific focus on under-the-radar cash transactions. U.S. District Judge Steven Grimberg in July granted NetChoice’s request for preliminary injunction. Grimberg found the Inform Consumers Act, a 2023 federal law that imposes similar verification requirements on high-volume sellers, preempts Act 564. The state measure conflicts with the federal law’s language limiting its applications to transactions that “only” take place through the online marketplace in question, the judge found. Carr argued NetChoice can’t show that it’s impossible for companies to comply with both the federal and state laws. The Georgia law “slightly differs” from the federal law when it broadens the category of “discrete sales.” Georgia’s “slightly broader monitoring obligations go beyond federal regulation, not against federal regulation,” he argued. “They are complementary, there is no conflict.” NetChoice said in July that Act 564 “violates federal law and the Supremacy Clause, smothering Georgia’s thriving businesses with red tape.”

The 5th U.S. Circuit Court of Appeals should lift a district court injunction against Texas’ social media law and remand the case to assess the tech industry’s First Amendment challenge at a more granular level, Texas Attorney General Ken Paxton (R) argued Wednesday (docket 21-51178).

California Gov. Gavin Newsom (D) vetoed a privacy bill the same day that he signed a measure aimed at protecting children on social media websites. On Monday, the Computer & Communications Industry Association (CCIA) applauded Newsom’s veto of a privacy bill on Friday that would have required global opt-outs in web browsers and mobile operating systems. But Consumer Reports slammed the decision to kill the bill that was sought by the California Privacy Protection Agency (CPPA). Meanwhile, CCIA slammed his signing of legislation meant to reign in algorithms on social platforms.

The House Commerce Committee on Wednesday approved a pair of kids’ online safety bills on a voice vote, opening the door for potential floor action and negotiations with the Senate.

A three-judge panel from the U.S. Court of Appeals for the D.C. Circuit was skeptical on Monday of TikTok’s argument that the Protecting Americans from Foreign Adversary Controlled Applications Act's planned ban of the platform in the U.S. is unconstitutional (see 2406210004). The statute requires China-affiliated ByteDance must sell TikTok by Jan. 19 to avoid the ban. The D.C. Circuit’s review also looped in a related challenge to that law from a group of TikTok creators. DOJ and ByteDance want the D.C. Circuit to rule by early December so they can have time for a likely challenge in the U.S. Supreme Court before the Jan. 19 divestiture deadline.

The U.S. District Court of Utah granted NetChoice’s request for a preliminary injunction against the state’s Minor Protection in Social Media Act, which was set to go into effect in October. The injunction bars Utah from enforcing the law until NetChoice’s legal challenge is resolved (see 2407230034). The court “recognizes the State’s earnest desire to protect young people from the novel challenges associated with social media use,” said the ruling Tuesday from Judge Robert Shelby. “But owing to the First Amendment’s paramount place in our democratic system, even well-intentioned legislation that regulates speech based on content must satisfy a tremendously high level of constitutional scrutiny.” Utah Attorney General Sean Reyes (R) hasn’t, Shelby wrote. “Utah’s law not only violates the First Amendment, but if enforced would backfire and endanger the very people it’s meant to help,” NetChoice Litigation Center Director Chris Marchese said in a news release. This ruling is NetChoice’s sixth successful request for an injunction against a state social media law. “We look forward to seeing this law, and others like it, permanently struck down and online speech and privacy fully protected across the country,” Marchese said. Shelby said that the law was underinclusive in what companies and websites it applied to and that its provisions against autoplay didn’t appear to prevent the behavior it targeted. “Defendants do not offer any evidence that requiring social media companies to compel minors to push ‘play,’ hit ‘next,’ and log in for updates will meaningfully reduce the amount of time they spend on social media platforms,” Shelby wrote. “We’re disappointed in the district court’s decision preliminarily enjoining Utah’s Minor Protection in Social Media Act," a spokesperson for Reyes said. "The AG’s office is analyzing the ruling to determine next steps. We remain committed to protecting Utah’s youth from social media’s harmful effects.”