NetChoice Lawsuits

Texas Attorney General Ken Paxton (R) wants the 5th U.S. Circuit Court of Appeals to reverse a district court ruling that partially blocked a state law requiring age-verification to prevent kids from seeing harmful content online. Paxton filed a notice of appeal Thursday at the U.S. District Court for the Western District of Texas (docket 1:24-cv-00849). The district court ruled last week that the law likely violates the First Amendment (see 2409030039). The Computer & Communications Industry Association, the plaintiff in the case, looks "forward to demonstrating to the appellate court why the First Amendment prohibits such state legislation," said CCIA Chief of Staff Stephanie Joyce.

Texas’ social media age-restriction law likely violates the First Amendment, a federal judge ruled Friday, partially blocking the measure and marking a victory for the tech industry (see 2408230014). The Computer & Communications Industry Association and NetChoice sued to block HB-18, which was set to take effect Sunday. The trade associations, which requested a preliminary injunction, met their burden in showing HB-18’s speech restrictions “fail strict scrutiny, are unconstitutionally vague, and are preempted by Section 230,” wrote Judge Robert Pitman, on behalf of the U.S. District Court for the Western District of Texas (docket 1:24-cv-00849). The decision enjoins HB-18’s monitoring and filtering provisions, but Pitman found the law’s remaining provisions can take effect because they don’t “unconstitutionally regulate a meaningful amount of constitutionally protected speech.” The court “recognized that this Texas law restricts protected speech in a way that likely violates the First Amendment and that it deserves the most stringent constitutional scrutiny,” said CCIA Chief of Staff Stephanie Joyce. “This ruling will ensure that internet users can continue accessing information and content online while we further prove that this law is unlawful and unconstitutional.”

TikTok engages in “expressive activity” when its algorithm curates content. Accordingly, the platform can’t claim Section 230 immunity from liability when that content harms users, the Third U.S. Circuit Court of Appeals ruled Tuesday (docket 22-3061). A three-judge panel remanded a district court decision dismissing a lawsuit from a mother of a 10-year-old TikTok user who unintentionally hung herself after watching a “Blackout Challenge” video on the platform. The U.S. District Court for the Eastern District of Pennsylvania dismissed the case, holding TikTok was immune under Communications Decency Act Section 230. The Third Circuit reversed in part, vacated in part and remanded the case back to the district court. Judge Patty Schwarz wrote the opinion, citing U.S. Supreme Court findings about “expressive activity” in Moody v. NetChoice (see 2402270072). SCOTUS found that “expressive activity includes presenting a curated compilation of speech originally created by others.” Schwarz noted the court’s holding that a platform algorithm reflects “editorial judgments” about compiling third-party speech and amounts to an “expressive product” that the First Amendment protects. This protected speech can also be considered “first-party” speech under Section 230, said Schwarz. According to the filing, 10-year-old Nylah Anderson viewed the Blackout Challenge on her “For You Page,” which TikTok curates for each individual user. Had Anderson viewed the challenge through TikTok’s search function, TikTok could have been viewed as more of a “repository of third-party content than an affirmative promoter of such content,” Schwarz wrote. Tawainna Anderson, the child’s mother who filed the suit, claims the company knew about the challenge, allowed users to post videos of themselves participating in it and promoted videos to children via an algorithm. The company didn’t comment.

Texas’ social media age-restriction law violates the First Amendment because it limits access to content in a way that prohibits free speech, the Computer & Communications Industry Association and NetChoice said Friday in a lawsuit seeking to block the new measure (docket 1:24-cv-00849) (see 2407300030). In a filing with the U.S. District Court of Western Texas, the trade associations requested a preliminary injunction against HB-18. Set to take effect Sept. 1, HB-18 requires that social media platforms obtain parental consent before allowing minors to use their services. CCIA Senior Vice President Stephanie Joyce said in a statement that Texas failed to justify the law’s “invasive and onerous” age-gate restrictions: “In keeping with the Supreme Court’s recent holding that Texas’s previous attempt to regulate speech likely violates the First Amendment, HB18 should be barred from becoming effective. Such attempts to dictate what users can access online are antithetical to a free society.”

Provisions in California’s age-appropriate social media design law likely violate the First Amendment, the 9th U.S. Circuit Court of Appeals ruled Friday in a victory for NetChoice (docket 23-2969) (see 2407170046). A three-judge panel found the Age-Appropriate Design Code Act’s (AB-2273) impact assessment requirement likely violates the First Amendment because it requires that platforms make judgments about what online content could harm children. The ruling, issued by Judge Milan Smith, affirms a district court decision enjoining enforcement of the law’s Data Protection Impact Assessment requirement. However, the court remanded the case back to the district court for further consideration on other aspects of the law. It’s “unclear from the record” whether other challenged provisions “facially violate the First Amendment,” or the unconstitutional aspects can be separated from valid provisions of the law, the court said. NetChoice is “likely to succeed” in showing that the law’s requirement that “covered businesses opine on and mitigate the risk that children may be exposed to harmful or potentially harmful materials online facially violates the First Amendment,” Smith wrote. The U.S. District Court for the Northern District of California in September granted NetChoice's request for a preliminary injunction. The lower court ruled the state has “no right to enforce obligations that would essentially press private companies into service as government censors, thus violating the First Amendment by proxy.” California Attorney General Rob Bonta (D) appealed. NetChoice Litigation Center Director Chris Marchese called the decision a victory for free expression: “The court recognized that California’s government cannot commandeer private businesses to censor lawful content online or to restrict access to it.” Bonta’s office didn’t comment Friday.

Maryland digital ad tax litigation moved back to the 4th U.S. Circuit Court of Appeals. In a Tuesday order, the 4th Circuit required an opening brief by Sept. 15 from appellants U.S. Chamber of Commerce, NetChoice and the Computer & Communications Industry Association. Maryland should respond by Oct. 15, the court said. The industry groups are appealing a July decision of the U.S. District Court for Maryland, which issued its final judgment Thursday. The case went back and forth between the two courts previously, with the district court last month dismissing the remaining count of plaintiffs’ complaint (see 2407050012).

The 5th U.S. Circuit Court of Appeals should lift a preliminary injunction against Mississippi’s social media age-verification law, Mississippi Attorney General Lynn Fitch (R) argued in a filing Thursday (docket 24-60341) (see 2407290008). HB-1126 requires that social media platforms obtain parental consent to allow minors to access their services. NetChoice sued to block HB-1126 on free speech grounds and won a preliminary injunction from the U.S. District Court for Southern Mississippi on July 1 (see 2407160038). District Judge Halil Suleyman Ozerden on July 15 denied Fitch’s request to lift the injunction, finding NetChoice is likely to succeed on the merits of its First Amendment challenge. Fitch argued before the appeals court Thursday that the injunction rests on “facial claims that NetChoice failed to support.” Nothing in the law “facially” violates the First Amendment because it regulates online conduct, not online speech, said Fitch: The law’s “coverage turns on where harmful conduct toward minors online is most likely: the interactive social-media platforms that allow predators to interact with and harm children.”

Texas received $1.4 billion from Meta Tuesday, settling claims the Facebook parent captured biometric information in violation of state law. The same day, tech industry groups sued Texas over a kids’ online safety law. NetChoice and the Computer & Communications Industry Association (CCIA) said the 2023 law (HB-18), which requires that social media companies verify users’ ages and get parental consent for children younger than 18, violates the First Amendment in a way similar to a 2021 Texas social media law that went to the U.S. Supreme Court.

The 5th U.S. Circuit Court of Appeals shouldn’t stay a lower court’s decision that temporarily enjoins a Mississippi law requiring kids younger than 18 to get parental consent before accessing social media, NetChoice said at the appeals court Friday. Mississippi Attorney General Lynn Fitch (R) appealed the U.S. District Court for Southern Mississippi preliminary injunction to the 5th Circuit earlier this month (see 2407030076 and 2407010062). The district court also denied Fitch’s request to stay that preliminary injunction (see 2407160038). Mississippi is incorrect that the law regulates conduct, not speech, NetChoice said. “The Act’s restrictions on protected speech are unconstitutional unless they survive strict scrutiny,” the tech industry group wrote. “They cannot, as the Act’s tailoring flaws preclude them from surviving any level of heightened First Amendment scrutiny. The Act restricts too much speech on too many websites where there are private alternatives to governmental regulation.”

Arkansas’ age-verification law violates the First Amendment and should be permanently enjoined, NetChoice argued Friday before the U.S. District Court for Western Arkansas in Fayetteville (docket 5:23-cv-05105). The court in August granted a preliminary injunction blocking the Social Media Safety Act (Act 689), concluding it “likely violates” the First Amendment and Due Process Clause. NetChoice said in its filing Friday that the state continues to rely on failed arguments that Act 689 is a narrowly tailored regulation of online conduct, not online speech. NetChoice argued courts have held the First Amendment can’t be evaded by regulating a “non-speech” component of a protected activity: For example, a law banning books through a restriction on the sale of ink is no less unconstitutional than a direct ban on book sales. NetChoice requested the court grant its motion for summary judgment.