NetChoice Lawsuits

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.

A district court dismissed one count of NetChoice’s 11-count complaint that argued Section 230 of the Communications Decency Act preempts Utah’s Minor Protection in Social Media Act. Utah Attorney General Sean Reyes (R) had sought dismissal of the count (see 2406030026), arguing that nothing in the state law is inconsistent with Section 230. “The court concludes the challenged provisions impose liability for conduct that falls beyond the protections Section 230 affords NetChoice members,” Judge Robert Shelby of the U.S. District Court of Utah ruled (case 2:23-cv-00911-RJS-CMR). “The Act’s prohibitions on the use of autoplay, seamless pagination, and push notifications are not inconsistent with Section 230.” The question is whether those bans “treat NetChoice members as the publisher or speaker of the third-party content they disseminate,” wrote Shelby in NetChoice v. Reyes. They don’t, he said. “The Act’s prohibitions focus solely on the conduct of the covered website -- the website’s use of certain design features on minors’ accounts -- and impose liability irrespective of the content those design features may be used to disseminate.” The judge added, “NetChoice’s interpretation of Section 230 as broadly immunizing websites from any liability for design decisions related to how a site ‘disseminate[s] and display[s] third-party speech’ is unmoored from the plain text of Section 230 and unsupported by the caselaw NetChoice cites.” In a statement Tuesday, NetChoice stressed that the court dismissed only one claim and that its First Amendment and other federal preemption claims remain in play. “We look forward to seeing Utah in court in August,” said Chris Marchese, NetChoice Litigation Center director.

In a dispute over an age-verification law, NetChoice and Mississippi asked to stay proceedings in the U.S. District Court for Southern Mississippi while the state’s appeal is pending. Mississippi appealed the court’s preliminary injunction of the law to the 5th U.S. Circuit Court of Appeals earlier this month (see 2407030076). District Judge Halil Suleyman Ozerden last week denied a request from Mississippi Attorney General Lynn Fitch (R) to stay the preliminary injunction (see 2407160038). Under a law that NetChoice challenged, parental consent is needed for those younger than 18 who access social media.

California’s age-appropriate design law doesn’t violate the First Amendment because it regulates social media data practices, not content, the office of Attorney General Rob Bonta (D) argued Wednesday before the 9th U.S. Circuit Court of Appeals. The court’s three-judge panel suggested the First Amendment applies.

Allowing Mississippi to enforce its new age-verification law would cause irreparable harm in violation of the First Amendment, a federal judge ruled Monday in a victory for NetChoice (see 2407030076) (docket 1:24-cv-170-HSO-BWR). The tech association is suing to block HB-1126, which requires that platforms obtain parental consent for social media users younger than 18. The U.S. District Court for Southern Mississippi on July 1 granted NetChoice’s request for a preliminary injunction against HB-1126, finding the association is likely to succeed on the merits of its First Amendment challenge. District Judge Halil Suleyman Ozerden on Monday denied a request from Mississippi Attorney General Lynn Fitch (R) to stay the preliminary injunction. Ozerden cited previous findings stating that the plaintiff’s “loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury. ... For the same reasons it granted preliminary injunctive relief, the Court finds that the Attorney General is not likely to succeed on the merits of the appeal.”

The U.S. Supreme Court has opened the door for lower courts to clarify when the government can regulate the tech industry’s content moderation practices, legal experts said Friday.

A U.S. District Court decision dismissing an industry challenge of a Maryland digital ad tax Wednesday relied in part on the U.S. Supreme Court’s ruling in Moody v. Netchoice that was issued just two days before the district court opinion was released (see 2407010053). Moreover, the cases involved many of the same parties. Plaintiffs in U.S. Chamber v. Lierman -- including CCIA and Netchoice -- didn’t say whether they would appeal, but previously they appealed two district court holdings in the case. “CCIA remains committed to ensuring that protected speech is not burdened, directly or indirectly, by governmental intrusion,” CCIA Senior Vice President Stephanie Joyce said in an email. “We will hold to that commitment as we evaluate the district court’s decision to dismiss our claim in Lierman that Maryland’s Digital Advertising Gross Revenues Tax Act impermissibly burdens online speech.”

Mississippi will appeal a preliminary injunction of an age-verification law to the 5th U.S. Circuit Court of Appeals, state Attorney General Lynn Fitch (R) said in a Wednesday notice at the U.S. District Court for Southern Mississippi. In addition, the state sought a stay pending appeal. The court put enforcement of the law on hold Monday (see 2407010062). Under the law, parental consent is needed for minors younger than 18 who access social media. The court said NetChoice showed a high likelihood of success in its complaint that raised constitutional concerns with the law. "On appeal, the Attorney General will show that this Court’s injunction cannot be squared with the Act’s targeted scope, with its focus on (and regulation of) non-expressive conduct of covered online platforms, or with precedent on facial challenges," the state said in an accompanying memo. "The Attorney General will also show that the harm to the State from enjoining the Act’s enforcement substantially outweighs any harm to NetChoice and its members from complying with the Act."

A Mississippi social media law requiring age verification may not be enforced while litigation continues, the U.S. District Court for Southern Mississippi decided Monday. The state law requiring parental consent for minors younger than 18 (HB-1126) was to take effect that day. But the court said NetChoice showed a high likelihood of success in its complaint (see 2406070059) against Mississippi Attorney General Lynn Fitch (R).