Texas asks Fifth Circuit to unblock social media child safety law

(CN) — The state of Texas appealed to a Fifth Circuit panel Monday to reverse orders by a federal judge blocking portions of a Texas law aimed at protecting minors from harmful content on social media.

The law, known as the Securing Children Online through Parental Empowerment, or SCOPE, Act, requires social media companies to create various protections for users under the age of 18.

Among these are provisions that require platforms to verify the ages of users and create filters preventing minors from being shown content that “promotes, glorifies, or facilitates” things like “suicide,” “substance abuse” and “sexual exploitation or abuse.”

Another provision prohibits platforms from showing targeted ads to minors without parental consent, and even then the law requires platforms to prevent advertisers from targeting minors with ads that “facilitate, promote, or offer a product, service, or activity” that is illegal for minors in Texas.

U.S. District Judge Robert Pitman of the Western District of Texas issued preliminary injunctions on those provisions in a pair of challenges to the law. He found the law restricts overly broad categories of speech that could extend to advocacy for things like drug deregulation or physician-assisted suicide.

But Texas Assistant Solicitor General Cameron Fraser told the Fifth Circuit panel Monday that Pitman’s ruling stretches the language of the statute.

“It gets hard to take these hypotheticals seriously at a certain point,” Fraser said.

Pitman, a Barack Obama appointee, had ruled, “In its attempt to block children from accessing harmful content, Texas also prohibits minors from participating in the democratic exchange of views online.”

“Even accepting that Texas only wishes to prohibit the most harmful pieces of content, a state cannot pick and choose which categories of protected speech it wishes to block teenagers from discussing online,” the judge added.

But Fraser said Monday that Pitman failed to look at all potential applications of the law to see whether unconstitutional applications of the act substantially outweigh its constitutional applications, which he said the U.S. Supreme Court required for First Amendment facial challenges in its 2024 ruling in NetChoice v. Moody .

“The plaintiffs have not even tried to carry that burden,” Fraser said.

In one suit, trade groups representing major tech companies like Google, X and Meta challenged the law, arguing that the content filtering requirement violates the First Amendment.

Scott Keller, an attorney representing the technology trade groups, told the panel that social media platforms already have their own moderation policies that guard against harmful content. The problem with the SCOPE Act, he said, is that it restricts “categories of speech that are not tethered at all” to categories of speech that have historically been recognized as unprotected by the First Amendment.

“Government cannot commandeer private websites to monitor and filter speech on the state’s behalf, and it cannot create new categories of unprotected speech,” Keller said.

In a separate case, the free speech advocacy group Foundation for Individual Rights and Expression sued Texas on behalf of minors who fear the law will restrict content they wish to view on social media, as well as social media users who want to disseminate content to minors. The plaintiffs in that case challenge the content filtering requirement as well as the restrictions on targeted advertising.

Pitman had also found that the SCOPE Act’s content filtering requirement is preempted by Section 230 of the Communications Act of 1934. Enacted as part of the Communications Decency Act of 1996, Section 230 is a federal law that protects online platforms from liability for content posted by their users.

U.S. Circuit Judge James Ho asked Keller whether there was “tension” in relying on both the First Amendment and Section 230.

“First Amendment means you’re protecting your own speech; 230 is about being held liable for third-party speech,” Ho, a Donald Trump appointee, said.

Keller said there is no tension between the two.

“Whether you’re talking about authoring speech, disseminating speech or viewing speech, all of it’s protected by the First Amendment,” he said.

As for the targeted advertising restrictions, Texas argues they only apply to commercial speech, which requires a lower level of First Amendment scrutiny than non-commercial speech.

But FIRE attorney Robert Corn-Revere, representing the user plaintiffs, told the panel that nothing in the text of the statute limits the advertising restrictions to commercial advertisements. Pitman found the law could apply to non-commercial advertisements like public service announcements.

“The sections describe the prohibition as simply applying to advertising, and it doesn’t define what advertising means,” Corn-Revere said.

Ho suggested the panel could refer the issue to the Texas Supreme Court to interpret whether the advertising restrictions include non-commercial advertisements.

Senior U.S. Circuit Judge Patrick Higginbotham, a Ronald Reagan appointee, and U.S. Circuit Judge Dana Douglas, a Joe Biden appointee, joined Ho on the panel.

Provisions of the SCOPE Act that were not preliminarily blocked took effect in September 2024. Texas Attorney General Ken Paxton filed a lawsuit against TikTok in October 2024, accusing the platform of violating the SCOPE Act by sharing minors’ personal data without parental consent.