Text settings Story text Size Small Standard Large Width * Standard Wide Links Standard Orange * Subscribers only Learn more Minimize to nav Texas cannot enforce a law’s requirement that websites block minors from seeing harmful speech, the US Court of Appeals for the 5th Circuit ruled on Friday.
Big Tech lobby groups challenged the Texas “law’s requirement that certain social media-based ‘digital service providers’ (DSPs) monitor and filter content accessible to known minors to prevent exposure to several categories of potentially harmful speech,” judges wrote. In a 2-1 ruling in favor of the tech groups’ challenge, judges said the monitoring and filtering requirement is preempted by Section 230 of the federal Communications Decency Act of 1996.
The Computer & Communications Industry Association (CCIA) and NetChoice challenged portions of the Securing Children Online through Parental Empowerment Act (SCOPE Act), which applies to websites and online applications that collect or process personally identifying information. The tech groups won a preliminary injunction from a district court. Texas Attorney General Ken Paxton appealed to the 5th Circuit but wasn’t able to convince judges to reverse the injunction that prevents enforcement of the monitoring and filtering rules.
The district court held in August 2024 that the SCOPE Act’s monitoring and filtering requirement is preempted by Section 230’s prohibition on treating interactive computer services as the publisher or speaker of information provided by someone else. “CCIA and NetChoice have shown a likelihood of success on the merits of their preemption claim, which is enough to support the district court’s granting of a preliminary injunction in their favor,” the 5th Circuit panel wrote.
The law “would have forced websites to censor broad, vaguely defined categories of lawful speech,” NetChoice said. “The 5th Circuit is right to keep it blocked. Parents, not the government, are best positioned to decide what is appropriate for their own families, and today’s ruling protects that fundamental right.”
The famously conservative 5th Circuit appeals court has upheld several Texas laws imposing obligations on websites and online platforms. That includes a 2024 case in which it upheld an age-verification requirement imposed on porn websites.
In Friday’s ruling, judges noted the difference between the age-verification requirement in the porn website case and the content-filtering rule in the new case. “Unlike the age-verification requirement we addressed in that case, [the SCOPE Act’s] monitoring and filtering requirement is all about filtering content, and is thus preempted,” they found.
The 5th Circuit and other appeals courts “have interpreted Section 230 to provide DSPs with ‘broad immunity’ from ‘all claims stemming from their publication of information created by third parties,’” the 5th Circuit panel said. The state law required websites to prevent known minors’ exposure to material defined as obscene under Texas law, and other content “that promotes, glorifies, or facilitates” suicide, self-harm, eating disorders, substance abuse, stalking, bullying, harassment, grooming, trafficking, and “child pornography, or other sexual exploitation or abuse.”
Paxton argued that the Texas law imposes no liability for harms from the content they host. The law is not preempted because it “imposes compliance duties, not publisher liability,” and aligns with the child-protection goals of Section 230, he argued.
5th Circuit judges didn’t buy Paxton’s argument. They said the law provides for enforcement against violations by the attorney general’s office and lets parents of minors bring actions for declaratory judgments and injunctions.
“Actions to enforce the monitoring and filtering requirement are claims stemming from DSPs’ actions as publishers, that is, from their monitoring, screening, and deletion of content, and are thus squarely preempted by Section 230,” the ruling said.
Students Engaged in Advancing Texas (SEAT) alleged that students’ speech would be censored or that they would self-censor because of the law. Judges noted that the law “does not apply directly to them” and had not yet been enforced against platform operators when the students filed the complaint.
“In other words, the SEAT plaintiffs claim an injury in fact based on predicted censorship or a present chill, arising from someone else’s predictable response to the challenged law,” judges wrote. They decided that the group’s “fears of censorship based on indirect regulation are insufficient to support standing for a pre-enforcement challenge.”
The judges on the panel were Reagan appointee Patrick Higginbotham, Trump appointee James Ho, and Biden appointee Dana Douglas. While the three judges unanimously ruled against SEAT, Ho dissented from the decision to block the monitoring and filtering rules.
“The SCOPE Act isn’t preempted by section 230 for one simple reason: Because it regulates curation, not publication—first-party speech, not third-party speech,” Ho wrote. “So I would vacate the injunction in its entirety. Because the panel majority vacates the injunction only in part, I concur in the judgment in part and dissent in part.”
Ho contended that curation “is speech that is distinct from the underlying content.” While posts that appear on a child’s social media feed are the speech of third parties, “the algorithm that social media companies design to curate that feed constitute the first-party speech of the companies,” Ho wrote.
Ho cited Supreme Court Justice Clarence Thomas, saying that Thomas “suggested that social-media platforms are deploying the distinction between curation and third-party content inconsistently—and self-servingly—in an effort to turn § 230 into ‘a get-out-of-jail free card.’”
The 5th Circuit majority acknowledged Thomas’ “get-out-of-jail free” comment but said its ruling “does no more than straightforwardly apply our court’s precedents.” The panel majority said the First Amendment protects providers’ “editorial discretion from unconstitutional government regulation, and Section 230 protects those same decisions from civil liability based on third-party content. The argument that we must choose between them presents a false choice.”
