The US Court of Appeals for the 5th Circuit kept the Texas SCOPE Act blocked in part on Friday, ruling that Texas cannot enforce rules requiring certain websites and apps to filter content for minors. The 2-1 decision leaves in place a preliminary injunction won by the Computer & Communications Industry Association and NetChoice against the law’s monitoring and filtering mandate.
The challenged provisions apply to online services that collect or process personally identifying information and qualify as social media-based “digital service providers.” Texas sought to require those providers to keep known minors from seeing categories of content the law treats as harmful, including material defined as obscene under Texas law and content that “promotes, glorifies, or facilitates” suicide, self-harm, eating disorders, substance abuse, stalking, bullying, harassment, grooming, trafficking, child pornography, or other sexual exploitation or abuse.
Why did the 5th Circuit block the Texas SCOPE Act?
The panel majority said the filtering rule is likely preempted by Section 230 of the federal Communications Decency Act, which generally bars treating an online service as the publisher or speaker of information supplied by someone else. In the court’s view, Texas was trying to regulate decisions about monitoring, screening, and removing third-party content, the exact territory Section 230 protects from civil liability.
The ruling affirmed a district court’s August 2024 conclusion that CCIA and NetChoice were likely to succeed on their preemption claim. That likelihood was enough, the 5th Circuit said, to support the preliminary injunction against enforcing the monitoring and filtering provisions while the case continues.
Texas Attorney General Ken Paxton argued that the law created compliance duties rather than publisher liability and said it fit with Section 230’s child-protection goals. The panel majority rejected that framing, noting that the law allowed enforcement by the attorney general and allowed parents to sue for declaratory judgments and injunctions.
NetChoice said the law would have required websites to censor broad and vague categories of lawful speech. The group said parents, rather than the state, should decide what is appropriate for their families.
What parts of the law can Texas still enforce?
The decision was not a complete defeat for Paxton. The 5th Circuit said Students Engaged in Advancing Texas, a student group that also challenged the law, lacked standing for its pre-enforcement claims. The judges said the law did not apply directly to the students and had not been enforced against platform operators when the complaint was filed.
Because of that standing ruling, other parts of the SCOPE Act may be enforced. Those provisions require platforms to have users register their ages before creating accounts, bar targeted advertising to known minors, require commercially reasonable efforts to stop advertisers from targeting known minors with ads for illegal products or activities, and require age verification when more than one-third of a platform’s content is obscene.
The panel drew a line between those rules and the content-filtering mandate. The 5th Circuit previously upheld a Texas age-verification requirement for porn sites, but the judges said the SCOPE Act’s filtering rule was different because it directly concerned content moderation.
Who dissented?
The panel included Judge Patrick Higginbotham, appointed by President Ronald Reagan; Judge James Ho, appointed by President Donald Trump; and Judge Dana Douglas, appointed by President Joe Biden. All three judges agreed that the student plaintiffs lacked standing. Ho dissented from the decision to keep the filtering provisions blocked.
Ho argued that the SCOPE Act regulates curation rather than publication. In his view, a social media company’s algorithmic feed design is the company’s own speech, separate from the third-party posts shown in that feed. He cited Justice Clarence Thomas’s criticism that platforms use Section 230 too broadly as a “get-out-of-jail free card.”
The majority said it was applying 5th Circuit precedent. It also rejected the idea that courts must choose between First Amendment protection for editorial discretion and Section 230 protection from liability tied to third-party content.
This story draws on original reporting from Ars Technica.
