Report from the >New York Times
In Brief – The Supreme Court denied an emergency request by digital company trade group NetChoice to halt a Mississippi law that requires social media platforms to verify all users’ ages, prohibits minors from creating social media accounts without parental permission, and requires the platforms to protect minors from a range of “harmful material”. The law was twice blocked by a federal district judge and in each case a panel of the Fifth Circuit Court of Appeals overturned the decision.
Context – It’s hard to undersell the impact of this High Court procedural decision, both on the creation of internet policy speculation and the prospect for drastically more state internet laws being enacted that violate court precedents. The First Amendment is the main bulwark standing in the way of online regulation in the US, including the imposition of age limits and age verification mandates that are spreading across major markets. Five justices are needed to grant an emergency order. “Shadow” docket decisions normally do not include an explanation from the majority. So, tea leaf reading now moves to the fore like we haven’t had since cert was granted in Gonzalez v Google. In his concurrence, Justice Kavanaugh helpfully gives a concise summary of why all the similar state laws have been blocked, and why he suspects this one will be as well. There are major precedents on the free speech rights of minors. However, the use of the shadow docket and standards around granting temporary injunctions are both increasingly controversial. And these justices have been squirrely on internet cases, generally avoiding policy decisiveness. At PEI, we think there are likely three other justices holding views like Kavanaugh, including Justice Kagan who has been very critical of overuse of the shadow docket. Thomas and Alito are rightly considered the most interested in rewriting the legal regime around online speech and social media. Justice Jackson sounded very skeptical about online platforms in Gonzalez v Google, Justice Barrett sounded skeptical that market or user-based remedies could protect young people in the recent online pornography case, and Justice Gorsuch is often a wildcard.