Report from MediaPost
In Brief – A three-judge panel of US Fifth Circuit Court of Appeals has overturned a district court decision siding with NetChoice, a digital company trade group, that imposed a temporary injunction blocking a Mississippi law requiring “digital services” providers to verify all users’ ages and prohibit minors from creating social media accounts without parental permission. The panel ruled that Judge Halil Ozerden failed to appropriately carry out the level of review called for by the US Supreme Court in its Moody v NetChoice decision related to “facial challenges” of digital platform regulations. The panel said that the judge needed to determine all the platforms and services governed by the law and assess how many of the law’s applications violate the First Amendment, how many applications are legitimate, and grant the injunction if the law’s unconstitutional applications “substantially outweigh” its constitutional ones. In this case, they said that Ozerden needed to go back and consider “whether the Act applies to [digital service providers] like Uber, Google Maps, DraftKings, Microsoft Teams, Reddit, Pinterest, or X.”
Context – Twice in recent weeks, federal courts have sided with NetChoice and granted permanent injunctions blocking state laws in Ohio and Arkansas regulating social media platforms. The trend is unquestionably running against states attempting to shield teens from ills on social media. But the Fifth Circuit panel ruling is not the first time that judges have used the somewhat circular Moody decision to avoid speaking clearly about the First Amendment and social media. In Moody, a majority of the High Court said clearly that the operations of traditional social media platforms are clearly expressive activity protected by First Amendment, but much of the decision focused on the proper consideration of “facial challenges” to such laws at the injunction stage. Although no one, including at the High Court, has yet explained how applying laws intended to regulate social media to electronic payments platforms or ridesharing platforms might be First Amendment-friendly, nor whether that would change the implications for unconstitutional impacts on social media platforms.