Report from Bloomberg
In Brief – A divided Sixth Circuit Court of Appeals panel has ordered a federal judge to reconsider his initial ruling not to preliminarily block a Tennessee law requiring parental consent for minors to use social media. Judge Alice Batchelder, joined by Judge Kevin Ritz, said that, assuming tech trade group NetChoice’s First Amendment claims are ultimately valid, it had shown sufficient irreparable harm to satisfy the threshold requirement for a preliminary injunction, and that the district court must now reconsider the remaining factors governing whether an injunction is warranted. Judge Eric Clay dissented, arguing that NetChoice failed to show an imminent threat of enforcement against any specific member.
Context – The ruling on Tennessee’s social media law came just days after Meta settled a lawsuit by 48 state attorneys general by paying more the $12 billion and agreeing to make a range of changes to their biggest platforms. Tennessee was one of several states that enacted similar laws. Most were initially blocked by federal judges for violating the First Amendment, but that trend began to waver as some appeals courts, starting with a Fifth Circuit panel that upheld a Mississippi law last year, began waving away court precedents on the First Amendment rights of teens. The latest Sixth Circuit ruling highlighted the judicial confusion as the same three judges upheld a very similar Ohio law earlier this year, something the dissenting judge pointed out. If the other major social media platforms agree to make the same platform changes as Meta, and we think they will, the biggest impact of the settlement will be to have the platforms make changes and verify user ages without the First Amendment headaches inherent in government telling huge speech platforms how to operate. A Supreme Court showdown had seemed a near certainty, but if the largest platforms all “voluntarily” make the changes, the High Court might put off taking up the cases because enforcement is not actually happening. Next up for the platforms will be to convince other national regulators, and especially the European Commission, to agree that the same set of changes is enough.