Report from MediaPost
In Brief – NetChoice, a digital company trade group that has had significant success challenging state laws regulating social media, has again asked a federal judge to block a Mississippi law requiring that digital services verify users’ ages and obtain parental consent for minors to have social media accounts. NetChoice argues that the law infringes on the First Amendment by restricting both adults’ and minors’ access to constitutionally protected speech. District Judge Haili Ozerden heard Netchoice’s original motion to block the law and granted an injunction based on his view that they would likely succeed in showing it violated the First Amendment. However, a panel of the 5th Circuit Court of Appeals vacated that order, ruling that Ozerden had not carried 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, which included determining all the types of platforms and services governed by the law and assessing how many of the law’s applications violate the First Amendment and how many might be acceptable.
Context – Federal courts have sided with NetChoice in recent weeks and granted permanent injunctions blocking similar state laws in Ohio and Arkansas. 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 High Court justices said that the operations of traditional social media platforms are 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. And 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 clearly unconstitutional impacts on social media.