A federal judge Blocked a Mississippi law a measure that would have required age verification for everyone and parental consent for teenagers to create accounts on many social media sites is due to go into effect.
The injunction came on the same day the Supreme Court issued a ruling in a pair of cases challenging social media laws in Florida and Texas that sought to regulate social media companies’ content moderation. The Supreme Court sent the cases back to lower courts but made clear that platforms’ moderation and content curation were protected by free speech.
The challenge to Mississippi House Bill 1126 was brought by NetChoice, the industry group that represents Meta and Google and was also a lead party in the Supreme Court cases. The law was set to take effect Monday and was designed to protect children from explicit sexual content. It required online services with content channels or chat rooms (likely including platforms like facebook or YouTube) to verify users’ ages through “commercially reasonable efforts” and obtain parental consent for minors to create accounts. Platforms that failed to comply would open themselves up to legal action from parents.
NetChoice argued that the law would interfere with the rights of adults and minors to access free speech online. Mississippi’s attorney general argued that the law only regulates “non-expressive conduct,” but U.S. District Court Judge Halil Suleyman Ozerden noted in the order that he was not convinced that was the case.
The court accepted the attorney general’s claim that “safeguarding the physical and psychological well-being of minors online is a compelling interest,” but agreed with NetChoice that the legislation was not “narrowly tailored” to serve those goals. The court said the attorney general failed to show that NetChoice’s suggested alternatives to the law to protect children’s well-being (such as giving parents more information about how to supervise their children online) were insufficient. Requiring children and adults to verify their age to access free speech, the judge wrote, “presumes the rights of adults under the First Amendment, and that alone makes it too inclusive.”
“We appreciate the court’s careful and prompt review of this matter, but we respectfully disagree that the Constitution blocks the state’s effort to protect children online,” Mississippi Attorney General Lynn Fitch said in a statement. “We will continue to fight for this commonsense law because the mental health, physical safety, and innocence of our children should not take a backseat to the profits of Big tech.”
Chris Marchese, Director of NetChoice Litigation Center said in a statement The group said it was “satisfied” with the decision and “look forward to seeing the law permanently repealed.”
NetChoice has successfully had judges across the country block laws that are stated to protect children online but which the group says would actually violate the First Amendment by impeding free speech. See: California, Arkansasand Ohio.
NetChoice's latest victory, combined with the Supreme Court's statement in its majority opinion in Moody's vs. NetChoice and NetChoice vs. Paxton The fact that content moderation and curation are protected speech under the First Amendment is a warning sign for legislatures across the country crafting technology regulations. The Supreme Court left open the possibility that tech laws could be crafted in ways that don’t violate the First Amendment, but the guidelines it sets for what is likely to violate the Constitution could make that a tricky path to follow.
“The Supreme Court does not overlook the gravity of the issue the legislature was attempting to address, nor does it doubt the good intentions behind the enactment of HB 1126,” Ozerden wrote in his order. “But as the Supreme Court has held, ‘(a) law whose content is based on its face is subject to strict scrutiny regardless of the government’s benign motive.’”
