5th Circuit blocks Texas law requiring websites to filter "harmful" speech - Ars Technica
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Texas cannot enforce a law’s requirement that websites block minors from seeing harmful speech, the US Court of Appeals for the 5th Circuit ruled on Friday.
Big Tech lobby groups challenged the Texas “law’s requirement that certain social media-based ‘digital service providers’ (DSPs) monitor and filter content accessible to known minors to prevent exposure to several categories of potentially harmful speech,” judges wrote. In a 2-1 ruling in favor of the tech groups’ challenge, judges said the monitoring and filtering requirement is preempted by Section 230 of the federal Communications Decency Act of 1996.
The Computer & Communications Industry Association (CCIA) and NetChoice challenged portions of the Securing Children Online through Parental Empowerment Act (SCOPE Act), which applies to websites and online applications that collect or process personally identifying information. The tech groups won a preliminary injunction from a district court. Texas Attorney General Ken Paxton appealed to the 5th Circuit but wasn’t able to convince judges to reverse the injunction that prevents enforcement of the monitoring and filtering rules.
The district court held in August 2024 that the SCOPE Act’s monitoring and filtering requirement is preempted by Section 230’s prohibition on treating interactive computer services as the publisher or speaker of information provided by someone else. “CCIA and NetChoice have shown a likelihood of success on the merits of their preemption claim, which is enough to support the district court’s granting of a preliminary injunction in their favor,” the 5th Circuit panel wrote.
The law “would have forced websites to censor broad, vaguely defined categories of lawful speech,” NetChoice said. “The 5th Circuit is right to keep it blocked. Parents, not the government, are best positioned to decide what is appropriate for their own families, and today’s ruling protects that fundamental right.”
Filtering mandate went too far
The famously conservative 5th Circuit appeals court has upheld several Texas laws imposing obligations on websites and online platforms. That includes a 2024 case in which it upheld an age-verification requirement imposed on porn websites.
In Friday’s ruling, judges noted the difference between the age-verification requirement in the porn website case and the content-filtering rule in the new case. “Unlike the age-verification requirement we addressed in that case, [the SCOPE Act’s] monitoring and filtering requirement is all about filtering content, and is thus preempted,” they found.
The 5th Circuit and other appeals courts “have interpreted Section 230 to provide DSPs with ‘broad immunity’ from ‘all claims stemming from their publication of information created by third parties,’” the 5th Circuit panel said. The state law required websites to prevent known minors’ exposure to material defined as obscene under Texas law, and other content “that promotes, glorifies, or facilitates” suicide, self-harm, eating disorders, substance abuse, stalking, bullying, harassment, grooming, trafficking, and “child pornography, or other sexual exploitation or abuse.”
Paxton argued that the Texas law imposes no liability for harms from the content they host. The law is not preempted because it “imposes compliance duties, not publisher liability,” and aligns with the child-protection goals of Section 230, he argued.
Other parts of law can be enforced
5th Circuit judges didn’t buy Paxton’s argument. They said the law provides for enforcement against violations by the attorney general’s office and lets parents of minors bring actions for declaratory judgments and injunctions.
“Actions to enforce the monitoring and filtering requirement are claims stemming from DSPs’ actions as publishers, that is, from their monitoring, screening, and deletion of content, and are thus squarely preempted by Section 230,” the ruling said.
Friday’s decision wasn’t a total loss for Paxton because the 5th Circuit found that a student group did not have standing to challenge the Texas law, which means other parts of the law can be enforced. These require platforms to make users register their ages before creating accounts, to not display targeted advertisements to known minors, to make commercially reasonable efforts to prevent advertisers from targeting known minors with ads for illegal products or activities, and to verify that users are 18 or older if more than...