A federal appeals court has upheld most provisions of a 2024 law aimed at protecting children from harmful and obscene material online. This reverses a lower court ruling that had blocked these provisions.
Under the SCOPE Act—Securing Children Online Through Parental Empowerment—digital service providers (DSPs) must register the age of users, prevent harm, create parental control tools, and aim to prevent advertisers from promoting adults-only services to minors.
The law also requires digital service providers that publish content, where over one-third of it is considered harmful, to employ an age verification method for all users.
Background
On June 13, 2023, Gov. Greg Abbottt signed the SCOPE Act into law.
Two separate pre-enforcement lawsuits arose, seeking preliminary injunctions to block the law before it was set to take effect on September 1, 2024.
The first—filed by the nonprofit organizations Computer & Communications Industry Association (CCIA) and NetChoice—challenged all of SCOPE as a content-based law. Specifically, the suit highlighted the law’s requirement that certain DSPs monitor and filter content accessible to minors to prevent exposure to several categories of potentially harmful speech.
The second—filed by the nonprofit group Students Engaged in Advancing Texas (SEAT), two individual Texans, and the advertising firm The Ampersand Group—also challenged SCOPE’s requirement for certain DSPs to conduct age verification, to not display targeted advertisements to known minors, and to prevent advertisers from targeting known minors with unlawful products.
On August 30, 2024, U.S. District Judge Robert Pitman granted the preliminary injunctions—blocking all of SCOPE’s challenged provisions except for the mandate that DSPs require users to register their age when creating accounts.
Attorney General Ken Paxton appealed the preliminary injunction orders to the U.S. Fifth Circuit Court of Appeals in New Orleans. The court consolidated the cases for appeal.
The Ruling
Last week, the Fifth Circuit largely reversed the injunction in a 2-1 decision—allowing the vast majority of the SCOPE ACT to take effect for the first time.
“We hold that the SEAT plaintiffs do not have standing to challenge the monitoring and filtering, targeted ads, and unlawful ads requirements, and that their challenge to the age-verification requirement is now foreclosed by precedent,” wrote Judge Dana Douglas.
However, Judges Patrick Higginbotham and Douglas concluded that the monitoring and filtering requirement challenged by the CCIA plaintiffs “is preempted by Section 230 of the Communications Decency Act of 1996.”
Section 230 requires that “[n]o interactive computer service shall be treated as the publisher or speaker of any information provided by someone else.”
“Consistent with other courts of appeal, we have interpreted Section 230 to provide DSPs with ‘broad immunity’ from ‘all claims stemming from their publication of information created by third parties,’” wrote Judge Douglas.
Judge James Ho—who dissented in part from the majority ruling—came to a different conclusion on section 230.
“The SCOPE Act isn’t preempted by section 230 for one simple reason: Because it regulates curation, not publication—first-party speech, not third-party speech,” wrote Ho. “So I would vacate the injunction in its entirety.”
Nonetheless, the injunction against the SCOPE Act has only been partially vacated—meaning those provisions of the law may take effect while the case is remanded to the district court to proceed on the merits.
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