AUSTIN – A group of plaintiffs have sued Texas Attorney General Ken Paxton, seeking an injunction to prevent enacting the Securing Children Online through Parental Empowerment (SCOPE) Act – which the plaintiffs say violates the First Amendment to the U.S. Constitution by childproofing the Internet, through blocking constitutionally-protected content made by and for adults.
Students Engaged in Advancing Texas, M.F., by and through next friend Vanessa Fernandez, Ampersand Group LLC, and Brandon Closson filed suit in the U.S. District Court for the Western District of Texas on Aug. 16 versus Paxton (in his official capacity).
“Texas has jumped on a misguided bandwagon of recent efforts to childproof the internet by passing the SCOPE Act. The Act subjects all Texans – not just minors – to age registration as a condition of access to digital services. It requires online services to monitor their content, and depending on a service’s mix, requires even more intrusive and imperfect age-verification screenings as a condition to engage in protected speech, violating established law. And the Act goes even further, seeking to compel online intermediaries to block minors from accessing, sharing or discussing a broad and vaguely defined range of protected subject matter based on the government’s conclusion that certain ideas are too dangerous, ignoring the fact that the state lacks any ‘free-floating power to restrict the ideas to which children may be exposed,” the suit says.
“Plaintiffs are Texans and Texas-based organizations whose abilities to communicate and access information will be restricted by the Act. They include a student-run organization that promotes youth engagement in policymaking, an online content creator focusing on mental health, a company that produces social-good advertising directed toward minors, and a high-school student who uses social media to obtain news and information, build community, and listen to and share music. They bring this action to avert the deprivation of their most basic constitutional rights.”
Starting Sept. 1, 2024, the SCOPE Act would pressure websites to collect adult Texans’ government IDs or biometric data to check if they are 18 or older before they can view lawful content online – and the plaintiffs argue that anyone without a government ID or who doesn’t want to show their papers to access certain websites, will effectively be banned from viewing constitutionally-protected content.
The Texas Attorney General’s Office has stated that “a violation of the SCOPE Act is a deceptive trade practice, enforceable only by the Consumer Protection Division of the Office of the Attorney General of Texas, which may seek injunctive relief, civil penalties of up to $ 10,000 per violation and attorneys’ fees.”
The Office clarified that the Act “does not confer a private right of action, but allows parents and guardians of known minors to file suit to obtain a declaratory judgment against a digital service provider” and “a court may not certify a case brought under the Act as a class action.”
The plaintiffs add, in their view, the SCOPE Act isn’t actually making anyone safer – but rather, it would only make it harder for young people to find help when battling mental illness or sexual abuse.
“For example, plaintiff Brandon Closson is a software engineer who shares his stories and strategies for coping with bipolar disorder, but the SCOPE Act would prevent his younger followers with similar mental health challenges from seeing his helpful information. Another plaintiff, M.F., is a rising high school junior who is concerned that he’d be blocked from websites that could help him prepare for a school debate on legalizing marijuana,” per a statement from the Foundation for Individual Rights and Expression, whose attorneys are providing partial plaintiff counsel in the case.
“And yet another, plaintiff The Ampersand Group, runs ad campaigns on gun-violence prevention, public health, sex-trafficking awareness and other issues. The SCOPE Act would hinder the Group’s ability to target young people who might benefit from that advocacy the most.”
The plaintiffs further stated that burdening adults who want to view online content that is fully legal for adults violates the First Amendment and emphasized that courts have already enjoined similar measures in California, Arkansas, Ohio, Mississippi and Indiana.
The Foundation for Individual Rights and Expression is also challenging similar legislation in Utah, but said that the SCOPE Act “combines all the worst aspects of these bills.”
“It has Utah’s age restrictions, the age-appropriate design problems of California, the same ‘harmful to minors’ standard from the earlier Texas law – it’s the Frankenstein’s monster of internet speech control,” FIRE’s statement continued.
The Southeast Texas Record contacted the Texas Attorney General’s Office asking for comment on the suit, but the inquiry was not returned.
The plaintiffs are seeking the SCOPE Act to be declared unconstitutional, an injunction to prevent enforcement of the Act, judgment in their favor, costs, attorneys’ fees and all other relief as the Court deems just and proper.
The plaintiffs are represented by Adam S. Sieff, Ambika Kumar, Caesar D. Kalinowski IV, David M. Gossett, Chelsea T. Kelly and Marietta Catsambas of Davis Wright Tremaine in Los Angeles, Calif., Seattle, Wash. and Washington, D.C., respectively, plus Robert Corn-Revere, David Rubin and J.T. Morris of the Foundation for Individual Rights and Expression, all in Washington, D.C.
The defendant is represented by Todd A. Dickerson of the Texas Attorney General’s Office, in Austin.
U.S. District Court for the Western District of Texas case 1:24-cv-00945
From the Southeast Texas Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com