AUSTIN – A federal judge has granted an injunction against “monitoring and filtering” provisions of a Texas state law intended to regulate the content of social media, but denied an injunction against each of the law’s other sections, finding they did not unconstitutionally regulate a meaningful amount of constitutionally protected speech or otherwise fail strict scrutiny.
On Aug. 30, U.S. District Court for the Western District of Texas Judge Robert Pitman handed down such a decree, in litigation brought by nonprofit groups, the Computer & Communications Industry Association, and NetChoice, LLC, against Texas Attorney General Ken Paxton.
The case concerns Texas House Bill 18, a piece of legislation seeking to impose age registration and verification requirements on users of social media platforms, such as Facebook, Instagram, X, TikTok, Snapchat, YouTube, Reddit and Pinterest.
HB 18 would also impose “monitoring-and-filtering” requirements, prohibiting minors from viewing content “that promotes, glorifies, or facilitates” the following categories: “suicide, self-harm, or eating disorders”; “substance abuse”; “stalking, bullying, or harassment”; “grooming, trafficking, child pornography, or other sexual exploitation or abuse”; and “material that qualifies as obscenity for minors under Texas Penal Code Section 43.24.”
The plaintiffs brought suit on July 30, seeking an injunction to prevent the law from going into effect, arguing that it “violates the First Amendment because it is a content-based law that does not survive strict scrutiny” and is pre-empted under Section 230 of the Communications Decency Act.
In response, Paxton argues that the plaintiffs’ claim is barred by sovereign immunity, the plaintiffs lack standing to bring suit, the law is severable and that it was not pre-empted under Section 230 of the Communications Decency Act.
“Even if HB 18 is a content-based regulation, it does not follow as a matter of course that the law is facially invalid. In the First Amendment context, facial challenges can only succeed if litigants show that ‘a substantial number of [the law’s] applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.’ So a law regulating First Amendment activity may only be struck down in its entirety if its ‘unconstitutional applications substantially outweigh its constitutional ones…it is a mistake to treat HB 18 as a whole and assume that because the law draws a threshold content-based distinction, it fails entirely under strict scrutiny,” Pitman stated.
Pitman found that of each of the law’s tenets, only the “monitoring-and-filtering” requirements fail strict scrutiny, are unconstitutionally vague and are pre-empted by Section 230 – thus rendering them ripe for an injunction.
“The monitoring-and-filtering requirements explicitly identify discrete categories of speech and single them out to be filtered and blocked. That is as content based as it gets. It is far from clear that Texas has a compelling interest in preventing minors’ access to every single category of information listed above. Some interests are obvious – no reasonable person could dispute that the state has a compelling interest in preventing minors from accessing information that facilitates child pornography or sexual abuse. On the other end, many interests are not compelling, such as regulating content that might advocate for the deregulation of drugs (potentially “promoting substance abuse”) or defending the morality of physician-assisted suicide (likely “promoting suicide”),” Pitman said.
“The Supreme Court has repeatedly emphasized that ‘speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.’ Much of the regulated topics are simply too vague to even tell if it is compelling. Terms like ‘promoting,’ ‘glorifying,’ ‘substance abuse,’ ‘harassment,’ and ‘grooming’ are undefined, despite their potential wide breadth and politically charged nature. While these regulations may have some compelling applications, the categories are so exceedingly overbroad that such a showing is unlikely. Even accepting that Texas has a compelling interest in blocking select categories under HB 18, the law is not narrowly tailored.”
Pitman specified that by requiring “monitoring-and-filtering” under the law, but “not providing reference to what must be filtered, HB 18 will likely filter out far more material than needed to achieve Texas’s goal.”
“Because the monitoring-and-filtering requirements are overbroad, overly restrictive and under-inclusive, they are properly enjoined on their face,” Pitman said.
The plaintiffs are represented by Joshua Paul Morrow, Scott A. Keller, Jared B. Magnuson, Steven P. Lehotsky and Jeremy Evan Maltz of Lehotsky Keller Cohn, in Austin, Atlanta, Ga. and 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-00849
From the Southeast Texas Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com