The full Fifth Circuit has decided to rehear the challenges to Texas’s “online age verification” law, known as the SCOPE Act.
This means that the July 24 ruling of a panel of the same court, which kept some parts of the law blocked, is now vacated – and a new hearing will be held “on a date hereafter to be fixed.”
The law, that came into force on September 1, 2024, was challenged by tech trade groups CCIA and NetChoice, as well as a student group called SEAT. But the law’s requirement that every user’s age be registered before an account is opened was never blocked, and has stood throughout the litigation.
This means that while the court battles have been ongoing, platforms have been forced to implement age registration, and “known minors” are treated differently, in that they must provide parental consent, are not served targeted ads, and there are limits on the data that can be collected from them.
The law also orders platforms to come up with a strategy to keep minors away from content “that promotes, glorifies, or facilitates” suicide, self-harm, eating disorders, substance abuse, bullying, and more. This is a state-mandated filtering duty, and in July, a three-judge panel at the Fifth Circuit kept it blocked, saying it treated platforms “as publishers subject to sweeping state controls” and was “squarely preempted by Section 230.”
Another provision of the law that was blocked was the one that forces platforms to check every user’s age, if the site features more than a third “harmful material or obscene” content – and allow only those over 18 to access it. But the July ruling lifted the block on this, saying the challenge to it was “foreclosed” by the Supreme Court’s ruling in Free Speech Coalition v. Paxton, which concerned a porn site.
A minor, 16-year-old M.F., who is one of the plaintiffs, said in his filing that he “uses social media to learn about current events and opportunities, follow the news, discover music, and conduct research for his debate team and other school activities.”
The full Fifth Circuit’s decision to rehear the case is important because Judge James Ho, who was on the July panel, wanted the block on the law’s “filtering” provision lifted as well. According to him, the law “protects children from the dangers of social media” and its curating of content is the platform’s own speech, and therefore not protected by Section 230 – the part of the Communications Decency Act that allows platforms not to be held liable for third party content.
If the full court agrees with Ho, Texas will be able to enforce the filtering provision as well. And although the July ruling was seen as a win by NetChoice’s Paul Taske, who said at the time it was “a win for every Texan who believes the government has no business deciding what they can read, watch, and say online,” it was a partial one.
The order for the rehearing does not say who asked for it, but the next step will be the submission of supplemental briefs. Oral argument will then be held on a date that has not been set yet.
As for the law, it is part of a broader effort by Texas to usher in online age verification, and Reclaim The Net has been following the developments. In July, Attorney General Ken Paxton used the SCOPE Act to force Discord to turn on age verification for all its users in the state.
Previously, the Fifth Circuit allowed Texas to enforce its app store age verification law, SB 2420, and the Supreme Court declined to step in. Texas has also sued OpenAI with the goal of forcing the company to introduce age verification for users of ChatGPT.
The most dangerous parts of the SCOPE Act are not the ones that were blocked by the July ruling – namely, the obligation to verify age and allow the state to sue platforms into verifying the age of all users – these have been in force all along.
The same goes for the rule requiring ID checks on porn sites. What the July ruling blocked was the part of the law that had the state write a filtering mandate for platforms – and that’s the part the full Fifth Circuit has now decided to rehear.
In other words, the only part of the law that had any chance of being stopped is now back in play, and Texans should expect the state to continue to push until it succeeds in having every single account in the state tied to a verified age.
