The US Court of Appeals for the Sixth Circuit has sent a case challenging Tennessee’s age verification law back to a lower instance, the US District Court for the Middle District of Tennessee, for further consideration.
We obtained a copy of the opinion for you here.
The law, Protecting Children from Social Media Act conditions access to social-media accounts, and by extension online speech, on age verification, and in the case of minors, on parental approval.
Digital rights group NetChoice, which represents the biggest online industry players, had asked the district court for a preliminary injunction against the law, arguing that it violates the First Amendment.
The district court refused the injunction, and NetChoice appealed. The appellate court has now vacated that ruling and remanded the case for further consideration, but did not itself grant a final injunction, nor did it rule on whether the law is ultimately constitutional.
NetChoice said that the law is unconstitutional because it restricts online speech and association, and that it places an undue burden on companies to verify the age of users and, in the case of minors, obtain parental consent.
The law requires social media companies to verify the age of a prospective account holder, and if that person is a minor, verify parental consent, which can be revoked. The company is not allowed to let a minor create an account without such consent, and is not allowed to retain personal information used to verify age or consent.
In its decision, the Sixth Circuit recognized that a threat of enforcement can chill First Amendment rights, and that companies can suffer irreparable harm from incurring compliance costs while challenging a law as unconstitutional – and then being unable to recover those costs.
The district court had ruled that NetChoice failed to demonstrate an “imminent threat of irreparable harm” because the state had not yet enforced the law against its members.
A dissenting judge, however, argued that NetChoice did not demonstrate irreparable harm, and that the threat of enforcement remained speculative since the state’s attorney general had not yet enforced the law.
