5th Circuit Judges Appear Split on NetChoice Challenge of Miss. Age-Verification Law

Judge James Ho appeared to lean toward NetChoice's position, while Judge Patrick Higginbotham seemed to side more with the state; Judge Don Willett’s stance was less clear.

“In your view, what additional factual development is needed” from the court before remanding this case to the district court? asked Willett. Unlike the U.S. Supreme Court case Netchoice v. Paxton “is there any real dispute here, [over] what actors and activities are covered?”

Arguing for Fitch, Mississippi Solicitor General Scott Stewart said yes, there’s a dispute over what each person will have to do to verify their age under these statutes. NetChoice's argument “has been ‘age verification will require people to submit government ID’s,’” which is not true, he said. But NetChoice “has never come forward with evidence showing what people actually have to do to comply -- the how.”

Willett also questioned whether it's possible to have a legal age-verification law. “What would a constitutional, age-gating, parental consent statute look like?” he asked.

NetChoice outside counsel Scott Keller of Lehotsky Keller said that it would depend on the government interest, but he is unsure about creating a valid, tailored law that could age-gate protected speech.

Stewart gave a hypothetical analogy of speech that happens at a bar. “We know that there's certain conduct that occurs in there, presumably the consumption of alcohol,” he said. “There's also a lot of speech that occurs in many bars … Under Mr. Keller's theory of this case, imposing an age verification on a bar would have to face strict scrutiny because it would affect access to speech. I respectfully submit that is ridiculous.”

Keller, however, said that speech on the internet is different. “When there is a communicative content and there is elements of expression, the First Amendment, of course, is triggered,” he said. “And here, when we're talking about engaging in speech on social media websites, we're not talking about physical access to places of congregation and association. What we're talking about is speech among individuals … that are going and posting for many people to see, [and] that is core expressive activity.”

Judge Ho agreed with Keller’s distinction between a bar -- a physical place -- and the expressive content found on the internet. “I think his argument was pretty decent,” said Ho. “He's saying that there are a lot of things that happen in bars. The only thing that happens on the internet is speech.”

The judge also mentioned the idea that a mom posting about her life and allowing comments about it on a blog would not be covered by the Mississippi law; however, the mom posting the same content on Facebook would be covered. “Doesn't it at least show that we should vacate [and] remand?” asked Ho. “You may or may not win or not in the District Court, but this suggests that there are actual disputes notwithstanding the power of remand.”

Higginbotham, on the other hand, seemed to side more with Mississippi. “The Supreme Court said ... that when it comes to minors that it’s a different ball game,” he said, citing the 1968 Ginsburg v. New York case. “They don't enjoy the same level of protection… under the First Amendment,” and this particular provision is not much further than that.

Keller argued this case is different. “What Ginsburg says is, the state does, at a high level of generality, have an interest in protecting minors, but what it does not include is a free-floating power to restrict the ideas to which minors may be exposed,” he said.

Higginbotham said that the Supreme Court justices said in a recent case that advancements in electronics and the internet have exploded in recent years. “The Supreme Court said that we need to reconsider all this,” he said. “The world has changed.”