5th Circuit Court Vacates Injunction on Miss. Age-Verification Law
The 5th U.S. Circuit Court of Appeals on Thursday vacated a preliminary injunction against Mississippi’s age-verification law and remanded the case to the U.S. District Court for Southern Mississippi, citing the recent ruling in Moody v. NetChoice, LLC that “reframed the analysis for facial challenges.” The 5th Circuit said that the district court in the Mississippi case “should have undertaken more detailed factual analysis” before finding that trade association NetChoice was likely to succeed on its merits.
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“Moody clarified that to determine whether a substantial number of a law’s applications are constitutional relative to a statute’s plainly legitimate sweep requires a two-step analysis,” the court said. “The first step is to define the law’s scope” and “the second step is ‘to decide which of the law[’s] applications violate the First Amendment, and to measure them against the rest.’”
Given that the U.S. Supreme Court released its Moody decision on the same day the district court issued its memorandum opinion and order, there’s no way the court could have applied the proper analysis, the 5th Circuit said. Accordingly, “a factual inquiry remains for the district court to resolve,” but “as the district court understandably did not conduct this analysis, its finding that NetChoice showed a substantial likelihood of success on the merits of its claim that the Act is facially unconstitutional under the First Amendment cannot now stand.”
In an emailed statement to Privacy Daily, the AG’s office said, “We are pleased with the court’s thoughtful consideration and with this outstanding result for Mississippi families.” It added, “We look forward to further presenting this case at the district court.”
However, NetChoice vowed it will continue its challenge. “NetChoice is disappointed in this ruling from the Fifth Circuit, and we will be considering all available options going forward,” said Paul Taske, NetChoice’s associate director of litigation, in a press release following the ruling. “NetChoice will continue to fiercely defend free expression and free enterprise online, and remain confident the law will not stand.”
The decision comes after district courts in Arkansas and Ohio have enjoined age-verification laws on First Amendment grounds. Earlier in April, the U.S. District Court for Western Arkansas permanently enjoined the state’s 2023 social media safety act, a law that requires social media users verify their age, as they must be 18 or older in order to access platforms without parental consent. NetChoice had sued the AG in NetChoice v. Griffin, alleging violations of the First Amendment and Commerce Clause, and claiming that the federal Child Online Privacy Protection Act preempted the state law (see 2504010044).
The U.S. District Court for the Southern District of Ohio blocked Ohio’s age-verification law on First Amendment grounds on Wednesday (see 2504160049), after oral argument last month in NetChoice v. Yost (see 2503130036). Case 24-00047 revolved around NetChoice’s challenge of an Ohio age-verification law that requires websites targeting children younger than 18 to obtain parental consent before engaging in contracts with minors, among other things.
On Friday, Tennessee Attorney General Jonathan Skrmetti (R) used the 5th Circuit's decision as a reason for the U.S. District Court for Middle Tennessee to not grant a preliminary injunction on a law that requires age verification before accessing social media accounts in case 24-01191.
NetChoice "has called Mississippi’s law 'similar' to Tennessee’s and repeatedly cited the preliminary injunction it won against Mississippi as support for similar relief here," he said. "Tennessee has been making the same argument [as the 5th Circuit] since the beginning of this case... Netchoice has not remotely provided the evidence that Moody demands. [The trade association] must meet that standard for facial challenges, since associations like NetChoice lack standing to bring as-applied claims."
The 5th Circuit Mississippi case began when NetChoice sued Mississippi Attorney General Lynn Fitch (R) over HB-1126, alleging that it violates the First Amendment and that its age-verification requirement poses privacy problems (see 2501310041). On Feb. 4, the 5th Circuit heard oral arguments in case 24-60341, which had been appealed from the district court's case 24-00170 (see 2502050031).