Miss. AG Calls Age-Verification Law 'Commercially Reasonable,' Asks SCOTUS to Let It Stand
Mississippi's attorney general asked the U.S. Supreme Court Wednesday to let stand a state law that requires parental consent for those younger than 18 to create accounts with certain digital service providers. AG Lynn Fitch (R) argued that the 5th U.S. Circuit Court of Appeals, which on July 17 allowed the previously-enjoined law to go into effect with a stay on a lower court's injunction, had "compelling, independent merits grounds for issuing the stay."
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However, on Thursday, tech trade group NetChoice called the stay “unreasoned” and said Fitch’s inability to explain the appeals court decision meant the injunction should be reinstated. Additionally, the trade association cited nearly 30 groups that filed amicus briefs supporting NetChoice's position at the Supreme Court.
Though the 5th Circuit gave no explanation of its decision, Fitch cited the Supreme Court ruling in Free Speech Coalition v. Paxton, which “rejected a First Amendment challenge to a law requiring pornographic websites to verify visitors’ ages,” as part of her reasoning for letting the 5th Circuit stay stand (see 2506270041).
She also said that "the Act requires what any responsible covered platform would already do: make 'commercially reasonable' efforts to protect minors -- not perfect or cost-prohibitive efforts, but efforts of reasonable care based on a platform’s resources." NetChoice is "a trade group that represents tech giants," Fitch reminded the court.
“NetChoice’s claims are without basis,” and the trade association has “urged the district court to defy the Fifth Circuit’s mandate,” Fitch added. “Equity should not condone that tactic. This Court should not either.”
NetChoice disagreed in its reply brief. Though Fitch “offers two unavailing arguments why the Fifth Circuit might have stayed the injunction,” both fail, NetChoice said. “First, the district court’s injunction resolving NetChoice’s as-applied First Amendment challenges did not violate the Fifth Circuit’s Fitch mandate addressing NetChoice’s distinct facial challenge,” and “second, [Fitch]’s arguments fail on the merits.”
“This Act’s content-based parental-consent, age-verification, and monitoring-and-censorship provisions violate this Court’s precedent, both old and new,” the trade association added.
The eight briefs that some 30 amici submitted in case 25-60348 supported NetChoice's call for the Supreme Court to block the Mississippi law. First to file, nonprofit think tank TechFreedom alleged on July 24 that the 5th Circuit used a “grave misapplication of this Court’s precedents” to stay the law.
“TechFreedom opposes government interference with online speech,” so it “opposes laws that mandate online age verification,” the brief said. “Online age-verification laws sacrifice privacy, free speech, and parental authority on the altar of good intentions.” In another brief, the Taxpayers Protection Alliance also argued for less government interference.
Meanwhile, a coalition of groups including the LGBT Technology Institute, the Trevor Project and Hacking the Workforce focused on the intersection of unnecessary government intrusion on relationships and online communities. “Going back to Griswold v. Connecticut in 1965 and Eisenstadt v. Baird in 1972, this Court has recognized the privacy rights of individuals to be free from unwarranted government intrusion into their personal, intimate relationships,” the groups said. “The same should hold true for First Amendment rights -- there is no reason to find that they cease to apply, or that they can be carved back to any degree."
The Center for Individual Rights, a public interest law firm, also alleged the Mississippi law influences privacy rights through its age-verification requirements and burdens First Amendment rights. “The Act will seriously chill speech and access to speech by both minors and adults on social media websites,” it said. "For both groups, the risks posed by required disclosure of personally identifiable information will likely curb their willingness to speak freely online or to access speech posted by others.”
A coalition of tech industry groups -- including TechNet, Computer & Communications Industry Association and Software & Information Industry Association -- and a separate coalition of publishers and booksellers, also opposed the Mississippi law on First Amendment grounds. So did a coalition of advocacy organizations led by the Foundation for Individual Rights in Expression (see 2507250044).
Even a nonprofit called Stop Child Predators opposed the kids online safety law. The group said it "would be among the first to support an effective bill making Mississippi’s children safer," but HB-1126 "regardless of the intentions with which it was enacted -- will not further that end."
The U.S. District Court for Southern Mississippi has twice enjoined HB-1126 for being too broad to survive a First Amendment challenge (see 2507010062 and 2506180051), but Fitch appealed the ruling in late June (see 250620009).
The 5th Circuit granted a stay of the statute without explanation in a one-page, 13-word order on July 17 (see 250710019), which caused NetChoice to file an emergency application to the Supreme Court asking it to reinstate the preliminary injunction (see 2507210072).