On June 13, 2023, the State legislature in Texas, U.S. enacted House Bill 18 (HB 18). The law primarily regulates “Digital Service Providers” (DSPs) that allow users to interact with other users, create a profile and allow them to post content. It was enacted to “protect children from harmful, deceptive, or unfair trade practices in connection with the use of certain digital services”.

On August 16, 2024, Students Engaged in Advancing Texas (SEAT) – a coalition of middle-school to college students in Texas; M.F. – a 16-year-old high school student; Ampersand Group – a Texas-based advertising agency; and Brandon Closson a Texas resident, filed a complaint contesting HB 18’s validity. This was one of a series of complaints filed against the legislation. SEAT uses social media to promote youth engagement in policymaking, M.F. relies on social media for news, music, and educational content. Ampersand Group, utilizes social media to publish public service advertisements, and Brandon Closson leverages these platforms to share information about mental health. They argued First Amendment violations.

On August 23, 2024, SEAT and the others filed a motion for a preliminary injunction and sued Ken Paxton, the Attorney General of Texas, in his official capacity.

On August 30, 2024, in a parallel case, Computer & Communications Industry Association v. Paxton, Judge Robert Pitman of the U.S. District Court granted a preliminary injunction against sections 509.053 and 509.056(1) of HB 18, referred to as “monitoring-and-filtering requirements” by the Court. Under these provisions, DSPs are required to develop strategies to prohibit minors’ exposure to content “that promotes, glorifies, or facilitates” “suicide, self-harm, or eating disorders”; “substance abuse”; “stalking, bullying, or harassment”; “grooming, trafficking, child pornography, or other sexual exploitation or abuse.” [p. 5] Under section 509.053(b)(1), DSPs are required to implement strategies like using filtering technology and hash-sharing technology to filter the content. The Court held that these restrictions on speech failed the strict scrutiny test and were unconstitutionally vague. The motion was granted in part because the plaintiffs were unable to demonstrate that the remaining provisions of HB 18 failed strict scrutiny.

“Strict scrutiny” is the highest standard of review under American constitutional law, and requires that, in specific circumstances – including, in this context, when a law restricts speech based on its content or viewpoint – a challenged law is presumed to be unconstitutional.

On September 1, 2024, HB 18 went into effect and came to be known as Securing Children Online Through Parental Empowerment (SCOPE) Act.

Judge Robert Pitman of the US District Court (Western District of Texas, Austin Division) delivered the order. The central issue was whether a preliminary injunction should be granted against HB 18.

SEAT and the others submitted that various provisions of HB 18 (509.001- 002, 509.051, 509.052(2)(D), 509.053, 509.055, 509.056(1), 509.057, and 509.101-103) violate the First Amendment. They submitted that these restrictions require DSPs to monitor, filter, and restrict content accessible to minors on social media platforms: as a result, SEAT would be unable to publish “educational Instagram posts concern[ing] bullying, sexual assault, and suicide”; Closson would be prevented from talking about bipolar and eating disorders; M.F. would be unable to listen to the Fray’s song “How to Save a Life” or R.E.M’s song “Everybody Hurts” due to their references to suicide; and Ampersand would be prevented from reaching minors with information related to sex trafficking and substance abuse. They argued that these provisions impose content-based restrictions and are facially overbroad and that these restrictions constitute unconstitutional prior restraints of speech and would fail strict or immediate scrutiny. SEAT and the others submitted that some of these provisions are unconstitutionally void for vagueness.

Paxton argued that social media severely harms children and that “teens use it [social media] too constantly, that exposure to some types of content may promote suicidality or eating disorders, and that “malicious actors” “target children and adolescents” on social media”. [p. 26] He submitted that strict scrutiny did not apply to HB 18 and argued that these issues were resolved by the Fifth Circuit’s decision in NetChoice, LLC v. Paxton where the Court rejected a similar argument and held that regulations targeting social media did not classify as content-based, since the excluded websites were considered “fundamentally dissimilar mediums”. [p. 19] Paxton argued that the “targeted advertising requirements” in the law regulated commercial speech, making strict scrutiny inapplicable and that HB 18 is neither a prior restraint nor unconstitutionally vague.

The Court examined whether a preliminary injunction should be granted. A preliminary injunction is granted if a plaintiff satisfies four conditions: the likelihood of success on the merits, irreparable harm in the absence of an injunction, balance of equities tipping in the plaintiff’s favour, and that the injunction serves the public interest.

In assessing the first requirement of granting the preliminary injunction, the Court considered the merits of the case and adjudged the level of scrutiny applicable to HB 18. It referred to sections 509.001 (1) and 509.002(b) where HB 18 regulates DSPs that allow users to interact with other users, create profiles, and post content. It noted that the provisions exempt certain websites, such as government and medical websites, and DSPs that provide users with access to news, sports, and commerce.

With reference to its judgment in Computer & Communications Industry Association v. Paxton which held that HB 18’s regulations were content-and-speaker-based, the Court reiterated that all the regulations under HB 18 are subject to strict scrutiny. The Court observed that HB 18 singles out DSPs that host “social” speech while exempting others, such as those primarily providing news, sports, or commerce content. [p. 19] The Court stated that this differential treatment is based on the “function or purpose” of speech and therefore demands strict scrutiny as laid down in Reed v. Town of Gilbert and Barr v. American Association of Political Consultants, Inc. The Court ruled that “when the government favors some speakers over others for their content, the law must be subject to strict scrutiny”. [p. 17]

The Court rejected Paxton’s arguments and stressed that the Fifth Circuit’s prior ruling in NetChoice LLC v Paxton is no longer binding, as it was vacated by the Supreme Court in Moody v. NetChoice, LLC. The Court explained that the Fifth Circuit in NetChoice I held that regulations targeting social media were not content-based because the excluded websites were “fundamentally dissimilar mediums” but that the Supreme Court in Moody rejected this reasoning, finding that curating and editing third-party speech is a protected expressive activity, overturning the Fifth Circuit’s analysis of content-based laws. Relying on this, the Court noted that laws like HB 18 are not targeting “fundamentally dissimilar mediums” but DSPs based on protected judgements. [p. 19] The Court also referred to similar district court rulings, including NetChoice, LLC v. Yost and Net Choice LLC v Fitch that supported its conclusion. In these cases, laws similar to HB 18 (which targeted DSPs hosting “social” speech and excluded other news websites) were challenged.

Accordingly, the Court held that laws like HB 18 discriminate based on the content provided on a platform, not just the platform’s medium. It found that if the primary focus of a site shifts from news to social engagement, it changes from an unregulated to a regulated platform, which indicated that the law imposed content-based restrictions. [p. 20] Additionally, the Court rejected Paxton’s argument that HB 18’s “targeted advertising requirements” only regulate commercial speech. While emphasizing the “ordinary meaning of the text”, the Court found that the statute’s language does not explicitly limit itself to paid advertising or commercial transactions and thus remains subject to strict scrutiny. [p. 21] The Court declined to rewrite the law when Paxton suggested that clarifying language could be easily included.

As strict scrutiny was applied, the Court examined whether “HB 18 is the least restrictive means of achieving a compelling state interest” and if it is invalid on its face. [p. 21] To determine if HB 18 is facially invalid, the Court examined whether unconstitutional applications of the impugned provisions substantially outweighed its constitutional ones. It referred to Moody where a two-step test was laid down on this point: first, assess the scope of the law and question the actors/activities regulated by the law; second, identify applications of the law that violate First Amendment violations and weigh them against the rest. For the analysis, the Court categorised the impugned provisions of HB 18 into three categories: “monitoring and filtering requirements”; “targeted advertising requirements”; and “content monitoring and age verification requirements”.

On the “monitoring and filtering requirements”, sections 509.053 and 509.056(1) of HB 18 lay down “monitoring and filtering requirements” where DSPs must develop strategies to prohibit minors’ exposure to content “that promotes, glorifies, or facilitates” “suicide, self-harm, or eating disorders”; “substance abuse”; “stalking, bullying, or harassment”; “grooming, trafficking, child pornography, or other sexual exploitation or abuse.” [p. 5] Under section 509.053(b)(1), the DSPs are required to implement strategies like using filtering and hash-sharing technology to filter the content. In Computer & Communications Industry Association, this Court had already held that the “monitoring-and-filtering requirements” of HB 18 likely violate the Constitution and so the Court reiterated its prior analysis and held that these provisions are content-based, as they explicitly identify specific categories of speech such as “suicide”, “substance abuse”, “grooming”, and “child pornography”, to be filtered and blocked. The Court noted that while protecting minors from harmful content like “child pornography” or “sexual abuse” is a compelling state interest, regulating content supporting physician-assisted suicide is not. The Court found that many of the terms (“promoting”, “glorifying”, “substance abuse”, “harassment” and “grooming”) are “undefined, despite their potential wide breadth and politically charged nature” and held that these topics are “vague”, “exceedingly overbroad” and “not narrowly tailored” even if the state interest is compelling. [p. 23]

The Court found that the “monitoring and filtering requirements” did not employ the least restrictive means to achieve its goals. It observed that alternative approaches, such as active supervision of parents, could serve the state’s objectives without such broad restrictions. The Court stated that HB 18 imposes sweeping “ex-ante speech restrictions, akin to prior restraints” without clearly defining terms like “promoting” or “glorifying,” which could “filter out far more material than needed to achieve Texas’s goal”. [p. 24] The Court observed that this “threatens to censor social discussions of controversial topics” [p. 24] The Court highlighted that this “prohibits minors from participating in the democratic exchange of views online”. [p. 25] The Court described the “monitoring and filtering requirements” as under-inclusive because they exempt websites that “primarily” produce their own content, even if they are “promoting” “eating disorders” or “facilitating” “self-harm.” [p. 24] It emphasized that “a state cannot pick and choose which categories of protected speech it wishes to block teenagers from discussing online”. [p. 25]

Accordingly, the Court ruled that the “monitoring and filtering requirements” fail strict scrutiny and facial challenge framework as they are “overbroad, overly restrictive, and underinclusive”. [p. 26]

In respect of the “targeted advertising requirements”, sections 509.052 and 509.55 regulate how DSPs can display advertisements to known minors. [p. 6] The Court found that Paxton failed to show a compelling state interest in banning all targeted advertising to minors as, although protecting teen mental health from harmful advertising could be a compelling interest, a blanket ban was unjustified. The Court noted that Paxton admitted the law was “absurd” in prohibiting helpful advertisements, like scholarship opportunities. [p. 27] Therefore, the Court determined that there “targeted advertising requirements” were over-inclusive and lacked narrow tailoring. Simultaneously, the Court deemed these requirements under-inclusive because they allowed teenagers to view similarly targeted advertisements on other platforms or when a parent consented. The Court noted that most of the advertisements restricted under these provisions are protected by the First Amendment, including beneficial advertisements and those on topics the state disfavours. The Court noted that only a small portion of targeted advertisements fell outside the protection of the First Amendment. Therefore, the Court found that the “targeted advertising requirements” fail strict scrutiny and are facially invalid.

Regarding the “content monitoring and age verification requirements”, section 509.057 requires DSPs to track their material, restrict “harmful” or “obscene” material from minors and “use a commercially reasonable age verification method to verify users’ age”. [p. 7] The Court found that Paxton admitted section 509.057 would likely fail for the same reasons as section 509.053(a). It held that Paxton was unable to show a compelling state interest as preventing speech deemed “offensive or inappropriate” by the state is not a compelling interest under the First Amendment. [p. 28] The Court acknowledged Paxton’s arguments related to minors’ mental health and privacy issues but found no evidence that these requirements would effectively address such problems. Citing NetChoice, LLC v. Reyes, the Court noted that an injunction was granted against similar laws due to their failure to prove their effectiveness in improving minors’ mental health or decreasing privacy concerns. The Court noted Paxton’s failure to explain why less restrictive measures would not work or why targeted limitations would fail. The Court found the provisions under-inclusive since they allowed minors to access similar content, for instance sexually oriented content on other unregulated platforms, and over-inclusive for chilling adults’ access to protected speech. Accordingly, the Court held that these requirements are unconstitutional and fail strict scrutiny and were facially invalid as most of the speech restricted under these requirements is protected under the First Amendment, even if the state considered it inappropriate for minors.

The Court examined whether the “monitoring-and-filtering requirements”, “targeted advertising requirements”, and “content monitoring and age- verification requirements” were void for vagueness. It cited McClelland v. Katy which had held that “[a] law is unconstitutionally vague if it (1) fails to provide those targeted by the statute a reasonable opportunity to know what conduct is prohibited, or (2) is so indefinite that it allows arbitrary and discriminatory enforcement.” [p. 30] The Court noted that a stringent vagueness test must be applied if a law interferes with the First Amendment. In the Computer & Communications Industry Association case, this Court had already held that the “monitoring-and-filtering requirements” were void for vagueness and so it reiterated that analysis. The Court found that terms like “promote,” “glorify,” and “facilitate” are “broad and undefined” making it susceptible to arbitrary interpretation. [p. 31] The Court relied on Baggett v. Bullitt where the Supreme Court held that the term “promote” was “very wide”. [p. 31] The Court rejected Paxton’s suggestion that HB 18 could be narrowly constructed to make it constitutional.

While highlighting the vagueness of these provisions, the Court questioned whether liquor advertisements “glorify” substance abuse or the play Othello “glorifies” suicide under the law [p. 31]. Additionally, the Court observed that the law’s failure to define key prohibited topics –  such as “grooming,” “harassment,” and “substance abuse”- further exacerbates its vagueness, leaving social media platforms uncertain about what content must be restricted. The Court found that these indefinite meanings would enable an attorney general to “arbitrarily discriminate in his enforcement of the law”. [p. 33] The Court cited Little v. Llano County to highlight how the term “grooming” was used to restrict pro-LGBT content and noted that “the state deliberately sought a broader definition than criminal assistance or advocacy”. [p. 32]

Accordingly, the Court refused “a sweeping grant of censorial power” to the state and held that the law failed the First Amendment scrutiny [p. 33]

Regarding the “targeted advertising requirements”, the Court held that unlike the terms “facilitate” and “promote”, which were unconstitutionally vague, “advertising” has a common understanding and has not been deemed unconstitutionally vague in similar legal contexts and that SEAT and the others failed to establish that “advertising” is unconstitutionally vague by providing relevant case laws. However, the “targeted advertising requirements” were already enjoined by the Court for failing strict scrutiny. The Court found that the “content monitoring and age-verification requirements” in HB 18 were not proven to be unconstitutionally vague by SEAT and the others and that similar language appeared in various statutes but that, again the “content monitoring and age-verification requirements” were already enjoined for failing strict scrutiny.

The Court declined to address the prior restraint argument, ruling that the provisions already failed strict scrutiny and were unconstitutionally vague.

Accordingly, the Court held that SEAT and the others had satisfied the first condition of injunction, namely the likelihood of success on the merits since the “monitoring-and-filtering requirements”, “targeted advertising requirements”, “content monitoring and age-verification requirements” of HB 18 failed strict scrutiny and were deemed facially invalid.

The Court then examined whether there would be “irreparable harm” if the injunction was not granted and referred to the case of Roman Cath. Diocese of Brooklyn v. Cuomo [592 U.S. 14, 19] which held that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” [p. 35] The Court found that SEAT and the others had proved that their speech was chilled because of HB 18 and rejected Paxton’s argument that they delayed in bringing the suit.

The Court found that the third and fourth requirements of injunction – the balance of equities tipping in the plaintiff’s favor and that the injunction is in the public interest – follow the “likelihood of success on merits”, especially in cases against the government. Citing Texans for Free Enterprise v. Texas Ethics Comm’n it held that “[i]njunctions protecting First Amendment freedoms are always in the public interest” [p. 36]. Since the plaintiffs were likely to succeed in their First Amendment claims, the Court found an injunction to be in the public interest.

Accordingly, the motion for a preliminary injunction was granted in part (for the provisions the Court found to be subject to strict scrutiny) and denied in part (for those it did not).