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State AG Will Keep Fighting

NetChoice Wins Preliminary Injunction Against Miss. Age-Verification Law

A Mississippi social media law requiring age verification may not be enforced while litigation continues, the U.S. District Court for Southern Mississippi decided Monday. The state law requiring parental consent for minors younger than 18 (HB-1126) was to take effect that day. But the court said NetChoice showed a high likelihood of success in its complaint (see 2406070059) against Mississippi Attorney General Lynn Fitch (R).

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It is not lost on the Court the seriousness of the issue the legislature was attempting to address, nor does the Court doubt the good intentions behind the enactment of H.B. 1126,” Judge Halil Ozerden wrote (docket 1:24-cv-00170). However, the content-based Mississippi law is subject to strict scrutiny, he said. “That is a high bar, which at this preliminary stage of the proceedings, Plaintiff has shown the Act likely does not meet.” Since the tech industry group “has carried its burden of showing a substantial likelihood of success on the merits of its claim that the Act is unconstitutional under a First Amendment facial challenge and, alternatively, a Fourteenth Amendment vagueness challenge, [the court] will grant the Motion for a Preliminary Injunction without requiring security.”

The Mississippi AG office disagrees “that the Constitution blocks the State’s effort to protect children online,” a spokesperson said. “We will continue to fight for this commonsense law because our children’s mental health, physical security, and innocence should not take a back seat to Big Tech profits.”

NetChoice is “pleased the court sided with the First Amendment and stopped Mississippi’s law from censoring online speech, limiting access to lawful information and undermining user privacy and security as our case proceeds,” said Chris Marchese, NetChoice Litigation Center director. “We look forward to seeing the law struck down permanently.”

The state law covers digital service providers but makes exemptions for news, sports, commerce and online videogames, “specifically excluding from its reach certain providers based upon the primary purpose or subject matter of their service,” Ozerden said in the decision. “The facial distinction in [the law] based on the message the digital service provider conveys, or the more subtle content-based restriction based upon the speech’s function or purpose, makes the Act content-based, and therefore subject to strict scrutiny.”

The court “accepts as true” the state AG’s position that “safeguarding the physical and psychological wellbeing of minors online is a compelling interest,” Ozerden said: But a government must show that its rules are narrowly drawn. The AG didn’t show “that the alternative suggested by NetChoice, a regime of providing parents additional information or mechanisms needed to engage in active supervision over children’s internet access … would be insufficient to secure the State’s objective of protecting children,” the judge said.

The state law is overinclusive because it requires “all users (adults and minors) to verify their ages before creating an account to access a broad range of protected speech on a broad range of covered websites. This burdens adults’ First Amendment rights.” It’s also overinclusive because uncertainty about the law and its enforcement may cause overly aggressive moderation by tech companies, which may not all be able to gate content by age, the judge said. Plus, the law treats all children “from birth to 17 years and 364-days old,” the same, and “not all children forbidden by the Act to create accounts on their own have parents who will care whether they create such accounts.”

Yet the law is also “underinclusive because it permits a child to create an account with certain websites, but not others,” said Ozerden: That creates doubt that the government is pursuing its stated interest as opposed to disfavoring a specific speaker or viewpoint. It’s also underinclusive because the law fails to explain how a parent or guardian relationship will be confirmed for consent purposes. In addition, the law seems to exempt some websites that were mentioned in a 2023 CyberTipline report cited by the AG to defend the state law.

Also, Ozerden questioned the law for requiring websites to try to mitigate minors’ exposure to harmful material without preventing them from searching for that content. “Permitting minors who have presumably obtained parental consent to view otherwise-prohibited content simply because they initiated it by ‘searching for’ or ‘requesting’ it would not serve the State’s compelling interest in protecting minors from the predatory behavior online.”

The judge agreed with industry on other constitutional concerns. “NetChoice has shown that at least one core part of the Act is vague and deprives it of a constitutionally-protected liberty interest, making it impermissibly vague in all of its applications,” added Ozerden. Additionally, possible irreparable harm “weighs in favor of granting a preliminary injunction.”