Appeals Judge: Trials Are a 'Powerful Way to Resolve Issues' in Technical Cases
Noting that many judges aren't technology experts, 5th U.S. Circuit Court of Appeals Judge Patrick Higginbotham expressed concern Monday that many legal issues are decided using court documents instead of jury trials. “One of the frustrations” that stems from long-running litigation is that “a trial judge … never got to hear the full evidence,” he said during oral argument in CCIA v. Paxton.
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The case (docket 24-50721) involves a challenge from trade associations NetChoice and the Computer & Communications Industry Association about the constitutionality of Texas' 2023 Securing Children Online Through Parental Empowerment (Scope) Act, which requires social media companies to verify users’ ages and obtain parental consent for children younger than 18.
“What could” and “should have happened is” the utterance of “those four most powerful words that the judge speaks: ‘Call your first witness,’” Higginbotham said. Without a trial, there's no discussion of the provisions of the law, what it requires or what parts are potentially unlawful, he said.
“Instead … you got a bunch of judges talking about technology that they may or may not fully comprehend, because it has not been fully explained,” Higginbotham said (see 2510300001). Although demonstrating how the proposed controls in the law work seems “old-fashioned,” he argued, it's a “powerful way to resolve the issues.”
Cameron Fraser, assistant solicitor general of Texas, agreed that “extensive factual finding with respect not only to how the companies can implement the requirements, but also to what the statute in fact applies to,” is important in this case.
He noted that Higginbotham made similar comments during oral argument in NetChoice v. Fitch (see 2502050031). Another of Monday's panelists, Judge James Ho, also heard the argument in Fitch.
Fraser argued that trade associations engage in the “theoretical exercise of ‘How far can I stretch this statutory language?’” For example, he said, they might use logic like: “Oh my goodness, [the law] says child pornography. Well, that might include teenage sexuality, and therefore it might apply to Romeo and Juliet.”
“It gets hard to take these hypotheticals seriously at a certain point,” Fraser said, adding that “this is not just a Texas issue. All the states essentially are trying to adopt these laws.”
Judge Dana Douglas asked the state what the trade associations would have to do to argue that applications of the law were unconstitutional.
Fraser responded that CCIA and NetChoice should “apply and announce some sort of analysis,” but so far, they “haven't even tried to tease out the statutory requirements under monitoring and filtering.” He said they can’t just argue that the entire statute is unconstitutional; instead, they should point out the provisions that are unlawful and why.
Ho asked Fraser about certifying some of the issues to the Texas Supreme Court, noting that “in order to properly understand the constitutional analysis, we need to know what the state law means.” Fraser said the state could do that.
Lehotsky Keller lawyer Scott Keller, who represented CCIA and NetChoice, said the issue is that the law requires “websites to develop and implement a strategy ahead of time” to prevent minors’ exposure to almost a dozen categories of speech.
While Keller argued that the Texas law was also preempted by Section 230 of the Communications Decency Act, Ho didn't buy it. “It seems to be outside the scope of 230,” the judge said, asking Keller whether there was “tension” between the 230 arguments and his First Amendment arguments.
The “First Amendment and 230 aren't coterminous, but yet they do drive in the same direction,” Keller said.
But, Ho countered, “230 is about being held liable for somebody else's speech,” or “in other words, not your speech, whereas the First Amendment claim is based on something being your speech.”
“The state doesn't get to impose a wide, sweeping dragnet with thousands of dollars per violation and then say, ‘Well, we can figure this all out later,’” Keller responded. “The very reason why we had to seek preliminary injunctive relief was because of all the ambiguities that we're talking about here.”
In his rebuttal, Fraser also addressed the question of 230 preemption, saying Ho’s interpretation was “absolutely right.”
Robert Corn-Revere, chief counsel at the Foundation for Individual Rights and Expression and represented the user plaintiffs in the case, including Students Engaged in Advancing Texas and The Ampersand Group, said they challenge the targeted advertising restrictions outlined in the law, along with the monitoring and filtering issues that Keller outlined.
None of the judges questioned Corn-Revere, who argued that the ad restrictions endanger speech because they fall outside the scope of what previous courts have considered unprotected speech for minors.