Antitrust Law Daily Wrap Up, PRIVACY—5th Cir.: Mississippi age-gating case sent back to district court, (Apr 21, 2025)

By Lynn Stanton, TR Daily

The district court’s injunction against a Mississippi law that requires age verification was premature.

The U.S. Court of Appeals for the Fifth Circuit (New Orleans) overturned a preliminary injunction of a Mississippi law that requires social media platforms to verify the ages of users and requires them to obtain parental consent before granting minors access to the site and returned the case to the U.S. District Court for the Southern District of Mississippi for the “more detailed factual analysis” the Fifth Circuit said was required by the Supreme Court’s decision last year in Moody v. NetChoice LLC (NetChoice v. Fitch, No. 24-60341 (5th Cir. April 17, 2025)).

The Supreme Court remanded Moody v. NetChoice—in which the trade group was challenging a Florida law restricting content moderation by social media platforms—to the 11th Circuit (Atlanta), saying it had not “properly considered the facial nature of NetChoice’s challenge” in the context of upholding a district court’s preliminary injunction. The Supreme Court, in an opinion by Justice Elena Kagan, said the lower courts had not considered how the law applied to other kinds of websites and apps, beyond social media platforms, and that the law’s full applications must be considered in determining whether the law is unconstitutional on its face.

Alongside Moody, the Supreme Court remanded another case dealing with a similar Texas law to the Fifth Circuit for further factual analysis (NetChoice, LLC, d/b/a NetChoice, et al. v. Ken Paxton, Attorney General of Texas, case 22-555). The district court in the Texas case granted NetChoice a preliminary injunction on the same day that the Supreme Court issued its decision in Moody, the Fifth Circuit noted, and thus could not have applied the analysis laid out by the Supreme Court.

In its challenge of the Mississippi law, NetChoice had argued before the district court that mandating age and identity verification for digital services would “undermine privacy and stifle the free exchange of ideas.” The district court said the law was overbroad and therefore unconstitutional. It found that NetChoice was likely to succeed on the merits of its lawsuit. Mississippi Attorney General Lynn Fitch (R.) appealed the district court’s decision to grant NetChoice a preliminary injunction to prevent the state from enforcing the law, which was to take effect July 1, 2024.

In the opinion for a three-judge panel of the Fifth Circuit, Senior Circuit Judge Patrick E. Higginbotham wrote, “Moody clarified that to determine whether a substantial number of a law’s applications are constitutional relative to a statute’s plainly legitimate sweep”—the standard Moody says is to be used in First Amendment cases—“requires a two-step analysis. The first step is to define the law’s scope. That is, the court must determine what activities and what actors are regulated, and whether the law regulates or prohibits those actors from conducting those activities. The second step is ‘to decide which of the law[’s] applications violate the First Amendment, and to measure them against the rest.’ ‘If the ‘law’s unconstitutional applications substantially outweigh its constitutional ones,’ then and only then is the law facially unconstitutional,” NetChoice LLC v. Lynn Fitch, in her official capacity as Attorney General of Mississippi, No. 24-60341, slip op. at 10-11 (5th Cir. April 17, 2024).

Judge Higginbotham said the district court “did not determine whether the Act applies to DSPs [digital service providers] like Uber, Google Maps, DraftKings, Microsoft Teams, Reddit, Pinterest, or X,” slip op. at 12, nor did it “determine the ‘commercially reasonable efforts,’ as used in the Act, or the Act’s requirements for each DSP, requirements likely to be different with each DSP facing a unique regulatory burden,” slip op. at 13.

“As in Moody, a factual inquiry remains for the district court to resolve: It must determine to whom the Act applies the activities it regulates, and then weigh violative applications of the Act against non-violative applications. 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,” Judge Higginbotham concluded, slip op. at 14.

Circuit Judges Don R. Willet joined Judge Higginbotham in the opinion.

In a concurring opinion, Judge James C. Ho noted that Justice Clarence Thomas, in a dissenting opinion in the Supreme Court’s 2011 case Brown v. Entertainment Merchants Association, “made clear that nothing in the First Amendment prevents states from helping parents protect their children by regulating their access to certain content. … If Justice Thomas’s views in Brown were the law of the land, it would be a relatively easy matter for us to reverse the district court and uphold the Mississippi law challenged in this case. But they’re not. So I agree with my distinguished colleagues that we should vacate the preliminary injunction and remand for further proceedings consistent with Moody v. NetChoice, 603 U.S. 707 (2024),” slip op. at 1.

In a statement, Paul Taske, associate director—litigation for NetChoice, said, “NetChoice is disappointed in this ruling from the Fifth Circuit, and we will be considering all available options going forward. NetChoice will continue to fiercely defend free expression and free enterprise online, and remain confident the law will not stand.”

Companies: NetChoice, L.L.C.

Cases: Privacy LouisianaNews MississippiNews TexasNews