SUMMARY
- The Fifth Circuit will rehear challenges to Texas’s SCOPE Act, reopening a fight over state-mandated filtering of social media.
- The law orders covered platforms to prevent minors from seeing broad categories of content, raising threats to lawful political speech and mental-health discussion.
- A July panel ruling preserved a block on the filtering mandate under Section 230. The court has now vacated that opinion.
- The case comes amid a wider push to make access to online speech depend on age checks, a trend documented in previous FFO reporting.
The U.S. Court of Appeals for the Fifth Circuit has reopened a legal battle over a Texas law that would conscript social media platforms into filtering what young people can read online.
In an order issued on 28 October, the court granted rehearing en banc in two consolidated challenges to the Securing Children Online through Parental Empowerment Act, or SCOPE Act. It vacated the three-judge panel’s July opinion, removing a favorable appellate ruling for opponents of the law’s censorship provisions.
At the center of the fight is Section 509.053. It requires covered services to develop a strategy to prevent known minors’ exposure to material that “promotes, glorifies, or facilitates” suicide, self-harm, eating disorders, substance abuse, stalking, bullying, harassment and sexual exploitation.
The prescribed machinery includes blocking lists, filtering technology, hash-sharing, databases of filter-evasion keywords and human reviews. This gives government a direct role in determining the rules under which platforms screen speech.
Despite the law’s name, parents do not get to waive the filtering duty through its parental-override provision. Section 509.102 lets verified parents alter certain restrictions on data use, advertising and transactions under Section 509.052. It gives them no equivalent power over the content restrictions in Section 509.053.
The Texas attorney general’s office presents the law as protection against harmful content and exploitative data practices. It says violations can attract civil penalties of up to $10,000 each, alongside injunctive relief and attorneys’ fees. That enforcement threat gives platforms a powerful incentive to block disputed material.
A discussion of drug legalization can involve arguments for changing the law. An account of mental illness can describe dangerous behavior while helping readers understand it. Both require context that a filtering system can miss. Platforms facing penalties have an incentive to remove disputed material rather than defend its publication.
FFO’s reporting on the Online Safety Act documented how age filters in Britain reached protest livestreams, testimony from a grooming-gang survivor and material about the wars in Gaza and Ukraine. Those examples show how child-safety rules can restrict access to news and firsthand accounts of abuse.
Texas sought rehearing on 28 August. The Computer & Communications Industry Association and NetChoice opposed that request the following month. Their case has been consolidated with a separate challenge involving Students Engaged in Advancing Texas, a teenage social-media user and other plaintiffs represented by the Foundation for Individual Rights and Expression.
Section 230 generally bars treating an online service as the publisher or speaker of information supplied by someone else. The central legal question is whether that federal protection prevents Texas from imposing liability for platforms’ decisions about filtering their users’ posts.
In its now-vacated 24 July opinion, the panel majority held that Section 230 barred the filtering mandate. It described the law as treating platforms as “publishers subject to sweeping state controls.” The majority did not reach the constitutional challenge to that mandate.
Judge James Ho would have removed the filtering injunction too. His dissent distinguished platforms’ own curation from users’ underlying posts, arguing that Section 230 did not protect the former against this law.
Texas’s rehearing petition argues that platforms’ selection and recommendation of posts constitute their own speech, distinct from the underlying content supplied by users. On that reading, the filtering mandate regulates the platforms’ own expressive conduct and falls outside Section 230’s protection for third-party content.
The trade associations’ response argues that constitutional protection and Section 230 can overlap. A platform’s editorial choices can be protected by the First Amendment while its handling of users’ posts also receives statutory protection. Recognizing the first protection, they argue, does not cancel the second.
The panel also rejected some of the separate plaintiffs’ challenges for lack of standing and treated their challenge to a distinct age-verification provision as foreclosed by the Supreme Court’s Free Speech Coalition v. Paxton decision. Its ruling was therefore a partial victory for the challengers.
The SCOPE Act also distinguishes between registering and verifying age. Section 509.051 requires users to register their age before opening an account on a covered service. That requirement was not enjoined. Separately, Section 509.057 requires adult-age verification for services on which more than one-third of the material falls within Texas’s legal definitions of material harmful to minors or obscenity. Those definitions concern sexual material. Registering an age does not, by itself, require every social-media user to upload identification.
FFO previously documented how Britain’s 5Rights Foundation promoted British-style child-safety regulation in America, including sponsoring California’s Age Appropriate Design Code. Age-based rules create pressure for services to determine whether their users are children or adults, extending their effects beyond the content selected for filtering.
In its analysis of the Senate’s Digital Age Assurance Act, FFO examined a proposal to move age checks to operating systems and send age signals to apps and websites. The report identified gaps concerning verification methods and records of requests for those signals. Such proposals would build age screening into the technology used to reach online speech.
The rehearing order directs the clerk to arrange supplemental briefing and says oral argument will be scheduled later. It does not decide the law’s validity or expressly lift the district court injunctions.
