Texas SCOPE Act ruling blocks online filtering mandate for minors

A Texas SCOPE Act ruling from the U.S. Court of Appeals for the 5th Circuit keeps the state from enforcing rules that would require certain online services to monitor and filter content shown to known minors. The 2-1 decision matters for social media and other digital platforms because the court said the mandate conflicts with Section 230 of the federal Communications Decency Act.

The case was brought by the Computer & Communications Industry Association and NetChoice, two tech industry groups that challenged parts of Texas’ Securing Children Online through Parental Empowerment Act. The law applies to websites and online apps that collect or process personally identifying information.

A district court had already issued a preliminary injunction against the monitoring and filtering provisions in August 2024. Texas Attorney General Ken Paxton appealed, but the 5th Circuit left that part of the injunction in place.

Why did the 5th Circuit block the Texas SCOPE Act filtering rule?

The court said the challenged rules were preempted by Section 230 because they targeted platforms’ decisions about monitoring, screening and removing third-party content. Section 230 generally protects interactive computer services from being treated as the publisher or speaker of information posted by others.

The Texas provisions would have required covered services to stop known minors from seeing material defined as obscene under Texas law, as well as content that promotes, glorifies or facilitates suicide, self-harm, eating disorders, substance abuse, stalking, bullying, harassment, grooming, trafficking, child pornography or other sexual exploitation or abuse.

Paxton argued that the law created compliance obligations rather than publisher liability and said it was consistent with Section 230’s child-protection purposes. The 5th Circuit majority rejected that view, saying enforcement actions over the filtering requirement would arise from platform conduct as publishers.

NetChoice said after the ruling that the law would have required websites to censor broad categories of lawful speech. The group said the 5th Circuit was right to keep the rules blocked and argued that parents should decide what is appropriate for their families.

What parts of the law can still be enforced?

The ruling was not a complete defeat for Texas. The 5th Circuit said Students Engaged in Advancing Texas, a student group that also challenged the law, lacked standing to pursue its claims.

That conclusion leaves other provisions available for enforcement. According to the court, those include requirements for platforms to have users register their ages before creating accounts, avoid showing targeted ads to known minors, make commercially reasonable efforts to prevent advertisers from targeting known minors with ads for illegal products or activities, and verify that users are at least 18 when more than one-third of a platform’s content is obscene.

The student group had argued that the law would chill or censor student speech. The court said the law did not apply directly to the students and had not been enforced against platform operators when they filed their complaint.

How the judges split

The panel included Judges Patrick Higginbotham, James Ho and Dana Douglas. All three agreed that the student group lacked standing, but Ho dissented from the decision to keep the monitoring and filtering rules blocked.

Ho wrote that the SCOPE Act regulates curation rather than publication, describing social media algorithms as first-party speech by the companies rather than third-party posts. The majority said it was applying existing 5th Circuit precedent and rejected the idea that courts must choose between First Amendment protection for editorial discretion and Section 230 protection against liability tied to third-party content.

This story draws on original reporting from Ars Technica.