US appeals court blocks Texas mandate for digital platforms to filter 'harmful' content
A divided panel upholds a preliminary injunction against the SCOPE Act’s content-filtering provisions, rejecting arguments from Texas officials that the law imposes compliance duties rather than publisher liability.
The US Court of Appeals for the Fifth Circuit has ruled that Texas cannot enforce a provision of the Securing Children Online through Parental Empowerment (SCOPE) Act requiring digital service providers to monitor and filter content accessible to known minors. In a 2-1 decision delivered on Friday, judges determined that the monitoring and filtering requirement is preempted by Section 230 of the federal Communications Decency Act of 1996, which prohibits treating interactive computer services as the publisher of third-party information.
The ruling upholds a preliminary injunction granted by a district court in August 2024, effectively blocking the state from enforcing these specific content-filtering rules. The injunction was sought by the Computer & Communications Industry Association (CCIA) and NetChoice, who argued that the law would force websites to censor broad and vaguely defined categories of lawful speech. The Fifth Circuit panel found that the tech groups had demonstrated a likelihood of success on their preemption claim, noting that Section 230 provides digital service providers with broad immunity from claims stemming from their publication of third-party information.
Texas Attorney General Ken Paxton appealed the district court’s decision, arguing that the SCOPE Act imposed compliance duties rather than publisher liability and aligned with the child-protection goals of Section 230. However, the judges rejected this argument, stating that enforcement actions against digital service providers for monitoring, screening, and deleting content are claims stemming from their actions as publishers. The court distinguished this case from a previous 2024 Fifth Circuit decision that upheld an age-verification requirement for pornographic websites, noting that the SCOPE Act’s rule was specifically about content filtering rather than age verification.
Despite blocking the filtering mandate, the court found that a student group challenging the law, Students Engaged in Advancing Texas (SEAT), lacked standing. Consequently, other provisions of the SCOPE Act remain enforceable. These include requirements for platforms to verify user ages before account creation, restrictions on targeted advertising to known minors, and obligations to verify that users are 18 or older if more than one-third of the platform’s content is obscene. The judges determined that the student group’s fears of censorship based on indirect regulation were insufficient to support a pre-enforcement challenge.
Judge James Ho dissented from the majority’s decision to block the filtering rules, arguing that the law regulates curation rather than publication. Ho contended that algorithms designed to curate feeds constitute first-party speech, distinct from the third-party content displayed. He cited Supreme Court Justice Clarence Thomas’s suggestion that social media platforms inconsistently apply the distinction between curation and third-party content to avoid liability. The majority, however, stated that their ruling straightforwardly applied existing precedents and that Section 230 protects editorial discretion from civil liability based on third-party content.
