A federal appeals court ruled 2–1 on July 24 that federal law overrides a key part of a Texas social media law that requires platforms to monitor and filter material deemed harmful to minors.
A provision in the state law required digital service providers to come up with a strategy to prevent minors from being exposed to what it describes as “harmful material” and other content “that promotes, glorifies, or facilitates” “suicide, self-harm, or eating disorders;” “substance abuse;” “stalking, bullying, or harassment;” and “grooming, trafficking, child pornography, or other sexual exploitation or abuse.”
In the same ruling, the U.S. Court of Appeals for the Fifth Circuit also declined to strike down a provision of the same Texas law, the Securing Children Online through Parental Empowerment (SCOPE) Act, also known as HB 18, that imposes age verification requirements, which the Supreme Court last year ruled pass constitutional muster.
In both cases, a federal district court issued a preliminary injunction blocking the state statute except for provisions such as the age-verification requirement. Texas Attorney General Ken Paxton appealed, and the Fifth Circuit consolidated the case.
Circuit Judge Dana Douglas said in the majority opinion that the monitoring and filtering mandate is preempted, or overridden, by Section 230 of the federal Communications Decency Act, one of the most important laws regulating the internet.
That section states that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” This means that online platforms generally cannot be held liable for content created by their users, and shields platforms when they remove content they consider objectionable, even when that content is constitutionally protected speech.
Douglas said that “actions to enforce the monitoring and filtering requirement are claims stemming from [digital service providers’] actions as publishers, that is, from their monitoring, screening, and deletion of content … are thus squarely preempted by Section 230.”
Allowing the requirement would make providers liable for “state-set publication standards, not only ‘treating [them] as a … publisher or speaker, but treating them as publishers subject to sweeping state controls.”
Circuit Judge James Ho concurred in part in the judgment and dissented in part, saying he would have allowed the monitoring and filtering provision.
Ho said that curating third-party content is “fundamentally different” from publishing it.
“A digital service provider may choose to publish content created by third parties. But the providers engage in their own speech when they curate that content,” he said, citing the Supreme Court’s 2024 ruling in Moody v. NetChoice.
The state law does not make digital service providers liable as either publisher of speaker of the third-party content, and “simply holds digital service providers liable for their own efforts to curate that content,” Ho said.
Because the statute deals with curation, “it’s not preempted by section 230.”
“That’s because the [state] Act simply imposes a duty on social media companies to meet certain standards for curation—that is, for their own speech. It imposes no penalty based on the publication of third-party speech,” he said.
