Mississippi asked the Supreme Court on July 30 to allow it to continue enforcing a law restricting minors’ access to social media platforms.
The new filing by Lynn Fitch, Mississippi’s attorney general, argues that House Bill 1126 is constitutional. The statute requires minors to obtain parental consent to use the websites. It also requires platforms to verify users’ ages and imposes fines for noncompliance.
NetChoice, a trade association for internet companies, filed the application after the U.S. Court of Appeals for the Fifth Circuit lifted a federal district court’s injunction that shielded several platforms from the law’s requirements. NetChoice argues the state law violates First Amendment free speech protections.
Nine platforms that belong to the trade association had been shielded by the district court’s now-suspended ruling. They are Facebook, Instagram, X, YouTube, Pinterest, Snapchat, Nextdoor, Reddit, and Dreamwidth.
House Bill 1126 requires the platforms to make reasonable efforts to verify the age of users.
Under the law, the websites are not allowed to let a minor have a social media account unless he or she has parental consent. Websites also have to make reasonable efforts to prevent minors from being exposed to “harmful material” that “promotes or facilitates” harms to minors. Such “harms” include self-harm, encouragement of illegal drug use, stalking, violence, and online bullying. Among other harms are child pornography, sexual exploitation, incitement of violence, and any other illegal activity.
If the law is broken, the state may seek an injunction, a fine of up to $10,000 per violation, as well as criminal penalties under the state’s deceptive trade practices law.
House Bill 1126 does not run afoul of the First Amendment, and is consistent with the Supreme Court’s June 27 ruling upholding a Texas age-verification law applying to pornography websites, she said.
Intermediate scrutiny allows a statute to survive when it “advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests,” he said.
When the district court blocked House Bill 1126, it applied a tougher constitutional test—known as strict scrutiny—that was inappropriate, Fitch said.
Strict scrutiny is the highest level of review used by the courts. Under it, the government has to show that a law is narrowly tailored to advance a compelling governmental interest and that the law is the least restrictive way to serve that interest.
The Mississippi law puts “a guardrail in place before minors are exposed to predators,” and the restrictions it mandates, such as parental consent and age-verification, are “sufficiently tailored” to accomplish that goal, she said.
“Mississippi should not have to endure another year of appellate proceedings to get out from under an injunction that the Fifth Circuit already rejected,” Fitch added.
NetChoice argues in the application that people have a right to access social media websites because they contain “vast amounts of protected speech,” quoting the Supreme Court’s 2017 ruling in Packingham v. North Carolina.
Mississippi has failed to show “a direct causal link between” access to the “regulated websites and harms to minors,” the application states. The law’s “blunderbuss approach to regulating online speech” is unconstitutional, NetChoice argues.
The trade association also said it will likely succeed in its argument on the merits and that its members and their users “will suffer irreparable injury without a stay.”
The Supreme Court could act on the application at any time.
