• by Wendy Davis  @wendyndavis, July 29, 2024

Mississippi's social media law would unconstitutionally restrict speech if allowed to take effect, the tech group NetChoice is telling a federal appellate court.

“The Act restricts too much speech on too many websites where there are private alternatives to governmental regulation,” NetChoice writes in papers filed late last week with the 5th Circuit Court of Appeals.

The group is urging the appellate court to uphold an injunction that prohibits the state from enforcing the new law, which had been slated to take effect July 1.

The statute requires digital platforms to verify all users' ages, and prohibit minors from creating social media accounts without parental permission. It also requires social platforms to prevent or mitigate minors' exposure to “harmful material” -- defined as content that promotes or facilitates eating disorders, substance abuse, sexual abuse and online bullying, among other material.

The measure applies to websites that allow users to create profiles and socially interact, with exemptions for employment-related sites and sites that “primarily” offer news, sports, commerce, online video games and content curated by the service provider.

Earlier this month, U.S. District Court Judge Halil Suleyman Ozerden in the Southern District of Mississippi blocked the law, ruling that it likely violates the First Amendment, which broadly protects free speech.

He said in a 40-page ruling that the measure's restrictions on speech aren't a good fit for the goal of protecting minors. For instance, he noted, even though there have been reports of suspected child sexual exploitation on Amazon and Roblox, both services are exempt from the law's restrictions.

Ozerden also said the statute's definition of “digital service provider” -- including the carve-out for services that “primarily” offered news, sports or certain other material -- likely was too vague to be constitutional.

Mississippi Attorney General Lynn Fitch recently asked the 5th Circuit to lift that block, arguing that the law marks a “targeted effort to address the life-altering and life-threatening harms to children that proliferate on interactive social-media platforms.”

Fitch added that the law advances the goal of “protecting minors from online harms,” arguing that each provision “makes it harder for predators to prey on minors online by making it harder for minors to participate in dangerous online platforms, likelier that parents will oversee minors’ online activities, and likelier that platforms will take measures to avert harms.”

NetChoice counters in its new papers that the law, if allowed to take effect, would “irreparably harm” web users as well as tech companies by restricting speech.

Among other arguments, NetChoice says parents already have the ability to exert control over their children's use of the internet -- such as by using settings offered by social platforms.

“NetChoice members give parents tools to control their children’s online experiences, complementing the many other tools parents have,” the group writes.

The organization also notes that other courts throughout the country -- including in Arkansas and Ohio -- have blocked laws that require social platforms to obtain parental consent before allowing minors to create accounts.

“Minors have the 'right to speak or be spoken to,' and governments lack the 'power to prevent children from hearing or saying anything without their parents’ prior consent,'” NetChoice writes, quoting from a 2011 Supreme Court decision that invalidated California restrictions on the sale of violent video games to minors.