• by Wendy Davis , August 2, 2024

A divided federal appellate court on Thursday left in place a block on a Mississippi law that would prohibit minors from creating social media accounts without parental permission.

The vote evidently was 2-1, with 5th Circuit Court of Appeals Judge James Ho stating that he thought the state should be allowed to enforce the law.

“The motion for a stay pending appeal should be granted,” Ho wrote in a short dissent, adding that the court could still lift the block in the future.

In addition to the parental consent requirements, the statute would require 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 statute would would apply 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. The measure also would require social platforms to verify all users' ages.

NetChoice argued the measure was unconstitutional for several reasons, including that the provisions regarding potentially harmful content amount to governmental censorship.

The digital rights group Electronic Frontier Foundation sided with NetChoice, arguing in a friend-of-the-court brief that the age verification provisions infringe all internet users' free-speech rights and also compromise people's privacy.

Last month, U.S. District Court Judge Halil Suleyman Ozerden in the Southern District of Mississippi issued an injunction prohibiting enforcement of the law, ruling that it likely violates the First Amendment.

Ozerden wrote that the measure's restrictions on speech aren't a good fit for the goal of protecting minors. He noted in the decision that even though there have been reports of suspected child sexual exploitation on Amazon and Roblox, both services are exempt from the law's restrictions.

The judge added that the statute's carve-out for services that “primarily” offered news, sports or certain other material likely was too vague to be constitutional, and that the provision requiring all users to verify their ages “burdens adults' First Amendment rights.”

Mississippi Attorney General Lynn Fitch appealed to the 5th Circuit and asked that court to stay Ozerden's ruling. Had the 5th Circuit done so, the statute could have gone into effect immediately.

Fitch argued that Mississippi would be “irreparably harmed” if it wasn't allowed to enforce the law -- which she characterized as a “targeted effort to address the life-altering and life-threatening harms to children that proliferate on interactive social-media platforms.”

Fitch's office is expected to file a new round of papers with the 5th Circuit by Aug. 17.