• by Wendy Davis  @wendyndavis, August 27, 2024

Mississippi's top law enforcement official is again asking a federal appellate court to lift a block on the state's new social media law, which requires digital platforms to verify users' ages, and prohibits minors from creating social media accounts, without parental permission.

The law “rationally advances the state’s legitimate interest in protecting minors from online harms,” Mississippi Attorney General Lynn Fitch argues in papers filed Tuesday with the 5th Circuit Court of Appeals.

On top of the age-verification and parental-consent requirements, the Mississippi law also 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 measure -- which had been slated to take effect in July -- 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.

Fitch characterizes the law's requirements as “modest regulations,” writing that the age-verification provision “puts a guardrail in place before minors are exposed to predators,” and that the parental-consent requirement “provides an additional guardrail by promoting parental oversight and involvement.”

NetChoice, a group funded by the tech industry, challenged the law as unconstitutional. The group argued the measure violates the First Amendment 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 mandate infringes everyone's free speech rights, and also threatens people's privacy.

Last month, U.S. District Court Judge Halil Suleyman Ozerden in the Southern District of Mississippi blocked enforcement.

He wrote that the provision requiring all users to verify their ages “burdens adults' First Amendment rights,” and that the restrictions on speech don't align well with the goal of protecting minors. For instance, he said, Amazon and Roblox are exempt from the law's restrictions even though there have been reports of suspected child sexual exploitation on both services.

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.

“It is unclear what test one uses to determine how a digital service 'primarily' functions,” he wrote.

Fitch is now asking the 5th Circuit to reject Ozerden's conclusion, arguing that the law's definition of digital service provider incorporates “plain terms” that are “readily understandable.”

“Anyone can look at the definition, look at a platform’s features, and know whether the act applies,” she writes, adding that the structure of the law confirms its focus is on “ interactive platforms that present special dangers to minors.”

Fitch previously urged the 5th Circuit to lift the injunction immediately. Earlier this month an appellate panel rejected that request by a 2-1 vote, but effectively said the court would reconsider after both sides had more fully briefed the issues.

Conservative Circuit Court of Appeals Judge James Ho dissented, writing that he thought the state should be allowed to immediately enforce the law.