• by Wendy Davis  @wendyndavis, September 3, 2024

A federal judge has blocked portions of a new Texas law that would require social platforms to use filtering technology to prevent "harmful" content from being served to minors under 18.

But the judge is allowing the state to enforce other portions of the law, including restrictions on data collection from minors and targeted advertising to them.

In a ruling issued late Friday, U.S. District Court Judge Robert Pitman in Austin issued an injunction against provisions of the Securing Children Online through Parental Empowerment Act (HB 18) that would require social platforms to ask users their ages, and then deploy filtering technology to block "harmful" content to minors. The statute defines harmful content as including material that “promotes,” “glorifies,” or “facilitates” eating disorders, self-harm, substance abuse, and “grooming ... or other sexual exploitation or abuse.”

The bill was passed last year and slated to take effect September 1.

The tech industry groups NetChoice and Computer & Communications Industry Association sued to block the law, arguing that it violates the First Amendment's prohibition on censorship, and is inconsistent with Section 230 of the Communications Decency Act, which protects web publishers from liability for material posted by users.

Pitman partially sided with the tech organizations, writing that the provisions requiring companies to filter “harmful” material are unconstitutional because they're so broad and vague that they would allow the government to censor speech that's protected by the First Amendment.

“It is far from clear that Texas has a compelling interest in preventing minors’ access to every single category of information” covered by the statute," Pitman wrote.

“Some interests are obvious -- no reasonable person could dispute that the state has a compelling interest in preventing minors from accessing information that facilitates child pornography or sexual abuse,” he continued.

“On the other end, many interests are not compelling, such as regulating content that might advocate for the deregulation of drugs (potentially 'promoting' 'substance abuse') or defending the morality of physician-assisted suicide (likely 'promoting' 'suicide'),” he added.

Pitman added the statute leaves key terms undefined, which could result in arbitrary enforcement.

“When does an extreme diet cross the line into an 'eating disorder?' What defines 'grooming' and 'harassment?'” he wrote.

“Under these indefinite meanings, it is easy to see how an attorney general could arbitrarily discriminate in his enforcement of the law,” Pitman added. “Such a sweeping grant of censorial power cannot pass First Amendment scrutiny.”

Pitman also agreed with the tech industry that Section 230 overrides the Texas law's mandate to screen out supposedly harmful content.

At the same time, he allowed other parts of the law to go into effect -- including provisions requiring platforms to limit the collection of minors' information, and prohibiting platforms from serving targeted ads to minors, without parental consent. The statute doesn't define targeted advertising.

Pitman said restrictions on the collection and use of data might be blocked at a future date, but that it wasn't immediately clear to him that they are unconstitutional. He specifically said those portions of the law “seem to regulate conduct and only incidentally burden speech (if at all).”

A federal judge in California came to a different conclusion about a law that would have prevented tech companies from drawing on minors' data for ad targeting.

In that case, U.S. District Court Judge Beth Labson Freeman said the restriction on data-driven advertising didn't appear to take into account the “beneficial aspects of targeted information.”

“The internet may provide children -- like any other consumer -- with information that may lead to fulfilling new interests that the consumer may not have otherwise thought to search out,” Freeman wrote when she blocked the California law.

Pitman's ruling also allows Texas to enforce provisions giving parents the ability to change their children's privacy settings, and limit the amount of time their children spend on social media services.

“Overall, these provisions likely primarily regulate conduct, and while the court can conceive of ways in which they do burden speech (e.g., reducing the hours a child may spend consuming speech on social media), that point is not sufficiently developed at this stage,” he said.

Last month, a coalition of Texas students and organizations separately sued to block the Texas law, arguing that it would restrict teens' right “to access and disseminate constitutionally protected content,” and also burden adults' free-speech by “forcing them to sacrifice anonymity or privacy to exercise their First Amendment rights.”

The coalition -- which includes individual students as well as the advocacy organization Students Engaged in Advancing Texas and the advertising company Ampersand Group -- raised numerous arguments, including that the law would restrict nonprofits, government agencies and local businesses from attempting to send public service messages to teens.

That suit is still pending in front of Pitman.