• by Wendy Davis  @wendyndavis, September 25, 2024

A coalition including Texas students and the Austin-based ad agency The Ampersand Group is pressing a federal judge to block restrictions on social media platforms' ability to serve minors with targeted ads.

Those constraints “especially affect The Ampersand Group by restricting and burdening its ability to run ad campaigns,” aimed at teens, the activist organization Students Engaged in Advancing Texas and The Ampersand Group say in papers filed Monday with U.S. District Court Judge Robert Pitman in Austin.

The coalition makes the argument to support its request for an injunction prohibiting the state from enforcing the Securing Children Online through Parental Empowerment Act (HB 18) -- a new statute aimed at regulating social media.

That law directs 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 measure also requires platforms to limit the collection of minors' information, and prohibits platforms from serving targeted ads to minors, without parental consent. The statute doesn't define targeted advertising.

The law is being challenged on First Amendment grounds in two separate lawsuits -- one by the tech industry groups NetChoice and Computer & Communications Industry Association, and the other by the coalition of students and Ampersand Group, which handles advertising for nonprofits, government agencies and local businesses.

Pitman recently blocked some portions of the law in response to the lawsuit by NetChoice and Computer & Communications Industry Association -- including provisions that would have required platforms to filter potentially harmful material.

But Pitman denied the tech groups' request to block other portions of the law, including the bans on targeted advertising and data collection. He said it wasn't immediately apparent to him that those provisions are unconstitutional, but added that they might be blocked in the future.

That ruling left open the opportunity for Students Engaged in Advancing Texas and Ampersand Group to pursue their challenge to the law.

Texas Attorney General Ken Paxton recently urged Pitman to reject that challenge, arguing that coalition's allegations are too vague to warrant an injunction.

“Plaintiffs did not establish that they have concrete plans to view or post advertisements restricted by HB 18 in the near future,” he argued in papers filed earlier this month. “For instance, what specific ads are at issue? On which digital service? When will these ads be viewed/posted? Plaintiffs never really explain.”

He also said the law should be interpreted as restricting only “commercial” targeted ads.

The coalition counters in the new filing that the allegations in its complaint -- including those regarding targeted ads -- warrant an injunction.

“Plaintiffs need not identify specific future instances of speech that the act will proscribe,” they said, adding that plaintiffs who bring First Amendment challenges “need only aver that they generally intend to engage in the type of speech the act regulates.”

The coalition adds that its concerns are “concrete.”

“The Ampersand Group has and intends to run ads helping teens recognize sex trafficking, and intends to engage in future campaigns touching on restricted topics, like substance abuse,” the groups contend.

“Beyond requiring minors to seek consent to receive such ads, the act prohibits ads promoting subject matter the act forbids for minors, like PSAs about sex trafficking and substance abuse, or ads advocating decriminalizing certain activities,” the coalition adds. “Absent parental consent, the Ampersand Group would even be blocked from using social media to distribute to minors purely educational resources about vaccine access, illness prevention, and participation in the U.S. Census.”

The Ampersand Group and student organization also argue that the law will prevent minors from receiving wanted messages. For instance, they argue, the law would prevent Students Engaged in Advancing Texas from receiving ads on social media about initiatives the group supports.

Pitman hasn't yet said when he will rule on the coalition's request.