• by Wendy Davis , Yesterday

The tech organization NetChoice will ask the 6th Circuit Court of Appeals to block a Tennessee law that prohibits Facebook, Instagram, Snap and other social media companies from allowing minors under 18 to create accounts, without parental consent.

The group initiated its appeal late last week, but hasn't yet filed substantive arguments with the 6th Circuit.

NetChoice's move comes one month after U.S. District Court Judge Eli Richardson in Nashville refused to enjoin enforcement of Tennessee's Protecting Children from Social Media Act. He said ata the time that NetChoice wasn't entitled to an injunction because it hadn't proven that the statute posed a threat of "irreparable injury" to its members. The group's membership roster includes Google, Meta, Snap and other tech companies.

The Tennessee law, in addition to banning minors from social media, without parental consent, also requires social platforms to verify all users ages.

NetChoice sued over the law last year, arguing that it violates social platforms' First Amendment right to distribute content, teens' First Amendment rights by restricting their ability to access media, and the rights of all social media users by effectively requiring them to identify themselves before accessing content.

The organization noted that the Supreme Court in 2011 struck down a California law that would have prohibited the sale of violent video games to minors, unless their parents consented. Justice Antonin Scalia said in that matter that states don't have a “free-floating power to restrict the ideas to which children may be exposed."

NetChoice also said its members were already being affected by the statute, noting that one company -- hyperlocal social platform NextDoor -- had started blocking users under 18 from its platform, due to the law, which took effect in January.

The tech organization additionally contended that the statute harmed platforms' users, arguing that a deprivation of First Amendment rights is considered an irreparable injury.

Richardson rejected NetChoice's arguments, writing that NetChoice would only be entitled to an injunction if its members -- not their users -- could show irreparable harm. But he suggested he would reconsider NetChoice's request if Tennessee officials threatened to sue any of the group's members over alleged violations.

"Should circumstances change -- for example, if defendant threatens or institutes enforcement actions pending the outcome of this litigation -- the calculus could change regarding irreparable injury," Richardson wrote.

First Amendment lawyer Aaron Mackey with the digital rights group Electronic Frontier Foundation told MediaDailyNews last month that the ruling was an outlier, and inconsistent with Supreme Court precedent.

Requiring NetChoice to show a threat of prosecution before obtaining an injunction "holds NetChoice to a standard no other speaker challenging a law that violates First Amendment rights has ever been held to," Mackey said.

He added that if the substance of a law violates the First Amendment, challengers "don't have to actually violate the law and invite an enforcement action" before obtaining an injunction against enforcement.