• by Wendy Davis , 11 hours ago

Mississippi is pressing a federal appellate court to uphold a state law requiring social platforms to verify all users' ages, and prohibiting minors from creating social media accounts without parental permission.

The law "regulates certain websites to protect children from predators," and "advances that interest while imposing at most modest burdens on speech," Attorney General Lynn Fitch argues in papers filed Thursday with the 5th Circuit Court of Appeals.

In addition to requiring parental consent for social media, the Mississippi House Bill 1126 statute also requires social platforms to take reasonable steps to prevent or mitigate minors' exposure to “harmful material” -- defined as including material that promotes or facilitates eating disorders, substance abuse, sexual abuse and harassment.

The First Amendment typically prohibits the government from banning lawful speech, even if that speech is considered "harmful."

The tech industry-funded organization NetChoice sued to block enforcement, arguing the statute violates the First Amendment.

In June, U.S. District Court Judge Halil Ozerden in the Southern District of Mississippi agreed with NetChoice and issued an injunction prohibiting the state from enforcing the law against eight NetChoice members -- Dreamwidth, Meta Platforms, Nextdoor, Pinterest, Reddit, Snapchat, X and YouTube.

Mississippi appealed and, in July, the 5th Circuit Court of Appeals temporarily lifted the injunction.

NetChoice then urged the Supreme Court to reverse the 5th Circuit on an emergency basis and reinstate Ozerden's injunction.

The Supreme Court denied that request in August, effectively allowing Mississippi to enforce the law while NetChoice's challenge proceeds in the lower courts. At the time, Justice Brett Kavanaugh said in a written concurrence that Mississippi's law is "likely unconstitutional," but that NetChoice "has not sufficiently demonstrated that the balance of harms and equities" warrants an emergency order.

After the Supreme Court refused to restore the injunction on an emergency basis, Bluesky began blocking access to people whose IP addresses indicated they were in Mississippi.

Mississippi and NetChoice are now battling over the statute at the 5th Circuit.

Last month, Fitch argued to the appellate court that Ozerden's injunction should permanently be lifted, arguing that age verification and parental consent "are common ways for states to protect minors."

NetChoice countered earlier this month that the law violates the First Amendment "by restricting online speech in multiple ways."

Among others, the law "unconstitutionally prohibits minors from speaking and accessing the enormous amount of fully protected speech" on social platforms, without parental consent, NetChoice wrote. 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, without parental consent.

NetChoice also said the law unconstitutionally imposes "monitoring-and-censorship requirements for protected speech."

The group specifically argued that even though the statute requires social platforms to prevent or mitigate teens' exposure to posts that promote "substance abuse" and "harassment," the law doesn't define those terms.

Fitch on Thursday urged the court to reject NetChoice's arguments.

"Even if some words in the provision had uncertainty around the margins (an unavoidable feature of language), that would not prevent a platform from making 'commercially reasonable efforts' to adopt a strategy to address the listed harms," the attorney general argued.

"Adopting a reasonable strategy does not require neurosurgery levels of precision: it requires reasonable efforts," the state added.

The 5th Circuit has not yet set a date for oral arguments.