• by Wendy Davis , Yesterday

Texas on Monday asked a federal appellate panel to lift an order blocking enforcement of a law that requires social media platforms to block "harmful" content to minors, and requires platforms to obtain parental consent before serving targeted ads to minors.

U.S. District Court Judge Robert Pitman in Austin previously blocked the law, ruling that those provisions of the Securing Children Online through Parental Empowerment Act (HB 18) likely violate the First Amendment.

On Monday Texas assistant solicitor general Cameron Fraser argued to a three-judge panel of the conservative 5th Circuit Court of Appeals that Pitman should have conducted a more in-depth analysis of the statute before enjoining it.

Fraser contended that Pitman should have looked at every type of activity affected by the statute, and weighed restrictions that might pass constitutional muster against ones that might be unconstitutional.

The text of the law defines harmful content as material that “promotes,” “glorifies,” or “facilitates” 11 types of activity -- suicide, self-harm, eating disorders, substance abuse, stalking, bullying, harassment, grooming, trafficking, child pornography or "other sexual exploitation of abuse."

Fraser argued that the mandate to prevent this content from being shown to teens -- referred to in court as the "monitoring and filtering" provision -- has "three verbs and 11 nouns," and that the law's challengers should have addressed how each verb applied to each noun, and then Pitman should have determined whether any unconstitutional applications "substantially outweigh" the constitutional applications.

The statute, passed last year, was the subject of two separate legal challenges -- one by the tech industry groups NetChoice and Computer & Communications Industry Association, and a second by a coalition including the group Students Engaged in Advancing Texas and the Austin-based agency Ampersand Group.

Robert Corn-Revere, an attorney for Students Engaged in Advancing Texas and other coalition members, urged the panel to uphold Pitman's injunction, arguing that the law unconstitutionally prevents social media users from accessing lawful speech.

He argued to the judges that the Police song "Every Step You Take" could be viewed as an "anthem" to stalking, and that Netflix's "13 Reasons Why" and Shakespeare's "Romeo and Juliet" could also fall within the law's restrictions on "harmful" material.

Corn-Revere also urged the panel to rule that the restriction on targeted advertising was "facially invalid," arguing that it would restrict ads "that minors have a constitutional right to access."

He added that the ban was "underinclusive" because it only applies to social platforms and not to ads in other media.

Former Texas solicitor general Scott Keller, who represents NetChoice and Computer & Communications Industry Association, argued both that the statute is unconstitutional and that its restrictions are overriden by Section 230 of the Communications Decency Act, which broadly provides that websites are not responsible for content created by users.

"At base, the government cannot commandeer [platforms] to monitor and filter speech on the state's behalf," Keller told the panel.

Circuit Judge James Ho, a Trump appointee, suggested at several points during the argument that the panel may ask the Texas Supreme Court to weigh in on what types of content the law actually covers. The panel also included Patrick Higginbotham (a Reagan appointee) and Dana Douglas (appointed by Biden).

The judges didn't indicate when they would issue a ruling.