• by Wendy Davis , Yesterday

A federal appellate court late last week revived the tech industry's effort to block a Tennessee law that requires social platforms to verify users' ages, and prohibits social platforms from allowing minors under age 18 to create accounts without parental consent.

The ruling came in NetChoice's challenge to Tennessee's Protecting Children from Social Media Act.

The organization argued that the law violates its members First Amendment rights, as well as social-media users' right to access online content.

Last year, U.S. District Court Judge Eli Richardson in Nashville rejected NetChoice's bid to block enforcement.

He said NetChoice was not entitled to an injunction because it had not proven that the statute posed a threat of "irreparable injury" to its members.

The group counts tech companies including Google, Meta and Snap as members.

Richardson suggested at the time that he would reconsider NetChoice's request if Tennessee officials threatened to sue any 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.

NetChoice appealed to the 6th Circuit Court of Appeals, arguing both that the statute violates the First Amendment and also causes “irreparable harm” to social platforms.

The organization noted that the Supreme Court previously struck down a California law that banned the sale of violent video games to minors, without parental consent.

In a 2-1 ruling, a panel of the 6th Circuit reversed Richardson's decision regarding "irreparable harm," but didn't take a position on whether the law actually violated the First Amendment.

Instead, the judges in the majority said if the law is found unconstitutional, its enforcement would subject NetChoice members to irreparable harm.

"Assuming NetChoice’s First Amendment claims are correct on the merits (on which we express no opinion and which we leave to the district court for consideration), we hold that its members have demonstrated irreparable harm on that basis,"  Circuit Judge Alice Batchelder wrote in an opinion joined by Kevin Ritz.

The ruling sent the matter back to Richardson for further proceedings on NetChoice's First Amendment arguments.

Circuit Judge Eric Clay dissented, opining that NetChoice "failed to demonstrate an imminent threat of irreparable harm."