Background
Tennessee’s Protecting Children from Social Media Act requires covered social-media companies to verify the age of prospective account holders, obtain parental consent before allowing minors to open accounts, and provide parents with account-supervision tools. The Tennessee Attorney General may investigate suspected violations and pursue injunctions, civil penalties, restitution, license revocation, and other relief.
NetChoice, a trade association representing internet companies, sued the Tennessee Attorney General in a pre-enforcement challenge, alleging that the Act violates the First Amendment and is unconstitutionally vague. The district court denied NetChoice’s motion for a preliminary injunction solely because it found no sufficiently immediate irreparable harm, declining to address likelihood of success, the equities, or the public interest. NetChoice appealed that interlocutory ruling.
The Court’s Holding
In a 2-1 decision, the Sixth Circuit held that the district court abused its discretion by rejecting NetChoice’s asserted irreparable harms. The majority concluded that unrecoverable costs of complying with a regulation may constitute irreparable harm even when those costs are ordinary or modest; their size and specificity affect the weight they receive in the equitable balance, not whether they enter that balance at all. Evidence from Nextdoor and Dreamwidth was sufficient to require consideration of their alleged compliance costs.
The majority also held that, assuming NetChoice’s First Amendment claims are correct on the merits, its members showed a sufficiently immediate threat of lost speech rights to clear the threshold irreparable-harm requirement. The Attorney General had stated that NetChoice’s members were not complying with the Act and refused to stay enforcement, and the Act’s notice procedure did not eliminate the alleged chilling effect. The court expressly declined to decide the merits of the constitutional claims or whether a preliminary injunction should issue. It vacated the order denying preliminary relief and remanded for the district court to evaluate and balance all four preliminary-injunction factors and tailor any remedy to the injuries proved.
Key Takeaways
- Unrecoverable regulatory-compliance costs qualify as irreparable harm in the Sixth Circuit, although their magnitude and evidentiary support determine their weight in the injunction analysis.
- A pre-enforcement First Amendment injury need not await an actual enforcement action when the surrounding circumstances show a credible and immediate threat capable of chilling speech.
- The ruling does not invalidate Tennessee’s Act or grant an injunction; it requires the district court to reconsider NetChoice’s motion under the complete preliminary-injunction framework.
Why It Matters
The decision clarifies that courts may not categorically disregard ordinary compliance costs when assessing irreparable harm and that a regulator’s statements and refusal to disavow enforcement can make a threatened First Amendment injury sufficiently immediate for preliminary-injunction purposes.
The remand leaves the central constitutional questions unresolved. The district court must still decide NetChoice’s likelihood of success, balance the equities and public interest, and determine whether any relief should extend beyond members that supplied evidence of injury. Judge Clay dissented, concluding that neither enforcement nor the alleged compliance costs were sufficiently imminent or substantiated.