Background
Georgia enacted SB 351 to regulate minors’ use of covered social-media platforms. The law requires platforms to make commercially reasonable efforts to verify every account holder’s age, bars children under 16 from opening accounts without parental consent, and restricts platforms from targeting users under 16 with advertisements based on personal information other than age and location.
NetChoice sued before the law took effect, alleging that SB 351 violated the First Amendment facially and as applied, was unconstitutionally vague, and was preempted by Section 230 of the Communications Decency Act. The district court declined to consider the as-applied challenge because the factual record was insufficient, but found NetChoice likely to prevail on its facial First Amendment, vagueness, and preemption claims and entered a preliminary injunction barring enforcement.
The Court’s Holding
The Eleventh Circuit affirmed the ruling that NetChoice had associational standing to sue on behalf of its member platforms. The court concluded that resolving the asserted free-speech challenge and granting prospective relief did not require the participation of individual members, even though the platforms differed in size, content, and technical capabilities.
The court nevertheless held that NetChoice had not carried its burden under Moody v. NetChoice, LLC for a facial First Amendment challenge. NetChoice failed to adequately identify the full range of SB 351’s applications and compare the law’s unconstitutional applications with its constitutional ones, including applications to platforms hosting speech that is unprotected or unprotected as to minors. The court therefore did not decide the merits of the First Amendment claim.
The court also rejected the other asserted grounds for preliminary relief. The district court violated the party-presentation principle by finding the phrase “commercially reasonable” unconstitutionally vague on a theory NetChoice had not presented. And Section 230 did not preempt the advertising restriction because it regulates platforms’ own use of minors’ personal information rather than treating them as publishers or speakers of third-party content. The court vacated the preliminary injunction and remanded for further proceedings.
Key Takeaways
- NetChoice had associational standing to seek prospective relief for its member platforms without requiring each member to participate.
- A facial First Amendment challenger must develop the statute’s full range of applications and show that unconstitutional applications substantially outweigh constitutional ones.
- Section 230 does not preempt a restriction directed at a platform’s own advertising practices rather than liability arising from third-party speech.
Why It Matters
The decision underscores the demanding evidentiary and analytical burden imposed by Moody on facial challenges to broadly applicable social-media laws. Showing that a law burdens protected expression in prominent applications is not enough; challengers must account for the statute’s entire sweep and weigh invalid applications against valid ones.
The ruling also permits Georgia’s challenged restrictions to proceed without the vacated preliminary injunction, while leaving open potential as-applied challenges and the underlying merits of NetChoice’s First Amendment theory on a more developed record.