In Friday’s ruling, judges noted the difference between the age-verification requirement in the porn website case and the content-filtering rule in the new case. “Unlike the age-verification requirement we addressed in that case, [the SCOPE Act’s] monitoring and filtering requirement is all about filtering content, and is thus preempted,” they found.
The 5th Circuit and other appeals courts “have interpreted Section 230 to provide DSPs with ‘broad immunity’ from ‘all claims stemming from their publication of information created by third parties,’” the 5th Circuit panel said. The state law required websites to prevent known minors’ exposure to material defined as obscene under Texas law, and other content “that promotes, glorifies, or facilitates” suicide, self-harm, eating disorders, substance abuse, stalking, bullying, harassment, grooming, trafficking, and “child pornography, or other sexual exploitation or abuse.”
Paxton argued that the Texas law imposes no liability for harms from the content they host. The law is not preempted because it “imposes compliance duties, not publisher liability,” and aligns with the child-protection goals of Section 230, he argued.
Other parts of law can be enforced
5th Circuit judges didn’t buy Paxton’s argument. They said the law provides for enforcement against violations by the attorney general’s office and lets parents of minors bring actions for declaratory judgments and injunctions.
“Actions to enforce the monitoring and filtering requirement are claims stemming from DSPs’ actions as publishers, that is, from their monitoring, screening, and deletion of content, and are thus squarely preempted by Section 230,” the ruling said.
Friday’s decision wasn’t a total loss for Paxton because the 5th Circuit found that a student group did not have standing to challenge the Texas law, which means other parts of the law can be enforced. These require platforms to make users register their ages before creating accounts, to not display targeted advertisements to known minors, to make commercially reasonable efforts to prevent advertisers from targeting known minors with ads for illegal products or activities, and to verify that users are 18 or older if more than one-third of the content on the platform is obscene.
