The U.S. Court of Appeals for the Fifth Circuit ruled July 24 that Section 230 of the Communications Decency Act preempts the content-filtering core of Texas House Bill 18, the Securing Children Online through Parental Empowerment Act, leaving a preliminary injunction in place that bars the state from enforcing that mandate against social media companies. In the same decision the court threw out a broader set of injunctions won by student, advertising, and individual challengers, holding they lacked standing to sue. The panel affirmed in part, vacated in part, and remanded the consolidated cases for further proceedings.
Circuit Judge Douglas wrote for the court, joined by Circuit Judge Higginbotham. Circuit Judge Ho concurred in the judgment in part and dissented in part. H.B. 18, known as the SCOPE Act, took effect September 1, 2024, and imposes obligations on covered "digital service providers," or DSPs, that run social media services. Its monitoring and filtering requirement directs those providers to develop and implement a strategy to prevent known minors from being exposed to material the statute deems harmful, including content that promotes, glorifies, or facilitates suicide, self-harm, eating disorders, substance abuse, bullying, harassment, grooming, trafficking, and sexual exploitation. The law may be enforced by the Consumer Protection Division of the Texas Attorney General's Office or through suits by the parent of a minor affected by a violation.
The appeal consolidated two challenges. The Computer and Communications Industry Association and NetChoice, whose members include Google, Meta, and X along with the owners of Snapchat, Nextdoor, and Pinterest, targeted the monitoring and filtering requirement. A second group, Students Engaged in Advancing Texas, a 16-year-old identified as M.F., the Austin advertising firm Ampersand Group, and Texas resident Brandon Closson, challenged that requirement plus the law's targeted ads, unlawful ads, and age-verification provisions. The federal district court in the Western District of Texas had enjoined several provisions in both cases, and Attorney General Paxton appealed.
The court first held that the student and advertising plaintiffs lacked standing to challenge the monitoring, targeted ads, and unlawful ads requirements. Because those parties are not themselves regulated by H.B. 18, Douglas wrote, they had to make a clear showing that the directly regulated providers "will likely react in predictable ways" to the law in a manner posing "a substantial risk of censoring their speech." The court found their predictions of censorship and self-censorship too speculative, resting on assumptions about how platforms might read the statute rather than concrete evidence of imminent harm. Their listening-based theories failed as well, the court said, because they alleged no "concrete, specific connection to the speaker" of the kind Supreme Court precedent requires.
The panel also held that the same plaintiffs' challenge to the age-verification requirement was now foreclosed by the Supreme Court's 2025 decision in Free Speech Coalition v. Paxton, which upheld a materially similar age-verification rule for pornographic websites as surviving intermediate scrutiny. The challengers did not oppose the state on that point, so the district court's order enjoining the age-verification requirement was vacated.
Turning to the trade groups, the court held that the monitoring and filtering requirement is preempted by Section 230(c)(1), which bars treating an interactive computer service as the publisher or speaker of information provided by someone else. Enforcement actions under the requirement, Douglas wrote, are claims that stem from providers' "monitoring, screening, and deletion of content" and are therefore squarely preempted. The court rejected Paxton's argument that the law merely creates affirmative statutory duties, reasoning that a state could otherwise re-encode preempted tort law as statutory obligations and evade Section 230 entirely. Quoting its earlier Free Speech Coalition ruling, the panel observed that "publishers do not filter audiences; they filter content." Having resolved the case on statutory grounds, the court declined to reach the First Amendment questions.
Ho agreed that the injunction should be lifted as to the student and advertising plaintiffs but would have gone further and struck it down completely. The SCOPE Act, he wrote, "protects children from the dangers of social media," and he argued the majority misread Section 230. Drawing on the Supreme Court's decision in Moody v. NetChoice and the Fifth Circuit's rulings in A.B. v. Salesforce and Little v. Llano County, Ho contended that a platform's curation of content is its own first-party speech, distinct from the third-party posts it hosts, and so falls outside Section 230's shield. The statute, he wrote, regulates "first-party speech, not third-party speech." He also invoked Justice Thomas's warning that platforms use the curation distinction to turn Section 230 into a "get-out-of-jail free card," and said he would have certified questions about the SCOPE Act's meaning to the Supreme Court of Texas. "So I would vacate the injunction in its entirety," he wrote.
For now, the ruling frees social media providers operating in Texas from the monitoring and filtering mandate while the injunction stands, and it lifts the separate age-verification injunction the state had been blocked from enforcing. For the student, minor, and advertising challengers, the decision is a setback, though the court noted their standing showing may not be beyond repair and sent their case back for further proceedings. The panel affirmed the relief granted to the trade groups, vacated the relief granted to the other challengers, and remanded.