Miss. Law Regulating Kids’ Access to Online Speech Violates First Amendment: NetChoice

Mississippi, by enacting its House Bill 1126, is the latest state to attempt to “unconstitutionally regulate” minors’ access to online speech, “and impair adults’ access along the way,” said NetChoice’s complaint Friday (docket 1:24-cv-00170) against Mississippi Attorney General Lynn Fitch (R) in U.S. District Court for Southern Mississippi.

The complaint seeks an order blocking Fitch from enforcing HB-1126 when it takes effect July 1. The measure violates “bedrock principles of constitutional law and unanimous precedent” from across the U.S., said the complaint. Mississippi Gov. Tate Reeves (R) signed HB-1126 into law April 30. NetChoice is suing Mississippi “to keep online communication safe and free and to ensure parents -- not politicians -- are in the driver’s seat for making decisions about what’s best for their family,” said Chris Marchese, director-NetChoice Litigation Center, in a statement.

The U.S. Supreme Court has repeatedly held that minors are entitled to a significant measure of First Amendment protection, said the NetChoice complaint. The government also may not impede adults’ access to speech “in its effort to regulate what it deems acceptable speech for minors,” it said. That’s why numerous courts “have enjoined state laws that similarly would restrict minors' and adults’ access to lawful online speech,” it said.

HB-1126, in whole and in part, “is unlawful for multiple reasons,” said the complaint. It would place multiple restrictions on minors and adults’ ability to access covered websites, block access altogether in some cases, and “directly regulate the protected speech that websites can disseminate,” it said.

HB-1126’s requirement that covered websites verify the ages of all Mississippi account holders -- minors and adults -- violates the First Amendment, said the complaint. Meeting that requirement “may include handing over personal information or identification” that many are unwilling or unable to provide “as a precondition to access and engage in protected speech,” it said.

It’s also a First Amendment violation for HB-1126 to require that a minor obtain parental consent as a prerequisite to creating an account, and thus accessing protected speech, on any covered website, said the complaint: “Governments cannot require minors to secure parental consent before accessing or engaging in protected speech.”

HB-1126's “vague requirement” that covered websites prevent or mitigate minors’ exposure to certain content- and viewpoint-based categories of speech is a further violation of the First Amendment, said the complaint. The requirement is also preempted by Section 230 of the Communications Decency Act, it said. HB-1126 would replace covered websites’ own voluntary and extensive content moderation efforts to address objectionable speech with “state-mandated censorship,” it said.

The “broad, subjective, and vague” categories of speech that HB-1126 requires websites to monitor and censor “could reach everything from classic literature, such as Romeo and Juliet and The Bell Jar, to modern media like pop songs by Taylor Swift, said the complaint. This requirement “will chill the dissemination of yet more speech on covered websites,” it said. Such “overbroad prior restraints” of speech violate the First Amendment, it said. Congress “expressly preempted” state laws requiring websites to monitor or block speech, or imposing liability for imperfect content moderation, when it enacted Section 230, it said.