738 F.Supp.3d 753
S.D. Miss.2024Background
- NetChoice, LLC, a trade association representing major internet platforms, challenged Mississippi House Bill 1126 (“H.B. 1126”), set to take effect July 1, 2024.
- H.B. 1126 requires digital service providers to verify the age of all users, mandate parental consent for known minors, and develop strategies to protect minors from harmful online content.
- NetChoice argued the law violates the First Amendment (facially and for overbreadth), is unconstitutionally vague under the Fourteenth Amendment, and is preempted by federal law (47 U.S.C. § 230).
- The Electronic Frontier Foundation filed an amicus brief supporting NetChoice, emphasizing the law’s burden on speech, privacy, and user anonymity.
- Mississippi’s Attorney General, Lynn Fitch, argued NetChoice lacked standing and H.B. 1126 addresses conduct, not speech, emphasizing the state’s compelling interest in protecting minors online.
- The court considered NetChoice’s motion for a preliminary injunction and temporary restraining order preventing enforcement of H.B. 1126.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing | NetChoice has associational and third-party standing for its members and their users. | NetChoice lacks standing; only financial harm or indirect user impacts. | NetChoice has associational and prudential standing. |
| First Amendment—Content-Based Restriction | The Act restricts access to user expression based on content/subject matter; triggers strict scrutiny. | Act regulates conduct, not speech; rational basis applies. | H.B. 1126 is content-based and subject to strict scrutiny. |
| Narrow Tailoring/Over- or Underinclusiveness | Act is over- and underinclusive, burdens adults and minors’ speech, less restrictive means exist. | Act is narrowly tailored to protect minors, a compelling interest. | Not narrowly tailored; Act is over- and underinclusive. |
| Vagueness (Due Process) | Definitions (e.g., “digital service provider”) are unclear and invite arbitrary enforcement. | Statute is clear and provides fair notice. | Act is impermissibly vague in key aspects. |
Key Cases Cited
- Reed v. Town of Gilbert, 576 U.S. 155 (content-based laws are subject to strict scrutiny regardless of motive)
- Brown v. Ent. Merchants Ass’n, 564 U.S. 786 (protecting minors is compelling, but laws must be narrowly tailored; content restrictions are closely scrutinized)
- Stanley v. Georgia, 394 U.S. 557 (First Amendment protects the right to receive information)
- Sable Commc’ns of California, Inc. v. F.C.C., 492 U.S. 115 (government must use least restrictive means to protect minors from harmful content)
- Grayned v. City of Rockford, 408 U.S. 104 (void for vagueness doctrine)
- Elrod v. Burns, 427 U.S. 347 (loss of First Amendment freedoms is irreparable injury)
- Manhattan Cmty. Access Corp. v. Halleck, 587 U.S. 802 (First Amendment applies against the states via the Fourteenth Amendment)