NetChoice v. CarrNetChoice v. Carr
“This сase presents a conflict between one of society‘s most cherished rights—freedom of expression—and one of government‘s most profound obligations—the protection of minors.” Am. Booksellers v. Webb, 919 F.2d 1493, 1495 (11th Cir. 1990) (quoting Am. Booksellers Ass‘n v. Webb, 643 F.Supp. 1546, 1547 (N.D. Ga. 1986)). The Supreme Court has long affirmed that the First Amendment carries no age limit. Rather, the “scrupulous protection of Constitutional freedoms of the individual” is vital “if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.” W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943). This lofty ideal is particularly potent in the digital age, as people of diverse backgrounds and viewpoints—and of all ages—have instant access to each other‘s ideas.
The Protecting Georgia‘s Children on Social Media Act of 20241 is undoubtedly aimed at protecting young people from these dangers. In attempting to do so, it also implicates at least three distinct First Amendment interests: (1) it restricts the rights of Georgia‘s minors to access a vital forum of information and conversation; (2) it chills the rights of all Georgians to engage in anonymous speech online; and (3) it impedes social media platforms’ ability to communicate with their users.2 Those burdens cannot comport with the First Amendment.
This Court takes seriously the acute harm that social media may potentially cause young people. Young people‘s pervasive exposure to social media has also been accompanied by escalating mental health challenges. That said, the core
Here, the State‘s proposed solution is constitutionally infirm. The State seeks to erect barriers to speech that cannot withstand the rigorous scrutiny that the Constitution requires, and the inapt tailoring of the law—which is rife with exemptions that undermine its purpose—dooms its constitutionality and calls into question its efficacy. For these reasons, the Plaintiff‘s Motion for a Preliminary Injunction [Doc. 5] is GRANTED.
I. BACKGROUND
A. Social Media & Children
“Social-media platforms . . . have gone from unheard-of to inescapable. They structure how we relate to family and friends, as well as to businesses, civic organizations, and governments.” Moody, 603 U.S. at 716. Social media‘s omnipresence is acutely felt by young Americans. “Up to 95% of youth ages 13–17 report using a social media platform, with more than a third saying they use social media ‘almost constantly.‘” Off. of the Surgeon Gen., Social Media and Youth Mental Health: The U.S. Surgeon General‘s Advisory 4 (2023), https://perma.cc/K5AC-55HG.
To be sure, the benefits of social media for both children and adults are myriad—including remaining connected to friends and family and engaging in
In April 2024, Governor Brian Kemp signed into law the Protecting Georgia‘s Children on Social Media Act of 2024 (“SB 351” or “the Act“). The legislation made sweeping changes to the way minors can interact with social media companies, created new regulations affecting how those companies may serve minors, аnd implemented robust educational requirements about social media. Most relevant here, however, are three provisions that comprise the heart of Section 3-1—the section Plaintiff is challenging.
First, the Act requires that “[t]he provider of a social media platform shall make commercially reasonable efforts to verify the age of account holders with a level of certainty appropriate to the risks that arise from the social media platform‘s information management practices or shall apply the special conditions applied to minors [under age 16] to all account holders.”
The Act is enforceable exclusively by Defendant, the Georgia Attorney General, who may seek up to $2,500 for each uncured violation of the law.
The provisions at issue all hinge on the statute‘s definition of a “sociаl media platform.” SB 351 defines a “social media platform” as “an online forum that allows an account holder to create a profile, upload posts, view and listen to posts, form mutual connections, and interact publicly and privately with other account holders and users.”
C. Concomitant Litigation
Georgia is hardly the first state to attempt the thorny task of regulating minors’ social media use, and this Court is not the first to consider such legislation. A handful of states have enacted similar laws aimed at protecting minors online, often by requiring some form of age verification and/or parental consent for minors seeking to use social media. NetChoice has challenged at least eight other state laws—in Texas, Ohio, Arkansas, California, Utah, Florida, Mississippi, and
D. Procedural History
Plaintiff NetChoice filed suit on May 1, 2025, and moved for a preliminary injunction that day. (Docs. 1; 5). The State filed its opposition to the preliminary injunсtion on May 16, and Plaintiff filed its reply on May 23. (Docs. 23; 26). On June 3, the Court held a hearing on Plaintiff‘s Motion, where both parties presented argument. (Doc. 27). The Court also stayed deadlines for Defendant‘s responsive pleadings pending the outcome of Plaintiff‘s Motion. (Doc. 21).
II. STANDING
The Court first addresses the threshold issue of Plaintiff‘s standing. “[T]he core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560
A. Associational Standing
NetChoice‘s first theory of standing is associational standing to sue on behalf of its members. Baughcum v. Jackson, 92 F.4th 1024, 1031 (11th Cir. 2024). To benefit from associational standing, an organization must establish that: (1) the organization‘s members would otherwise have standing to sue, (2) the interests the lawsuit seeks to protect are germane to the organization‘s purpose, and (3) the claims can be resolved and the requested relief granted without the participation of individual members. Id.
1. Members’ Standing to Sue
The Court must start by determining whether NetChoice‘s members would independently have standing to sue. To demonstrate standing, a plaintiff must show (1) that he suffered an injury in fact that is “concrete, particularized, and actual or imminent;” (2) that the injury is traceable to—i.e., likely caused by—the defendant; and (3) that the injury would likely be redressed by the judicial relief
First, NetChoice‘s members could easily establish the requirement of injury-in-fact. As a “trade association for internet companies” NetChoice members include social media platforms like Meta (parent company of Facebook and Instagram), Pinterest, Reddit, X, YouTube, and Dreamwidth. (Compl., Doc. 1 ¶¶ 12, 16). These members are “social media platforms” regulated by SB 351, as they are online fora that allow account holders “to create a profile, upload posts, view and listen to posts, form mutual connections, and interact publicly and privately with other account holders and users.”
As covered “social media platforms,” these companies face imminent harm from the enforcement of the Act. “[T]he law is aimed directly at [these companies], who, if their interpretation of the statute is correct, will have to take significant and
In addition to their “well-founded fear” of economic harm, NetChoice‘s members are likely to suffer an independent harm to their speech rights. “[T]o determine whether a First Amendment plaintiff has standing, we simply ask whether the operation or enforcement of the government policy would cause a reasonable would-be speaker to self-censor—even where the policy falls short of a direct prohibition against the exercise of First Amendment rights.” Speech First, Inc. v. Cartwright, 32 F.4th 1110, 1120 (11th Cir. 2022) (cleaned up). And the Supreme Court has affirmed that “the First Amendment offers protection when an entity [is] engaging in expressive activity, including compiling and curating others’ speech.” Moody, 603 U.S. at 731. Here, the Act threatens social media platforms’ ability to communicate with young audiences and burdens their ability to communicate with adults. Those burdens constitute First Amendment injuries. See, e.g., Comput. & Commc‘ns Indus. Ass‘n v. Uthmeier, 2025 WL 1570007, at *8 n.8 (N.D. Fla. June 3, 2025) (“In addition to the economic cost, these compliance measures impose a First Amendment cost on YouTube by ‘hinder[ing] YouTube‘s
Second, there is no dispute that the traceability requirement is met. After all, the Act states that it may only be enforced by Defendant, the Georgia Attorney General.
Third, the redressability element is met, as a court order enjoining enforcement of the Act (whether universally or against specific NetChoice members) would shield the members from the relevаnt compliance costs and from chilling of their First Amendment rights. Defendant argues that “even if SB 351 were unconstitutional as to some NetChoice members . . . there would be no way to properly tailor relief to redress that theoretical harm.” (Opp‘n, Doc. 23 at 18). But this contention rests on the flawed proposition that this suit requires individual platforms’ participation one by one. See infra at 12–13. It is also irrelevant, as today the Court issues a Preliminary Injunction based primarily on Plaintiff‘s facial challenge to the law—meaning that the injunction bars the State from enforcing the Act against all covered platforms.
The State also contends that NetChoice‘s members lack standing because it is the platform users’ First Amendment interests—rather than their own—that are under threat. (Opp‘n, Doc. 23 at 18–21). This position ignores the full scope of the law‘s effect. NetChoice‘s members will suffer a concrete and particularized economic harm and will have their own ability to communicate with their users chilled. Those harms—distinct from the First Amendment burdens inflicted on
2. Germane Interests
Having established that NetChoice‘s members would otherwise have standing to sue, the Court turns to the other two elements of associational standing. As to the second element, the interests this suit seeks to protect are certainly germane to NetChoice‘s central organizational purрose. “NetChoice‘s mission is to promote online commerce and speech and to increase consumer access and options via the internet, while minimizing burdens that could prevent businesses from making the internet more accessible and useful.” (Compl., Doc. 1 ¶ 12). Given the potential for this law to burden both minors’ and adults’ access to major online forums through age verification and parental consent, as well as the compliance burdens it threatens to place on social media platforms, this challenge precisely aligns with NetChoice‘s core purpose.
3. Participation of Members
Finally, the constitutionality of SB 351 can be determined without the participation of NetChoice‘s individual members, particularly in the context of Plaintiff‘s facial challenge.7 The State contends that the Court is unable to grant the
B. Standing on Behalf of Users
Based on its associational standing established above, NetChoice has met the Article III requirement to bring suit herein. There is also, however, the issue of NetChoice‘s appropriate capacity to assert the interests of not only its own members, but also its members’ users—i.e., the children and adults whose speech rights will be individually impacted by the Act. “[V]endors and those in like positions have been uniformly permitted to resist efforts at restricting their operations by acting as advocates of the rights of third parties who seek access to their market or function.” Craig v. Boren, 429 U.S. 190, 195 (1976) (holding licensed beer vendor had standing to assert constitutional interests of men under 21, who were barred from buying low-alcohol beer). That is the situation here: NetChoice acts on behalf of its members, who—in this case—are appropriately positioned to represent the interests of users “who seek access to their . . . function.” Id.; see also NetChoice, LLC v. Yost, 2025 WL 1137485, at *13 (S.D. Ohio Apr. 16, 2025) (“Paradoxically, it is precisely NetChoice members’ financial
NetChoice‘s ability to assert the rights of users is distinct given the nature of its claims. “[I]n First Amendment cases we have relaxed our rules of standing without regard to the relationship between the litigant and those whose rights he seeks to assert precisely because application of those rules would have an intolerable, inhibitory effect on freedom of speech.” Eisenstadt v. Baird, 405 U.S. 438, 446 n.5 (1972) (holding advocate who distributed contraception had standing to challenge contraceptive restriction on behalf of unmarried people who were targeted by the law); see also Uthmeier, 2025 WL 1570007, at *9 (“When a plaintiff has standing and a cause of action to assert its own First Amendment rights, it can also raise the rights of third parties to support its merits arguments.” (citing Warth v. Seldin, 422 U.S. 490, 501 (1975))).
At oral argument, the State asserted that “the alleged constitutional harm [to users] is just too far removed” for NetChoice to assert. (Hearing Tr., Doc. 29 at 26:8). The State relies on Mata Chorwadi, Inc. v. City of Boynton Beach, 66 F.4th 1259 (11th Cir. 2023), where the Eleventh Circuit held that a hotel that was compelled to put up “chronic nuisance” signs could not assert the First Amendment rights of its guests, who it alleged were discouraged from calling 911. But there, the hotel was not able to assert its patrons’ rights because there was no
III. PRELIMINARY INJUNCTION
Having recognized Plaintiff‘s standing to bring suit, the Court turns to the merits of the pending Motion for a Preliminary Injunction [Doc. 5]. “To receive a preliminary injunction, the plaintiff must clearly establish the following requirements: ‘(1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable injury; (3) that the threatened injury to the plaintiff outweighs the potential harm to the defendant; and (4) that the injunction will not disserve the public interest.‘” Keister v. Bell, 879 F.3d 1282, 1287 (11th Cir. 2018) (quoting Palmer v. Braun, 287 F.3d 1325, 1329 (11th Cir. 2002)). “A preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movant clearly establishes the burden of persuasion as to the four requisites.” Id. (quoting ACLU of Fla.,Inc. v. Miami–Dade Cnty. Sch. Bd., 557 F.3d 1177, 1198 (11th Cir. 2009)). “At the preliminary injunction stage, a district court may rely on affidavits and hearsay materials which would not be admissible evidence for a permanent injunction, if the evidence is ‘appropriate given the
A. Substantial Likelihood of Success on the Merits
The Court‘s analysis focuses on Plaintiff‘s likelihood of success on the merits. “If the movant is unable to establish a likelihood of success on the merits, a court need not consider the remaining conditions prerequisite to injunctive relief.” Johnson & Johnson Vision Care, Inc. v. 1-800 Contacts, Inc., 299 F.3d 1242, 1247 (11th Cir. 2002). “When a plaintiff brings multiple claims, a reviewing court must consider the plaintiff‘s likelihood of success on each claim in deciding a plaintiff‘s motion for preliminary injunction. . . . However, a plaintiff need only demonstrate a substantial likelihood of success on one of its claims to obtain a preliminary injunction.” HOA Franchising, LLC v. MS Foods, LLC, 2023 WL 9692401, at *8 (N.D. Ga. Dec. 20, 2023) (cleaned up). The Court thus considers each of Plaintiff‘s claims in turn.
1. First Amendment Challenge
a. Facial vs. As-Applied Challenge
Plaintiff primarily contends that SB 351 violates the First Amendment. Plaintiff brings both facial and as-applied First Amendment challenges to the Act. (Mot. for PI, Doc. 5-1 at 18). However, the Court finds that an as-applied challenge is premature in this context. While “it is possible to bring an as-applied challenge in a pre-enforcement review of a statute that has yet to be applied . . . there are few situations where that type of challenge would prevail.” GeorgiaCarry.Org, Inc. v.
In First Amendment facial challenges, “[t]he question is whether ‘a substantial number of [the law‘s] apрlications are unconstitutional, judged in relation to the statute‘s plainly legitimate sweep.‘” Moody, 603 U.S. at 723 (quoting Ams. for Prosperity Found. v. Bonta, 594 U.S. 595, 615 (2021)). In Moody, the Plaintiff here challenged two state laws that dictated how social media platforms could engage in content moderation. There, the Supreme Court laid out a two-step analysis to evaluate such challenges:
When considering a facial challenge under the First Amendment, we must first “determine what the law covers.” Next, we must “decide which of the laws’ applications violate the First Amendment, and . . . measure them against” those that do not. In so doing, we “must explore the laws’ full range of applications—the constitutionally impermissible and permissible both—and compare the two sets.”
Singleton v. City of Montgomery, 2025 WL 1042101, at *2 (11th Cir. Apr. 8, 2025) (quoting Moody, 603 U.S. at 725–26) (citations omitted). The Supreme Court remanded the consolidated cases in Moody, finding that neither the district nor appellate courts below properly applied this inquiry. Moody, 603 U.S. at 743 (“[O]n remand, each court must evaluate the full scope of the law‘s coverage. It must then decide which of the law‘s applications are constitutionally permissible and which are not, and finally weigh the one against the other.“).
Next, the Court must “explore the law[‘s] full range of applications—the constitutionally impermissible and permissible both—and compare the two sets.” Moody, 603 U.S. at 726. But because the Act raises the same First Amendment issues in each application, the “full range of [the Act‘s] applications” are those “constitutionally impermissible” ones. See, e.g., Yost, 2025 WL 1137485, at *14
b. Standard of Review
The Court must determine the level of First Amendment review to apply to the provisions at issue. Laws subject to intermediate scrutiny “must be ‘narrowly tailored to serve a significant governmental interest, and . . . leave open ample alternative channels for communication of the information.‘” LaCroix v. Town of Fort Myers Beach, 38 F.4th 941, 950 (11th Cir. 2022) (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)). Strict scrutiny, conversely, “requires the Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.” Reed v. Town of Gilbert, 576 U.S. 155, 171 (2015) (quoting Ariz. Free Enter. Club‘s Freedom Club PAC v. Bennett, 564 U.S. 721, 734 (2011)). Strict scrutiny is “the most demanding test known to constitutional law.” City of Boerne v. Flores, 521 U.S. 507, 534 (1997).
“[T]he first question we need to consider is whether the ordinances are content-based regulations. If they are, we analyze them under strict scrutiny; if not, they receive the lighter touch of intermediate scrutiny . . . .” Otto v. City of Boca Raton, 981 F.3d 854, 861 (11th Cir. 2020). “Government regulation of speech is content based if a law applies to particular speech because of the topic discussed
NetChoice argues that the Act‘s central definition of “social media platforms” is a content-based restriction, “rendering all of the Act‘s speech regulations,” which are dependent on that definition, “content-based.” (Mot. for PI, Doc. 5-1 at 30). As a reminder, the Act defines a “social media platform” as an “online forum that allows an account holder to create a profile, upload posts, view and listen to posts, form mutual connections, and interact publicly and privately with other account holders and users.”
Such term shall not include an online service, website, or application where the predominant or exclusive function is any of the following:
(A) Email;
(B) A service that, pursuant to its terms of use, does not permit minors to use the platform and utilizes commercially reasonable age assurance mechanisms to deter minors from becoming account holders;
(D) News, sports, entertainment, or other content that is preselected by the provider and not user generated, and any chat, comment, or interactive functionality that is provided incidental to or directly or indirectly related to such content;
(E) Online shopping or ecommerce, if the interaction with other users or account holders is generally limited to the ability to upload a post and comment on reviews, the ability to display lists or collections of goods for sale or wish lists, and other functions that are focused on online shoрping or ecommerce rather than interaction between users or account holders;
(F) Interactive gaming, virtual gaming, or an online service, website, or application that allows the creation and uploading of content for the purpose of interactive gaming, educational entertainment, or associated entertainment, and communications related to that content;
(G) Photograph editing that has an associated photograph hosting service if the interaction with other users or account holders is generally limited to liking or commenting;
(H) Single-purpose community groups for public safety if the interaction with other users or account holders is limited to that single purpose and the community group has guidelines or policies against illegal content;
(I) Business-to-business software;
(J) Teleconferencing or videoconferencing services that allow reception and transmission of audio and video signals for real-time communication;
(K) Cloud storage;
(L) Shared document collaboration;
(M) Cloud computing services, which may include cloud storage and shared document collaboration;
(N) Providing access to or interacting with data visualization platforms, libraries, or hubs;
(O) Permitting comments on a digital news website if the news content is posted only by the provider of the digital news website;
(Q) Academic, scholarly, or genealogical research where the majority of the content is created or posted by the provider of the online service, website, or apрlication and the ability to chat, comment, or interact with other users is directly related to the provider‘s content;
(R) Internet access and broadband service;
(S) A classified advertising service in which the provider of the online service, website, or application is limited to all of the following:
(i) Permitting only the sale of goods;
(ii) Prohibiting the solicitation of personal services;
(iii) Posting or creating a substantial amount of the content; and
(iv) Providing the ability to chat, comment, or interact with other users only if it is directly related to the provider‘s content;
(T) An online service, website, or application that is used by or under the direction of an educational entity, including a learning management system, student engagement program, or subject- or skill-specific program, where the majority of the content is created or posted by the provider of the online service, website, or application and the ability to chat, comment, or interact with other users is directly related to the provider‘s content;
(U) Peer-to-peer payments, provided that interactions among users or account holders are generally limited to the ability to send, receive, or request funds; like or comment on such transactions; or other functions related to sending, receiving, requesting, or settling payments among users or account holders; or
(V) Career development opportunities, including professional networking, job skills, learning certifications, and job posting and application services.
The State provides two rejoinders to the idea that the Act is a content-based regulation. First, it argues that “SB 351 does not regulate speech—it regulates the extent to which children can contract to bеcome account holders on social media
In a similar vein, Defendant likens the Act to permissible ordinances restricting minors’ access to specific “adult” spaces, including bars and strip clubs. (Opp‘n, Doc. 23 at 23–24 (citing Indigo Room, Inc. v. City of Fort Myers, 710 F.3d 1294 (11th Cir. 2013) (upholding ordinance that barred individuals under 21 from entering bars without a parent); Wacko‘s Too, Inc. v. City of Jacksonville, 134 F.4th 1178 (11th Cir. 2025) (upholding ordinance that barred individuals under 21 from performing in strip clubs))). Both of these cases are distinguishable. In Indigo Room, the Eleventh Circuit specifically held that the ordinance “[did] not infringe on Appellants’ speech in the first instance.” 710 F.3d at 1300. That idea—that the law does not sufficiently implicate speech rights to invoke First Amendment protections—is inapplicable to SB 351, which regulates a primary forum of speech. In Wacko‘s Too, meanwhile, the Eleventh Circuit made clear that it found the
To be sure, the ordinance‘s age restriction feels content-based. . . . [But] when the purpose of an adult entertainment ordinance is to ameliorate the secondary effects of adult businesses, intermediate scrutiny applies. . . . “[A]lthough these ordinances are not strictly content-neutral, they are simply treated as such.”
Wacko‘s Too, 134 F.4th at 1186 (emphasis in original) (quoting Zibtluda, LLC v. Gwinnett County, 411 F.3d 1278, 1285 (11th Cir. 2005)). That exception does not apply here because, simply stated, SB 351 is not in the business of regulating adult entertainment venues.
Defendant further defends the Act by arguing that the law regulates based on the creator of a platform‘s content, rather than the substance of that content. As the State indicated at oral argument, “[w]hat Senate Bill 351 does with these exceptions is not discriminating based on content[,] but whether or not the user or the provider is providing the content. And that is a really important narrowly tailoring feature to this statute.” (Hearing Tr., Doc. 29 at 69:23–70:3; Opp‘n, Doc. 23 at 25–26). For example, SB 351 would presumably apply to the Georgia Bulldogs Reddit forum, which features user-generated content. But it would exempt Barstool Sports, which features provider-generated content. It would apply to news coverage posted by users on X, but not news coverage posted by The New York Times to its own liveblog.
Of the district courts to have considered state laws regulating minors’ social media access, the majority have agreed with this Court that the laws are content-based restrictions subject to strict scrutiny. See Yost, 2025 WL 1137485, at *17–20; Griffin, 2025 WL 978607, at *7–10; Fitch, 2025 WL 1709668, at *8; Comput. & Commc‘ns Indus. Ass‘n v. Paxton, 747 F. Supp. 3d 1011, 1032–34 (W.D. Tex. 2024); NetChoice, LLC v. Bonta, 770 F.Supp.3d 1164, 1185–92 (N.D. Cal. 2025); NetChoice, LLC v. Reyes, 748 F. Supp. 3d 1105, 1121–24 (D. Utah 2024). But one—our sister court in the Northern District of Florida—found that state‘s law likely to
c. Survival Under Strict Scrutiny
Because all of Section 3-1 relies on the Act‘s definition of “social media platforms,” it is intrinsically content based, including each of the three key provisions. See
This Court does not intend to minimize either the established detriments of social media or the State‘s legitimate interest in protecting young people. Nor is
i. Burdens on Speech
First, and most crucially, the Parental Consent Provision (which, itself, relies on the operation of the Age Verification Provision) would dramatically curb minors’ ability to speak and access to speech. The Supreme Court has, for decades, affirmed the importance of the First Amendment rights of young people. See, e.g., Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969) (holding students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate“). But the Act would create a significant—and, for at least some young people, insurmountable—barrier to entry for online speech. The internet broadly—and social media specifically—represents “the most important place[] . . . for the exchange of views.” Packingham v. North Carolina, 582 U.S. 98, 104 (2017). For this reason, “the right of parents to enlist the aid of the state to shield their children from ideas of which the parents disapprove cannot be plenary [].” Am. Amusement Mach. Ass‘n v. Kendrick, 244 F.3d 572, 577 (7th Cir. 2001) (Posner, J.).
Brown made this more than clear. There, the Supreme Court considered—and struck down—a California law that prohibited the sale or rental of “violent video games” to minors. The court understood the law as a content-based regulation subject to strict scrutiny, and found it insufficiently tailored to meet that rigorous standard.12 Brown, 564 U.S. at 786. In short, Brown held that a state may not “prevent children from hearing or saying anything without their parents’ prior consent.” Id. at 795 n.3. Defendant has not explained how SB 351 is distinct, merely saying that Brown addressed a “facially content-based restriction” while the Act merely “prohibits minors from forming an account on certain sites . . . .” (Opp‘n, Doc. 23 at 26). But as the Court has already explained supra at 23–24, disguising a speech regulation as a commercial regulation does not exempt it from First Amendment scrutiny—as the Brown court‘s invalidation of a commercial regulation makes clear. In short, the Supreme Court has explicitly held that regulations so severely burdening young people‘s First Amendment rights cannot withstand strict scrutiny. Defendant has not rebutted that principle.
“[I]s the age verification going to require government identification? [T]he answer to that is clearly no,” according to the State. (Hearing Tr., Doc. 29 at 11:20–12:2). But that conclusion is not so clear.13 (See, e.g., Declaration of Alexandra N. Veitch (“Veitch Decl.“), Doc. 5-5 ¶ 45 (“[G]iven the lack of clarity regarding what level of certainty would be appropriate and the lack of a meaningful safe harbor with respect to age verification, businesses will be incentivized or even compelled
The Court agrees that, given the Act‘s novelty and lack of clarity, the Age Verification Provision would incentivize social media platforms to err toward the side of caution to avoid liability. The most cautious option, it seems, would be to collect government-issued identification. And the State‘s own admission that the Act would be applied disparately implies that for some companies, collecting identification would be expected as a “commercially reasonable” compliance mechanism. (Hearing Tr., Doc. 29 at 19:23–20:2 (“[T]he truth is, as this statute might get applied, there is a conceivable world where what is commercially reasonable for Facebook, you know, one of the largest corporations in the world, might be different than what is commercially reasonable for Dreamwidth.“) (counsel for the State)).
Even the State‘s own expert indicates that “[a]ge verification and age inference can be achieved by, among other methods, reference to drivers’ licenses, passports, electoral rolls, credit reports, cellphone-network records, banking, and credit-card records” or by “creat[ing] a digital identity.” (Declaration of Tony Allen
“Even when a statute only indirectly limits protected adult speech—such as by making it more difficult for adults to access . . . the law still must do so narrowly and in proportion to the government‘s interest in shielding children . . . .” HM Fla.-ORL, LLC., 137 F.4th at 1230. The Age Verification Provision, by contrast, imposes a sweeping burden on adults’ access to speech by requiring “commercially reasonable” age verification mechanisms for all users, creating a broad-reaching chilling effect. See, e.g., Griffin, 2025 WL 978607, at *8. “That‘s how age verification works,” the State maintains. (Opp‘n, Doc. 23 at 31–32). But that wide
The Act‘s Age Verification and Parental Consent Provisions also create serious data privacy vulnerabilities by requiring social media platforms to collect immense amounts of personal data—whether it be government identification, or photos and recordings for biometric verification. The Parental Consent Provision, for example, contemplates confirming parental consent by “[c]ollecting information related to the minor‘s parent‘s or guardian‘s government issued identification or finanсial or payment card information and deleting such information after confirming the identity of the parent or guardian.”
At oral argument, the State pointed out that the Act requires platforms to delete government identification or financial information. (See Hearing Tr., Doc. 29 at 29:17–24 (citing
Separately, but equally important, a universal age verification requirement for Georgians using social media would potentially all but kill anonymous speech online. The Supreme Court has long recognized that “an author‘s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.” McIntyre v. Ohio Elections Comm‘n, 514 U.S. 334, 342 (1995); see also Talley v. California, 362 U.S. 60, 64 (1960) (“Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind.“). “Age-verification schemes . . . ‘are not only an additional hassle,’ but ‘they also require that website visitors forgo the anonymity otherwise available on the internet.‘” Griffin, 2025 WL 978607, at *8 (quoting Am. Booksellers Found. v. Dean, 342 F.3d 96, 99 (2d Cir. 2003)); see also ACLU of Ga. v. Miller, 977 F. Supp. 1228, 1235 (N.D. Ga. 1997) (preliminarily enjoining state law barring individuals from “falsely identify[ing]” themselves online, which “induced self-
Third, the Act would also impose significant compliance costs upon social media platforms, threatening their ability or willingness to access audiences. The Eleventh Circuit has explicitly recognized the chilling effect of compliance costs—even to the point of silencing speakers altogether. HM Fla.-ORL, LLC, 137 F.4th at 1239 (“Whether online or not, age-verification requirements ‘impose costs’ on speakers or the venues that host them: the costs of checking the identification of those who have it and keeping out those who don‘t. This cost would, on the margin, make some performances financially nonviable.” (citations omitted)). That risk of financial nonviability—though it may seem implausible for those social media platforms operated by billion-dollar technology companies—poses a real threat for smaller platforms like Dreamwidth, which represents that “[t]he ongoing support burden the Act would impose upon us would also be impossible for us to meet at
In addition to these significant burdens on the First Amendment rights of social media platforms, young people, and all users, SB 351 would also create practical difficulties for parents in Georgia. As the Court expressed at oral argument, the law will require parents to expend time and effort to provide consent for each and every social media platform a young person wants to use. (Hearing Tr., Doc. 29 at 64:4–65:20). Based on the acceptable mechanisms outlined in the Act, some platforms may require only a signed form or phone call; others may require a video call, or provision of government-issued identification or financial information. This is not an insignificant request of parents—especially when multiplied by the number of vаrious social media platforms a young person may cycle through.
Perhaps more concerning, however, is the imposition of state requirements on how parents raise their children. “Th[e] primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.” Wisconsin v. Yoder, 406 U.S. 205, 232 (1972) (striking down law mandating public school attendance). But the Act creates a level of state
ii. Tailoring Concerns
Weighing these significant burdens on speech, the Court finds that the Act suffers from serious tailoring issues that doom its ability to survive strict scrutiny. “When the Government restricts speech, the Government bears the burden of proving the constitutionality of its actions.” FEC v. Cruz, 596 U.S. 289, 305 (2022) (quoting McCutcheon v. FEC, 572 U.S. 185, 210 (2014)). And to survive the rigors of strict scrutiny, “the Government [must] prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.” Reed, 576 U.S. at 171. Narrow tailoring requires the government to employ the least restrictive alternative to further its interests. United States v. Playboy Ent. Grp., Inc., 529 U.S. 803, 813 (2000).
As Justice Scalia potently articulated in Brown, laws that facе tailoring issues on both ends of the spectrum rarely survive strict scrutiny:
California‘s legislation straddles the fence between (1) addressing a serious social problem and (2) helping concerned parents control their children. Both ends are legitimate, but when they affect First Amendment rights they must be pursued by means that are neither seriously underinclusive nor seriously overinclusive. As a means of protecting children from portrayals of violence, the legislation is seriously underinclusive, not only because it excludes portrayals other than video games, but also because it permits a parental or avuncular veto. And as a means of assisting concerned parents it is seriously overinclusive because it abridges the First Amendment rights of young people whose parents (and aunts and uncles) think violent video games are a harmless pastime. And the overbreadth in achieving one goal is not cured by the underbreadth in achieving the other. Legislation such as this, which is neither fish nor fowl, cannot survive strict scrutiny.
Brown, 564 U.S. at 805 (citations omitted). The Act is similarly flawed: it is both overinclusive and underinclusive.
“Underinclusiveness raises serious doubts about whether the government is in fact pursuing the interest it invokes[.]” Brown, 564 U.S. at 802. Perhaps the most blatant way in which the Act is underinclusive is its 22 exemptions.
In the same vein, the law‘s “commercially reasonable” standard of enforcement—though apparently designed to ease compliance burdens—only further reveals its fatal under-inclusiveness. Again, SB 351 mandates that “[t]he provider of a social media platform shall make commercially reasonable efforts to verify the age of account holders with a level of certainty appropriate to the risks that arise from the social media platform‘s information management practices.”
[T]he truth is, as this statute might get applied, there is a conceivable world where what is commercially reasonable for Facebook, you know, one of the largest corporations in the world, might be different than what is commercially reasonable for Dreamwidth. And the way I understand Dreamwidth, you know, I think they have three employees and several hundred volunteers compared to a company that has a market cap of over a trillion dollars. What is commercially reasonable for those two could be different.
(Hearing Tr., Doc. 29 at 19:23–20:7).
In the first instance, the State‘s self-professed disparate enforcement invites selective regulation of social media platforms, rendering it unconstitutional. See Bell v. City of Winter Park, 745 F.3d 1318, 1324 (11th Cir. 2014) (“A grant of
Furthermore, the State‘s own acknowledgement regarding the potentially lax enforcement of the Parental Consent Provision—including the requirement of only one parent‘s consent and the laissez-faire approach to confirming the parental
[A]s it relates to NetChoice‘s obligation, I think by the plain language the consent of a single parent is sufficient. . . . You also asked, as I understand, well, what level of certainty do we have to be sure of that the parent—the person is who they say they are? . . . I think there is a way to read the statute that self-attestation of a parent is likely sufficient to accomplish those goals. Again, the statute talks about what is commercially reasonable. I don‘t think anyone expects a social media provider to have a 100 percent accuracy. I mean, I think we can all conceive of, you know, an older brother or a friend who may, you know, try to do something like that. But I don‘t think the statute requires absolute accuracy. I think it requires what is commercially reasonable. And if someone attests to being a parent, I think there is at least a solid argument that that satisfies the obligations of parental consent contained therein.
(Hearing Tr., Doc. 29 at 16:4–24 (counsel for the State)). In Brown, Justice Scalia found nearly identical elements of the law to be indicative of serious, fatal tailoring issues:
The California Legislature is perfectly willing to leave this dangerous, mind-altering material in the hands of children so long as one parent (or even an aunt or uncle) says it‘s OK. And there are not even any requirements as to how this parental or avuncular relationship is to be verified; apparently the child‘s or putative parent‘s, aunt‘s, or uncle‘s say-so suffices. That is not how one addresses a serious social problem.
On the other end of the spectrum, the Act also poses overinclusion issues, “encompass[ing] more protected [expression] than necessary to achieve its goal.” Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 578 (1993) (Blackmun, J., concurring). Most notably, the Act‘s Age Verification Provision imposes severe burdens on all Georgians’ use of social media, in an effort to “aid
Given the scope of these burdens, the Act is hardly the “least restrictive” solution, as strict scrutiny requires. The Court need not look hard to find alternative tools to assist parents in managing their children‘s social media use:
Even setting aside the parental control and supervision tools offered by the websites themselves, parents can determine whether and when to let their children use internet-connected devices, they can utilize device-level settings to limit how long their children use them, or they can block specific websites from their children‘s devices at the network level through their internet router.
Uthmeier, 2025 WL 1570007, at *18. (See also Veitch Decl., Doc. 5-5 ¶¶ 11–16 (explaining platform‘s built-in tools to protect minors) (Director of Public Policy for the Americas, YouTube)). Again, the Court does not doubt the dangers posed by young people‘s overwhelming exposure to social media. But, in its effort to aid parents, the Act‘s solution creates serious obstacles for all Georgians, including teenagers, to engage in protected speech activities and would highly likely be unconstitutional. Plaintiff has thus shown a substantial likelihood of prevailing on the merits of its First Amendment claim.
In addition to its First Amendment challenge, NetChoice also contends that SB 351 is unconstitutionally vague. “The void-for-vagueness doctrine reflects the principle that ‘a statute which either forbids or requires the doing of an act in terms so vague that [persons] of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.‘” Harris v. Mexican Specialty Foods, Inc., 564 F.3d 1301, 1310 (11th Cir. 2009) (quoting Roberts v. U.S. Jaycees, 468 U.S. 609, 629 (1984)). “Vagueness within statutes is impermissible because such statutes fail to put potential violators on notice that certain conduct is prohibited, inform them of the potential penalties that accompany noncompliance, and provide explicit standards for those who apply the law.” Id. at 1311 (quoting Grayned v. City of Rockford, 408 U.S. 104, 108–109 (1972)). Moreover, if “the law interferes with the right of free speech or of association, a more stringent vagueness test should apply.” Vill. of Hoffman Ests. v. Flipside, Hoffman Ests., Inc., 455 U.S. 489, 499 (1982).
While NetChoice‘s vagueness argument is cеntered on the law‘s definition of “social media platforms,” (Mot. for PI, Doc. 5-1 at 39–40), the Court is more concerned about the Act‘s amorphous requirement of “commercially reasonable” age verification efforts. The State has made clear that, in its view, a “commercially reasonable” age verification effort would not always require a user to submit a government-issued identification, suggesting facial recognition as a feasible alternative. (See Hearing Tr., Doc. 29 at 11:20–12:19). At the risk of repeating itself,
3. Section 230 Preemption
Independent of its constitutional challenges, NetChoice also contends that the Advertising Provision is pre-empted by Section 230 of the Communications Decency Act,
Sectiоn 230 provides that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
SB 351 requires that social media platforms prohibit “[t]he display of any advertising in the minor account holder‘s account based on such minor account holder‘s personal information.”
B. Irreparable Injury
“Because the plaintiff[] ha[s] shown a likelihood of success on the merits, the remaining requirements necessarily follow.” Honeyfund.com Inc. v. Governor of Fla., 94 F.4th 1272, 1283 (11th Cir. 2024). The Court briefly turns to the remaining three preliminary injunction factors.
Defendant puts forth two rejoinders to Plaintiff‘s assertion of irreparable injury. First, the State alleges that “NetChoice‘s immense delay in bringing this action fatally undercuts its alleged need for urgency[.]” (Opp‘n, Doc. 23 at 40). It is true, as Defendant says, that NetChoice waited roughly a year after the passage of SB 351 to bring suit, filing its challenge just 60 days before the law went into
At oral argument, the State also asserted that the law‘s “safe harbor” provision undermines Plaintiff‘s assertion of irreparable harm. (Hearing Tr., Doc. 29 at 34:9–35:1). As a reminder, this portion of SB 351 requires the Attorney General to provide entities with notice of their alleged violation and allow 90 days during which to cure it.
C. Balance of Equities & Public Interest19
“No long string of citations is necessary to find that the public interest weighs in favor of having access to a free flow of constitutionally protected speech.” ACLU of Ga. v. Miller, 977 F. Supp. 1228, 1235 (N.D. Ga. 1997). Though there is certainly a public interest in recognizing and addressing the detriments of social media, the serious tailoring issues present in the Act render it an inappropriate vehicle by which to do so. “[The government has ‘no legitimate interest’ in enforcing an unconstitutional law” and “a preliminary injunction is not contrary to
D. Requirement of Bond
“The court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.”
IV. CONCLUSION
As our sister court in the Northern District of Florida wrote, the Court “does not doubt that parents and legislators in the state have sincere concerns about the effects that social media use may have on youth, nor does it render parents or the State powerless to address those concerns.” Uthmeier, 2025 WL 1570007, at *1. This Court recognizes the serious social media issues that impact young people. It
SB 351 purports to regulate minors’ social media use for their own good. But the State has carved out dozens of arbitrary exemptions and, in oral argument, downplayed the rigor of its parental consent requirements. The State certainly has the authority and ability to рrovide children and parents with education, resources, and tools to understand the detriments of social media and engage with the internet in a healthier and more productive way. But the challenged portions of SB 351 do not do so. Instead, the Act curbs the speech rights of Georgia‘s youth while imposing an immense, potentially intrusive burden on all Georgians who wish to engage in the most central computerized public fora of the twenty-first century. This cannot comport with the free flow of information the First Amendment protects. For the foregoing reasons, the Plaintiff‘s Motion for a Preliminary Injunction [Doc. 5] is GRANTED.
IT IS SO ORDERED this 26th day of June, 2025.
Honorable Amy Totenberg
United States District Judge