Full Fifth Circuit to Rehear Fight Over Texas Law Protecting Children Online

The full U.S. Court of Appeals for the Fifth Circuit will rehear the challenge to the SCOPE Act, the 2023 Texas law that requires social media services to shield known minors from harmful content, and has thrown out a July ruling that held a federal statute overrides the law’s central requirement.

The court ordered the rehearing on October 28 after a majority of its active judges voted for it. The order vacates the panel opinion issued July 24 and sends the case to the full court for oral argument “on a date hereafter to be fixed.” The clerk will set a schedule for supplemental briefs.

What the Law Requires

House Bill 18, the Securing Children Online through Parental Empowerment Act, passed the Texas Legislature in 2023 and was signed on June 13 of that year. It took effect September 1, 2024.

Its central requirement directs covered services to develop and implement a strategy to keep known minors from “harmful material,” as Texas law defines it, and from content that promotes, glorifies or facilitates suicide, self-harm, eating disorders, substance abuse, bullying, grooming, trafficking or sexual exploitation. The law applies to services where users build profiles, post content and interact with one another. The Consumer Protection Division of the attorney general’s office enforces it, and the parent of an affected minor may sue for an injunction.

Texas cited the SCOPE Act last month in its lawsuit against OpenAI, as the Texian Partisan reported.

The Ruling Now Vacated

Two groups of plaintiffs sued Attorney General Ken Paxton in the federal Western District of Texas in 2024. One pairs two technology trade groups, the Computer & Communications Industry Association and NetChoice, whose members include Google, Meta and X. The other is led by Students Engaged in Advancing Texas, a student organization, joined by a high school student, an Austin advertising firm and an adult who posts about mental health. The district court blocked the filtering requirement in both cases.

In July, Judges Dana Douglas and Patrick Higginbotham held that Section 230 of the federal Communications Decency Act of 1996 preempts the filtering requirement, because enforcing it would treat platforms as the publishers of what their users post. Quoting an earlier Fifth Circuit decision, the majority wrote that “publishers do not filter audiences; they filter content.” The panel also threw out the student plaintiffs’ injunction for lack of standing.

Judge James Ho dissented in part. He wrote that the law regulates how platforms curate content, which the Supreme Court has treated as the platforms’ own speech, so Section 230 does not reach it. “The SCOPE Act isn’t preempted by section 230 for one simple reason,” Ho wrote. “Because it regulates curation, not publication.”

What the Full Court Will Decide

With the panel opinion vacated, the full court will take up the question again: whether a federal statute written for the early internet overrides a Texas law on what platforms show Texas children.

The Legislature passed the SCOPE Act and the governor signed it. Whether its central requirement can be enforced now turns on how federal judges read a statute Congress passed three decades ago. The Texas Nationalist Movement (TNM), which works for a vote on Texas independence, holds that the laws Texans make to protect their own children should answer to Texans.