District Court Blocks More of Texas’ Segregate-and-Suppress Law (HB 18)–SEAT v. Paxton

Texas enacted HB 18, a typical smorgasbord law packed full of policy ideas–all bad and undertheorized–under the pretext of protecting kids online. In September, the court enjoined part of the law. See CCIA v. Paxton. Now, the court enjoins much of the rest.

Scrutiny Level

The court says strict scrutiny applies: “HB 18 is therefore a content- and speaker-based regulation, targeting DSPs whose primary function is to share and broadcast social speech…HB 18 discriminates based on the type of content provided on a medium, not just the type of medium.”

Paxton argued that the Fifth Circuit rejected strict scrutiny in the NetChoice decision, to which the judge responds that the Supreme Court nuked the 5th Circuit NetChoice decision on appeal. Was Paxton actually serious? The Supreme Court majority opinion went out of its way to ensure everyone knew the Fifth Circuit opinion was trash.

Means-Fit Analysis

Unsurprisingly, the law fails strict scrutiny.

Content Blocking. “The monitoring-and-filtering requirements explicitly identify discrete categories of speech and single them out to be filtered and blocked. That is as content based as it gets….Terms like “promoting,” “glorifying,” “substance abuse,” “harassment,” and “grooming” are undefined, despite their potential wide breadth and politically charged nature…HB 18’s under-inclusivity [] threatens to censor social discussions of controversial topics….Texas also prohibits minors from participating in the democratic exchange of views online.”

Targeted Advertising. “there may exist a compelling state interest in promoting teen mental health by limiting teens’ exposure to certain advertising, but nowhere does the Court see a specific interest articulated for removing teens’ access to targeted advertising of all kinds, much less a compelling one, as is required.”

“Paxton agrees that advertising can be beneficial to minors in some contexts. Paxton calls some forms of advertising “public service advertising”: “speech such as a university’s post on its own social media identifying upcoming ‘scholarship opportunities’ or a nonprofit organization’s announcement of an upcoming conference to discuss ‘free speech’ issues.” But the statute restricts those forms of advertising. Paxton agrees restricting such content is “absurd.”” If you are in the Texas legislature, and Paxton is calling your work “absurd,” how bad should you feel?

“Why, if the very use of targeted advertising toward minors creates a harm so acute as to create a compelling state interest, can a teenager view a targeted advertisement on a sports or shopping website but not on a social platform?”

Vagueness

“Those provisions are vague because both the verbs (promotes, glorifies, and facilitates) and the objects of those verbs (e.g., stalking, bullying, substance abuse, and grooming) are broad and undefined. Especially when put together, the provisions are unconstitutionally vague. ”

“What defines “grooming” and “harassment?” Under these indefinite meanings, it is easy to see how an attorney general could arbitrarily discriminate in his enforcement of the law. These fears are not too distant—pro-LGBTQ content might be especially targeted for “grooming.”” The Heritage Foundation and Project 2025 are working to achieve that very outcome.

Conclusion

The court summarizes:

Plaintiffs have shown that HB 18 is a content-based statute and is therefore subject to strict scrutiny. As to the monitoring-and-filtering requirements, HB 18 § 509.053 and § 509.056(1), the targeted advertising requirements, § 509.052(2)(D) and § 509.055, and the content monitoring and age-verification requirements, § 509.057, Plaintiffs have carried their burden in showing that the law’s restrictions on speech fail strict scrutiny and should be facially invalidated, and in § 509.053 and § 509.055, are unconstitutionally vague.

It’s a fairly safe bet that the Fifth Circuit will reverse this decision because it’s the Fifth Circuit. Once again, the Supreme Court is likely to have to tell us the real outcome.

Case Citation: Students Engaged in Advancing Texas v. Paxton, 2025 WL 455463 (W.D. Tex. Feb. 7, 2025)

Bonus: Free Speech Coalition v. Skrmetti, 2024 U.S. Dist. LEXIS 234100 (M.D. Tenn. Dec. 30, 2024), reversed by the 6th Circuit, No. 24-6158 (6th Cir. Jan. 13, 2025).

Tennessee’s law is very similar to Texas’ anti-porn segregate-and-suppress law, which is awaiting a Supreme Court decision in Free Speech Coalition v. Paxton. I ran out of time to blog the district court opinion before the 6th Circuit iced it. The Supreme Court decision in FSC v. Paxton will likely have a lot to say about this case, even though Tennessee’s law isn’t before the Supreme Court.

From the district court opinion:

• “The Protect Tennessee Minors Act stands in a graveyard full of similar content-based restrictions at the state and federal level that lived—and died—before it.”
• “Tennessee is the latest state to succumb to the tidal wave of internet regulations sweeping across the country. These laws all have one important objective in common: they seek to protect children from an online Wild West, where anything and everything is easily accessible, even pornography. To achieve this goal, the Tennessee General Assembly cobbled together the PTMA from a patchwork of language recycled from similar types of state and federal legislation that unfortunately suffer from constitutional infirmities.”
• “In its crusade against internet pornography, Tennessee would “burn the house to roast the pig.” The First Amendment undoubtedly requires more precision than this kind of scorched-earth approach.”
• “The PTMA likely violates the First Amendment. It is similar to attempts by others states and the federal government to regulate internet content based on its appropriateness for minors at the unfortunate expense of adults’ constitutional rights. Because of the breadth of these laws, federal courts are not strangers to them, and they are not kind to them, either.”
• “To the extent that the AG asks this Court to follow the Fifth Circuit, it will not do so. The Fifth Circuit may have concluded that it was not bound by Ashcroft, but this Court is.”
• “Plaintiffs emphasize, and this Court agrees, that under the PTMA, the mere phrase “the human nipple” and the symbols “(o)(o)” would be subject to the age-verification requirement so long as they lack serious value for minors, even though they would not qualify as obscene.”

It was a nice opinion by Judge Lipman, but it survived only about 2 weeks. The Sixth Circuit dissolved the injunction. It says “Even assuming the district court was correct in applying strict scrutiny, it still did not establish that the unconstitutional applications of the PTMA outweigh the constitutional ones.” The panel notes the FSC v. Paxton Supreme Court decision is pending, but seems to treat that as a reason to let the law go into effect (and override the status quo) rather than enjoin it to wait for the new guidance….?

Bonus 2: Free Speech Coalition v. Knudsen, 2024 WL 4542260 (D. Mont. Oct. 24, 2024). This involves another anti-porn segregate-and-suppress law. The court applied strict scrutiny, and that was enough to overcome the state’s motion to dismiss. The court did dismiss the dormant commerce clause challenge. “Just because an internet content-provider must alter their content for Montana does not mean that the state is attempting to regulate out-of-state conduct.” However, the Section 230 preemption challenge survived: “Montana’s Age Verification Act holds interactive computer service providers liable for “publishing” material harmful to minors on their websites. Section 230 says that interactive computer services providers are not publishers of third-party content. It is difficult to see how these laws could be read in harmony with one another.”