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Apparently we’re in an era where the courts just decide to ignore precedents they don’t like. And that leads us to ridiculous results like yesterday’s ruling in the Eleventh Circuit allowing Florida’s HB3 social media age verification law to move forward. But to understand how messed up it is, you need to know the history of a few different Supreme Court cases, and how the Supreme Court has started undermining earlier precedents, effectively granting power to the Eleventh Circuit to make up its own rules.
As a quick primer, these are the historical cases you need to understand, to recognize what a clusterfuck this new ruling is.
- Reno v. ACLU: Effectively establishes that the First Amendment applies to the internet.
- Ashcroft v. ACLU: Age-gating online speech to shield kids violates the First Amendment when it burdens adults’ access to protected speech and less restrictive alternatives (like filters) exist.
- Brown v. EMA: State restricting sales of video games to kids violates the First Amendment.
- Packingham v. North Carolina: State laws can’t ban people from the internet, even if they commit heinous crimes, as the internet involves too much important speech and services.
Then we have some more recent cases that make all this shit trickier:
- Moody v. NetChoice: Makes clear that internet content moderation is protected editorial decision making under the First Amendment but comes up with a weird rationale to make it nearly impossible to challenge First Amendment-violating internet laws until after they’ve done real harm to companies, by saying it’s nearly impossible to pursue a “facial” challenge (basically saying the law as written is obviously fully unconstitutional) as opposed to an “as applied” challenge, specifically challenging how the law is enforced.
- TikTok v. Garland: Basically saying that despite the cases above, the government can completely ban a website by just stating “national security” and the Supreme Court will ignore all the First Amendment issues.
- FSC v. Paxton: Says the Supreme Court will ignore the Ashcroft ruling above, as long as it involves naked people on the internet. Then you can demand age verification and restrict kids because naked people are icky.
So, that brings us to this new ruling in the Eleventh Circuit regarding HB3, which was Florida’s attempt to broadly age verify internet services. The key parts require social media platforms that have “addictive features” (as defined by Florida) to block anyone under the age of 14 from creating an account, and then requires parental consent for 14- and 15-year-olds. In short, it requires age verifying everyone and blocking many users from these services.
The trade groups CCIA & NetChoice challenged the law, and the case went through many twists and turns, including a district court judge pointing out that adults freaking out over whatever new thing kids are into is a moral panic that happens all the time, and we shouldn’t immediately assume that just because politicians are screaming about “protecting the children” that we need to believe them. At one point a judge refused to grant an injunction because (the judge said), the trade association that filed the case (CCIA) couldn’t show that any of its members faced imminent harm.
Soon after that Florida sought to enforce the law against Snap, a member of CCIA. Eventually, the district court issued a preliminary injunction on the law, though the Eleventh Circuit then put a stay on the injunction, with a dissent from Judge Robin Rosenbaum, who makes a ton of important points. As I said, lots of twists and turns.
However, now the Eleventh Circuit has come out with its latest ruling reversing the district court’s preliminary injunction (and vacating it as to the facial challenge), and it’s a fucking mess. Notably, it’s a totally different panel — Judges Newsom, Luck, and Tjoflat — than the earlier ruling, and so this new ruling doesn’t even have the kind of thoughtful dissent Rosenbaum issued last time through this court, and the ruling is worse off for it.
First, the similarities to Brown v. EMA should be obvious, but the panel here says that this law is more like the TikTok case, and thus the ruling in Brown doesn’t really apply:
HB3 more closely resembles the law at issue in TikTok than the one in Brown. HB3 is facially content neutral: It regulates social-media platforms based on their functional capabilities and features, not the content they communicate. The law neither references the substance of the speech on any platform nor draws distinctions based on it. Put differently, HB3 applies to platforms wholly without regard to the topics discussed or the ideas or messages conveyed on them. Truth Social is just as likely as Instagram to be affected by HB3 so long as (1) a proportion of minors under 16 spend an average of at least two hours a day on it; (2) it uses infinite scrolling, push notifications, auto-play, or livestreaming, or displays user-engagement metrics; and (3) it selects content algorithmically for users. Fla. Stat. § 501.1736(1)(e). And tellingly, neither a platform nor a user can “avoid or mitigate” the effects of HB3 by “altering” the substance of any posted expression. TikTok, 604 U.S. at 71 (quoting Turner I, 512 U.S. at 644).
HB3’s justification is also content neutral: to “protect[] children from [social-media] addiction and associated mental-health harms.” Br. of Appellant at 36. That purpose is “unrelated to the content of expression” on any given platform, and it doesn’t “reflect[] disagreement with the message such speech conveys.” TikTok, 604 U.S. at 72.
To put it simply: that is garbage. The reason for Florida’s law is not content neutral at all. It is passing these laws because it doesn’t believe kids should have access to all sorts of constitutionally protected speech. That is important. The claim that it is to “protect children” could equally apply to all sorts of speech, such as books, TV shows, movies, or video games (remember what the Brown case is about?), but we (and the courts) immediately recognize that has clear speech implications, and you can’t wave them off as “content neutral.”
On top of that, the claim that this is just about “capabilities and features” not content ignores that many of those features (as established in cases like Moody) are, in fact, the expressive (First Amendment-protected) speech of the platforms themselves, which the state is effectively banning. To call the law content neutral, even as it calls out specific editorial features, just seems fundamentally incorrect.
Even more incredibly, the Eleventh Circuit literally seems to suggest that states can regulate all sorts of speech that might make people more interested in content as “features” rather than speech. CCIA had pointed out that the law is not at all content neutral because it puts rules on internet speech that doesn’t apply to speech in other mediums, and uses “cliffhangers” in books as an example.
In particular, CCIA emphasizes that HB3 prohibits addictive features only on websites, not on other “services that disseminate speech”—like, for instance, “books that end in cliffhangers.”
The Eleventh Circuit dismisses this in a footnote… suggesting that cliffhangers and other tricks to get people to read more in books can be regulated because they’re “features” not “speech.”
Further, the analogy to literary devices that make books more engaging—like cliffhangers, shorter chapters, or serialization—simply reinforces Florida’s contention that it’s not focused on speech and the accompanying ideas, topics, and messages, but rather on features that in and of themselves are agnostic as to content.
I am… flummoxed by this. Cliffhangers are features, not speech? Have any of these judges ever read a book? Short chapters are features not speech? What? Under the logic of this ruling, a state could issue a ban on short chapters and cliffhangers as being too “addictive” and the Eleventh Circuit says that would pass intermediate scrutiny and be just fine.
And that alone should tell you how preposterous this ruling is.
CCIA pointed out how much protected speech gets stifled under this law, but the judges dismissed it. They claim (incredibly) that the law doesn’t “burden” too much speech:
HB3 doesn’t “burden substantially more speech than necessary” because it (1) calibrates its restrictions by age, (2) regulates minors’ creation of social-media accounts, not necessarily their access to the platforms themselves, (3) covers only those platforms that have been determined to induce heavy use by children, and (4) applies only to platforms that use both algorithms and one of several addictive features.
But that’s simply wrong. It absolutely burdens a ton of protected speech for users under the age of 14. The “calibrates its restrictions by age” ignores that it requires a full block on those under 14, even though there may be plenty of age appropriate speech online for those under 14 (my under 14-year-old middle schooler regularly watches educational videos on YouTube, for example).
Also, it simply ignores that anonymity is protected under the First Amendment, and this law effectively ends anonymous accounts for everyone, since age verification has to cover all users. How did the court address that? It didn’t. Search the ruling for “anonymous” and you get:
At least with the last time through this court in the Rosenbaum dissent, she was able to highlight the issue of anonymous speech. Here, the court just ignores it. Poof. Doesn’t matter.
The court also says all this is fine because it doesn’t restrict access, only account creation:
Second, even among those to whom HB3 does apply, the law restricts only their ability to create their own accounts, not their ability to access social-media platforms per se. The creation of a social-media account is a commercial act—a business transaction. Even a minor—indeed, even a young child—may continue to use the platforms provided he either (1) uses his parents’ (or someone else’s) account or (2) gains access without an account.
But there are plenty of platforms that restrict access to only those with an account. And, again, it also restricts how platforms decide what features to offer, which is its own burden.
Separately, the court claims that this law is fine because it only targets platforms to which kids are “already addicted.”
Third, HB3 targets only the platforms to which many minors are already addicted. As a reminder, a platform comes within HB3’s purview only if at least 10% of daily active users under 16 years old spend an average of two hours or more per day on it. Fla. Stat. § 501.1736(1)(e). Together with its other limitations, HB3’s tailoring efforts fall within the broad range of potential legislative solutions that intermediate scrutiny permits.
Even leaving aside the fact that repeated research suggests claims of social media “addiction” are way overblown, it’s also wrong about the law. Just because people use something an average of two hours or more a day does not, definitionally, mean “addicted.” People spend hours a day reading, playing sports, or watching TV, but we don’t claim those are addictions that need to be regulated. The data here (from the Bureau of Labor Statistics) is a bit outdated, but it found that people tend to watch more than two hours of TV a day. Do we claim that everyone is addicted to TV?
Also, nothing about the law is focused just on those who use the platform that much. It bans those who use it for just minutes a day as well if they’re 13-years-old. Arguing that it’s narrowly targeted makes no sense at all.
Bizarrely, the panel then claims that because the platforms can change what features they offer kids, that shows that this doesn’t burden speech. Really.
And fourth, HB3 operates not as an outright prohibition of platform usage but rather as a “conditional ban” of sorts—namely, on platforms’ use of addictive features and algorithms. See TikTok, 604 U.S. at 74, 77. The law applies only to platforms that use a combination of algorithms and addictive features and that succeed in keeping many minors on them for an average of at least two hours a day. See Fla. Stat. § 501.1736(1)(e). Refraining from using either algorithms or addictive features, or remaining below the temporal threshold, exempts a platform from the law’s application.
Right. So, you just admitted that it impacts the editorial decision making of the platforms, the very thing the Supreme Court said in Moody that is protected by the First Amendment.
And while the Packingham case makes it pretty clear that you can’t ban people from websites because there is so much important speech there, again the panel here dismisses that because it’s just banning “a subset of minors” rather than “all sex offenders” as was the case in Packingham.
Unlike HB3, which applies only to a subset of minors, the statute there covered all registered sex offenders. And unlike HB3, which applies only to a subset of social-media platforms, the law there defined the covered sites exceedingly broadly; it included “commonplace social media websites like Facebook and Twitter,” as well as “websites as varied as Amazon.com, Washingtonpost.com, and Webmd.com.” Id. at 101, 106 (majority opinion). And unlike HB3, which restricts account creation but doesn’t limit access to the platforms per se, the statute there forbade any usage of the covered sites. Id. at 101. HB3 is tailored in a way that the law at issue in Packingham was not.
I literally do not understand what they mean when they say HB3 is different because it only applies to a “subset of minors.” It applies to all minors under 14 with a ban on account creation, and also applies to all 14- and 15-year-olds by requiring parental approval for account creation. That’s… way more people than “all sex offenders” (unless Florida has more registered sex offenders than children under 16, which seems like a different kind of problem).
Then we get to the FSC v. Paxton issue. When the Supreme Court ruled in that case last year, we highlighted that the reasoning of the ruling was quite clearly limited to non-First Amendment protected speech, which they claimed included content that would be obscene to minors. But (importantly) we were sure it would open up the floodgates to people claiming it applied much more broadly to all sorts of internet services.
And… that’s exactly what is happening here, and the Eleventh Circuit judges seem to think it’s no big deal to magically expand the FSC ruling to mean you can age restrict First Amendment-protected content too.
CCIA contends that, by contrast, HB3 prohibits certain minors from accessing protected speech. That may be so, but Free Speech Coalition didn’t purport to establish a constitutional outer limit; nothing in the Court’s reasoning there precludes a state from imposing an age-verification requirement that operates to limit minors’ access to some protected speech—provided, of course, that it does so in a content-neutral manner.
That’s literally wrong. The majority decision in FSC quite clearly says it is okay to restrict it because the content is “obscene” to children, and thus not protected. Straight from Clarence Thomas’s decision:
Because H. B. 1181 simply requires proof of age to access content that is obscene to minors, it does not directly regulate the protected speech of adults…. On its face, the statute regulates only speech that is obscene to minors. That speech is unprotected to the extent the State seeks only to verify age. And, the statute can easily “be justified without reference to the [protected] content of the regulated speech,” because its apparent purpose is simply to prevent minors, who have no First Amendment right to access speech that is obscene to them, from doing so.
So, I’m honestly baffled that the Eleventh Circuit now claims that SCOTUS’s ruling wasn’t limited to only unprotected speech. It was core to Thomas’ ruling.
The Eleventh Circuit then takes other parts of the FSC ruling out of context, to say that because it mentioned age verification in other contexts (offline) being okay, that means they can extend it to protected speech:
To the contrary, everything the Court said in Free Speech Coalition seems to point in the other direction. The Court emphasized, for instance, that “[r]equiring age verification is common when a law draws lines based on age.” Id. at 479. It noted that many states require proof of age to buy alcohol and tobacco, as well as to obtain licenses to carry a handgun, to drive, and to marry.
Buying alcohol, tobacco, or firearms is, notably, not speech. Neither is driving or marrying. What the fuck are the judges even doing here?
Finally (though, not surprisingly, due to the awkwardness of the Moody ruling), the court rejects CCIA’s “facial” challenge, saying that because some of the platforms covered by this law might host speech that is unprotected under the First Amendment, CCIA hasn’t shown that the law’s unconstitutional applications substantially outweigh its constitutional ones. Incredibly, just pages after insisting that FSC v. Paxton isn’t limited to unprotected speech, the court turns around and leans on FSC’s unprotected-for-minors category to argue that some covered platforms host unprotected speech.
Put differently, just because users are “engag[ing] in speech” on a platform doesn’t mean that their expression is fully protected by the First Amendment. Id. There are all kinds of social-media platforms featuring—or even if not featuring, permitting—all kinds of expression. To be sure, much of that expression is fully protected. But some isn’t. The Supreme Court has held, for instance, that certain kinds of speech enjoy no First Amendment protection at all—e.g., incitement, true threats. See Brandenburg v. Ohio, 395 U.S. 444 (1969) (incitement); Counterman v. Colorado, 600 U.S. 66 (2023) (true threats). Other kinds of speech enjoy constitutional protection when exhibited to adults but not when exhibited to children—pornography being the most obvious example. See Free Speech Coal., 606 U.S. at 496.
It may well be true that most expression on most social-media platforms is indeed protected. But not all of it is, at least not with respect to all users. So, for instance, imagine a platform that hosts only unprotected speech—say, Incitement.com or TrueThreats.com. A law restricting children’s (or anyone’s) access to it wouldn’t implicate the First Amendment at all and would trigger only rational-basis review. A law restricting access to a site that hosts speech that is protected for adults but not children—like pornography—would implicate the First Amendment, but a contentneutral restriction—like an age-verification requirement—would be subject only to intermediate scrutiny. See Free Speech Coal., 606 U.S. at 495. Accordingly, even if HB3 “imposes the same onerous restriction” on every platform, Dist. Ct. Order, June 3, 2025, at 43, that restriction could well be subject to different levels of scrutiny, potentially leading to different outcomes.
My response to that is a giant eye roll and “come on.” And, even the judges on the Eleventh Circuit realize “come on, you can’t be serious” is the only logical response here, but insist that the Supreme Court’s ruling in Moody requires such an outcome:
One might interpose a “come on” objection at this point: Surely, the argument would go, the overwhelming majority of platforms to which HB3 applies overwhelmingly host protected speech. And if, as CCIA insists, the law’s application to those websites would be unconstitutional, then the law’s unconstitutional applications would probably substantially outweigh the constitutional ones. But however intuitive, that sort of impressionistic judgment won’t satisfy Moody’s stringent demands. Whether or not it’s likely that the collective content of the platforms within HB3’s ambit is overwhelmingly protected, CCIA bears the “burden” of demonstrating both (1) the universe of the law’s applications and (2) that the invalid applications substantially outweigh the valid ones.
And, perhaps the ruling in Moody is to blame for this part of it, but when an appeals court has to admit how nonsensical this reasoning is, it seems like a sign that the Supreme Court should reconsider its silly requirements for facial challenges in Moody.
There is a concurrence from Judge Kevin Newsom, who points out that the Supreme Court is effectively all over the map regarding this “as applied” vs. “facial” challenge stuff post-Moody, noting that other recent SCOTUS rulings suggest “as applied” challenges for intermediate scrutiny may not really be allowed either, and then coming around to the obvious conclusion that this might mean that under recent SCOTUS doctrine, the state can pass all sorts of speech suppressing laws with no way for the courts to block them. And, uh, yeah, dude, that’s why these rulings are so damn concerning.
But if the Supreme Court’s point in Moody was to make as-applied challenges the new normal in First Amendment litigation, it seems strange that the same Court—the same nine people—would have then turned around less than two years later and nixed as-applied challenges for the whole range of First Amendment claims that call for intermediate scrutiny. And I don’t think it makes me a result-oriented hack to worry that a combination of Moody’s new (or newly emphasized) limitations on facial First Amendment challenges and a prohibition on as-applied challenges in a host of contexts would lead to, well, a lot less protection for traditionally safeguarded speech.
In the end, I’ll confess that I’m not quite sure what to make of B.P.J.’s statement casting doubt on the viability of as-applied challenges to laws that trigger less than strict scrutiny. But before exporting it to the First Amendment context, I think it’s wise to await a clearer signal from the Supreme Court.
While he doesn’t come out quite that far to say it, by suggesting it doesn’t make him a “result-oriented hack,” he is kinda pointing a finger at “the same nine people” on the Supreme Court who have made these conflicting decisions that make it effectively impossible to stop speech suppressing laws, even with the First Amendment. And they are result-oriented hacks, as some of us have been pointing out (though, realistically, he’s just talking about the “conservative” six who were in the majority of the BPJ case, which effectively puts the kibosh on as applied challenges for anything that qualifies for less than strict scrutiny.
Either way, this ruling makes a mess of free speech online in really damaging ways. Admittedly, some of that is due to the “results oriented hacks” at the Supreme Court, but the Eleventh Circuit’s interpretation of the rulings in Brown, Moody, Packingham, FSC, and a variety of other cases, suggests a do over is absolutely necessary. Hopefully this ruling gets tossed under an en banc hearing or, somehow, by the “results-oriented hacks” at the Supreme Court. With other circuits also having trouble remembering the First Amendment exists online, one hopes that the Supreme Court steps in and reminds them.
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