Tracking the fate of Mississippi’s age-verification and parental-consent law for social media account holders in the face of a First Amendment challenge in NetChoice v. Fitch is like watching a ping-pong game between the trial and appellate courts. Observing the judicial back-and-forth also proves maddening because sometimes, when Mississippi Attorney General Lynn Fitch prevails against NetChoice, one doesn’t know why.
Fitch’s intrigue is heightened because the intermediate appellate court––the US Court of Appeals for the Fifth Circuit––was upbraided by the Supreme Court in Moody v. NetChoice for its “wrong” First Amendment analysis on key points that should’ve gone NetChoice’s way. As I’ve described, a rebuffed Fifth Circuit is now making it difficult for NetChoice on remand in Moody’s companion case, NetChoice v. Paxton. Put gently, NetChoice, the Fifth Circuit, and First Amendment doctrine don’t mingle well.
Fitch’s Saga. Mississippi’s law now is operative after the Supreme Court on August 14 declined to reinstate a June preliminary injunction blocking its enforcement (in an as-applied challenge) against nine social media platforms––Facebook, Instagram, Reddit, YouTube, and Snapchat included––operated by eight NetChoice members. The Fifth Circuit, however, stayed the injunction without explanation in July, prompting NetChoice’s unsuccessful emergency bid to have the Supreme Court vacate it.
It marked the second time in three months the Fifth Circuit had ruled against an injunction for NetChoice issued by Chief District Judge Halil Suleyman Ozerden. The first came this April when the Fifth Circuit vacated a July 1, 2024 injunction Ozerden had granted in a facial challenge. July 1, 2024, is the same day the Supreme Court decided Moody v. NetChoice, and the Fifth Circuit remanded the case to Ozerden to conduct a “more detailed factual analysis” in light of Moody’s requirements for facial challenges. NetChoice filed an amended complaint in May that includes both facial and as-applied challenges.
Fitch’s Importance. The ultimate outcome in Fitch could be momentous. That’s because the reach of the Supreme Court’s June ruling in Free Speech Coalition v. Paxton affirming the result––albeit not the rational-basis reasoning––of the Fifth Circuit’s decidedly anti-free-speech decision in an age-verification case likely is in play.
I’ve argued that the Supreme Court’s Free Speech Coalition decision is tightly confined. The majority creatively avoided strict scrutiny review and, instead, applied intermediate scrutiny to uphold Texas’s unambiguously content-based, online age-verification statute targeting minors’ access to pornography. The majority opinion thus is cabined by “its narrow factual context—one involving age-verification requirements imposed on adult-oriented sites to block minors from accessing sexually explicit material they don’t have a constitutional right to view.”
Yet, Free Speech Coalition already is being used to try to reverse lower court decisions’ blocking enforcement of vastly broader age-verification and/or parental-consent statutes restricting minors’ access to wide swaths of lawful, non-sexual speech on popular social media platforms, not pornographic sites. Ohio Attorney General Dave Yost filed a brief with the Sixth Circuit on August 19 arguing that Free Speech Coalition “show[s] that something less than strict scrutiny applies” to test the validity of a parental-consent statute that a district court permanently enjoined in April 2025. In stopping the law’s enforcement and applying strict scrutiny, District Judge Algenon Marbley reasoned that “a permanent injunction would ensure that minors could continue to access and engage in protected speech on the vast array of websites regulated by the [statute].” (Emphasis added.)
States will cite Free Speech Coalition to upend free-speech principles that are highly protective of minors’ speech rights––principles exemplified by the Supreme Court’s 2011 opinion in the parental-consent, violent-video-game case of Brown v. Entertainment Merchants Association. That danger is what makes a short concurrence by Justice Brett Kavanaugh this month in Fitch so significant.
Although agreeing with the Court’s cursory denial of NetChoice’s application to stay the Fifth Circuit’s vacation of Ozerden’s most recent injunction, Kavanaugh wrote that “the Mississippi law is likely unconstitutional” and
NetChoice has, in my view, demonstrated that it is likely to succeed on the merits—namely, that enforcement of the Mississippi law would likely violate its members’ First Amendment rights under this Court’s precedents. See Moody v. NetChoice . . . [and] Brown v. Entertainment Merchants Assn.; cf. Free Speech Coalition, Inc. v. Paxton.
It seems like Bluebook minutiae, but “See” indicates Kavanaugh believes Moody and Brown clearly support his stance about NetChoice ultimately prevailing in Fitch. In contrast, “cf.” suggests Kavanaugh views Free Speech Coalition somewhat differently––as perhaps analogous but providing a different-proposition comparison point.
Kavanaugh may be signaling to his colleagues that Free Speech Coalition shouldn’t be expanded beyond its factual moorings and that it doesn’t support reducing scrutiny for all laws imposing age-verification mandates to access online speech or requiring parental consent for minors to do so. Indeed, immediately reining in Free Speech Coalition is essential for robust First Amendment rights.
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