11th Circuit resumes Georgia limits on minors' social media use

(CN) — The 11th Circuit on Thursday lifted a lower court's ban on a Georgia law restricting minors' ability to create accounts on social media platforms.

In a 25-page opinion, the federal appeals court sided with the state, finding Big Tech lobbyist group NetChoice failed to show how the law violated its members' First Amendment rights.

The three-judge panel agreed with the lower court's holding that NetChoice has associational standing to challenge the law on behalf of its members. They noted that a number of other courts have held the same.

But they said the group — which represents tech giants like Meta, Google, Amazon and X — "failed to carry the burden it bears."

This is because not all social media websites engage exclusively in "fully protected" speech, U.S. Circuit Judge Kevin Newsom wrote for the panel.

"The state contends (and no one seems to dispute) that some platforms, like X and Reddit, do host at least some pornography — which is protected for adults but, importantly, not for minors," Newsom wrote.

"We agree with the state that SB 351's application (if any) to sites like X and Reddit raises different First Amendment questions than its application to others," the Donald Trump appointee added.

In 2024, Georgia enacted SB 351 to restrict minors' ability to create accounts on social media platforms. The law was supposed to go into effect last year before being blocked in court.

It requires platforms to verify the ages of all their users, prohibit minors under the age of 16 from creating accounts without their parents' consent and limit the personal data they use to display ads to users under 16.

The law defines "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."

However, it includes a wide range of enumerated platform exceptions, such as email, streaming services, news, sports, online shopping and other content that is preselected by the provider and not user-generated.

The judges explained that some platforms are considered "conventional" and host fully protected speech, while others are "hybrid," that mostly host protected speech but allow some potentially unprotected pornography, like X and Reddit. Then there are "rogue" platforms that host exclusively unprotected speech — think the hypothetical "Incitement.com" or "TrueThreats.com."

"Even if most expression on most social media platforms is protected by the First Amendment, not all of it is, at least not with respect to all users," Newsom wrote.

"Depending on the type of speech each platform hosts, a different level of scrutiny may well apply, leading to different determinations about the constitutionality of SB 351's applications," he added.

Just a day earlier on Wednesday, the 11th Circuit vacated a preliminary injunction against Florida's law banning social media accounts for children under 14 and requiring parental consent for 14- and 15-year-olds.

NetChoice has challenged nearly a dozen other similar state laws in Texas, Ohio, Arkansas, California, Nebraska, Utah, Virginia, Florida, Mississippi, Louisiana and Tennessee. Most are currently blocked on a preliminary or permanent basis.

"While we are disappointed in the 11th Circuit's ruling, the court notably did not hold that SB 351 is constitutional," NetChoice Litigation Center director Paul Taske said.

"As we evaluate our next legal steps, we remain committed to fighting for Georgians' right to free expression online and ensuring parents, not the government, stay in charge of decisions for their families," Taske added.

Two years ago, the U.S. Supreme Court sided with NetChoice in a similar challenge to laws in Florida and Texas that attempted to regulate social media content moderation. The high court instructed the 11th Circuit to consider the full scope of the laws' applications when addressing facial challenges such as the one brought by NetChoice.

Last year, the Supreme Court gave the green light to Mississippi to enforce its age verification law, but NetChoice's challenge remains active in the Fifth Circuit.

Newsom, who was joined on the panel by Senior U.S. Circuit Judge Gerald Bard Tjoflat, a Gerald Ford appointee, and Robert Luck, a fellow Trump appointee, noted the justices' ruling in Moody v. NetChoice, LLC.

"To discharge its facial-challenge burden, NetChoice must provide the reviewing court with the data — neither hard facts or, at the very least, sufficient briefing — necessary to conduct the Moody-required comparative analysis. It hasn't done so here," Newsom wrote.

"Indeed, NetChoice hasn't provided even a full list of its own members to which SB 351 applies," he added.