Fifth Circuit Blocks Key SCOPE Act Provision

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Protecting children online is a legitimate responsibility, but so is protecting the constitutional freedoms that make the internet one of the last truly open forums for speech and expression. As lawmakers prepare for the 90th Texas Legislature, the Fifth Circuit's recent decision involving Texas's Securing Children Online through Parental Empowerment (SCOPE) Act serves as an important reminder that good intentions alone cannot justify government regulation that conflicts with federal law or infringes upon fundamental liberties.

On July 24, the U.S. Court of Appeals for the Fifth Circuit largely upheld a preliminary injunction preventing Texas from enforcing one of the SCOPE Act's most controversial provisions. Rather than striking down the law in its entirety, the court concluded that Texas cannot require certain social media platforms to monitor and filter lawful third-party content because Congress has already occupied that field through Section 230 of the Communications Decency Act. The decision does not invalidate the entire SCOPE Act. Many of the law's parental rights, privacy, and consumer protection provisions remain in place. Instead, the ruling draws an important line between empowering parents to protect their children online and allowing government to direct how private platforms moderate lawful speech.

As Texas begins preparing for the 90th Legislative Session, which begins in January 2027, lawmakers should view this decision as more than a legal setback. It offers valuable guidance for crafting future technology policy that protects children while respecting constitutional limits, federal law, and the enduring importance of free expression.

Understanding the Texas SCOPE Act and Its Goals

Passed during the 88th Texas Legislature in 2023, House Bill 18 (HB 18) established one of the nation's most expansive state frameworks governing minors' use of social media and other digital services. The legislation sought to strengthen parental oversight while imposing new obligations on covered digital service providers regarding data privacy, targeted advertising, parental controls, algorithm transparency, and online safety.

Much of the legislation focused on issues that enjoy broad bipartisan support. The law limits the collection and sharing of minors' personal information, restricts targeted advertising to known minors, requires platforms to provide parents with meaningful account management tools, and establishes new responsibilities surrounding parental consent and oversight.

The provision that generated the greatest legal controversy was Section 509.053, which required covered platforms to develop and implement comprehensive systems to prevent known minors from viewing content relating to suicide, self-harm, eating disorders, substance abuse, bullying, harassment, grooming, trafficking, and other categories identified by the Legislature. To accomplish this, platforms would have been required to maintain extensive filtering systems, keyword databases, human review processes, and other monitoring mechanisms.

While the objective of protecting children from genuinely harmful material is understandable, requiring private platforms to monitor and suppress broad categories of lawful speech raises difficult constitutional and statutory questions that ultimately reached the Fifth Circuit.

Why the Fifth Circuit Blocked the Content Filtering Requirement

Importantly, the Fifth Circuit did not hold that protecting children online is unconstitutional. Instead, the court resolved the dispute on federal statutory grounds.

The majority concluded that Texas's monitoring and filtering mandate conflicts with Section 230(c)(1) of the Communications Decency Act, which generally prevents states from treating online platforms as the publisher or speaker of third-party content. Because the SCOPE Act required companies to monitor, evaluate, filter, and remove user-generated content according to standards established by state law, the court held that the provision is preempted by federal law and therefore cannot be enforced.

The court emphasized that Section 230 protects not only against lawsuits arising from published content, but also against government efforts to impose liability based on editorial decisions involving whether third-party content should be displayed, restricted, or removed. In the court's view, Texas could not accomplish indirectly through state regulation what Congress had already addressed through federal law.

Because the court resolved the dispute on preemption grounds, it declined to decide the broader First Amendment questions presented by the case.

The Ruling Does Not Invalidate the Entire SCOPE Act

The Fifth Circuit did not strike down the SCOPE Act in its entirety. Rather, the court affirmed the preliminary injunction only as it relates to the monitoring and filtering requirements challenged by NetChoice and the Computer & Communications Industry Association. It also concluded that a separate group of plaintiffs lacked standing to challenge several additional provisions of the law, while recognizing that recent Supreme Court precedent foreclosed challenges to the age verification requirement applicable to websites primarily distributing harmful material.

Many portions of the SCOPE Act therefore remain intact. Requirements involving parental oversight, consumer privacy, limits on targeted advertising to known minors, parental access tools, and protections surrounding the collection and use of minors' personal information continue to form the backbone of Texas' approach to online child safety.

Ultimately, the decision narrows the law, but it does not eliminate it.

Section 230 Continues to Protect Free Speech Online

Section 230 has become one of the most debated laws governing the modern internet, yet this decision demonstrates why it continues to play such an important role.

Congress enacted Section 230 to encourage internet services to moderate content without exposing themselves to overwhelming liability for the speech of millions of users. Over the past three decades, courts have consistently interpreted those protections broadly, recognizing that imposing publisher liability on online platforms would fundamentally alter how the internet functions.

Critics often argue that Section 230 gives technology companies too much protection. The Fifth Circuit itself acknowledged those concerns, referencing criticism that Section 230 can sometimes operate as what Justice Clarence Thomas has described as a "get-out-of-jail-free card." Even so, the court concluded that any changes to this legal framework belong with Congress, not individual states attempting to create conflicting regulatory regimes. Judge James Ho reached a different conclusion in a partial dissent, arguing that the SCOPE Act regulates companies' own content curation decisions rather than treating them as publishers of third-party speech. His opinion illustrates that the legal debate surrounding Section 230 is far from settled and will likely continue in future litigation.

Regardless of where one stands in that debate, the Fifth Circuit's ruling reinforces the reality that Section 230 remains one of the primary legal safeguards protecting the free exchange of ideas online.

The Internet Remains One of the Last Bastions of Free Speech

For decades, the internet has democratized speech in ways that were previously unimaginable. Individuals no longer need a newspaper, television network, or radio station to reach a large audience. Grassroots organizations, independent journalists, policy advocates, and ordinary citizens can publish ideas, challenge prevailing narratives, organize communities, and hold government accountable with little more than an internet connection.

That openness should not be taken for granted.

While protecting children from genuine harm is an important public policy objective, lawmakers should recognize that government-directed content moderation carries significant constitutional and practical concerns. Once government gains authority to define categories of lawful speech that private companies must suppress, those powers rarely remain confined to their original purpose. The Fifth Circuit's decision reinforces an important principle. Government should not dictate what lawful speech private platforms must monitor, prioritize, or remove. That responsibility ultimately belongs to parents, users, and private platforms operating within constitutional limits, not government officials.

None of this suggests social media companies should be immune from criticism or accountability. Parents, consumers, shareholders, and the marketplace all have legitimate roles to play in influencing how platforms operate. But expanding government authority over lawful speech creates risks that extend well beyond any single policy debate.

Policy Implications for the 90th Texas Legislature

The Fifth Circuit's decision should encourage lawmakers to refine, not abandon, efforts to improve online safety.

The strongest portions of the SCOPE Act are those that empower families rather than expand government control over lawful speech. Privacy protections for minors, stronger parental controls, greater transparency regarding data collection and algorithms, and meaningful parental oversight tools all advance legitimate state interests while avoiding many of the constitutional and statutory concerns raised by mandatory content filtering.

By contrast, proposals requiring government-directed censorship of lawful speech deserve far greater scrutiny. Aside from the constitutional concerns, this decision demonstrates that federal law currently limits the extent to which states may compel platforms to monitor, filter, or remove user-generated content.

This ruling offers an important lesson for policymakers. Not every public policy objective should be pursued through government regulation, particularly when fundamental liberties are implicated. Future legislation should prioritize empowering parents rather than government, protecting consumer privacy instead of regulating lawful speech, and encouraging transparency without substituting state judgment for individual responsibility.

The Texas Liberty Compact Offers a Better Path Forward

Long before this case reached the Fifth Circuit, Texas Policy Research articulated these principles through the Texas Liberty Compact.

Among its ten reform priorities, the Texas Liberty Compact calls on lawmakers to Protect Free Speech and Digital Expression, recognizing that technological change should not become a pretext for expanding government authority over lawful online speech. The Compact acknowledges that protecting children online is important, but argues those efforts should respect constitutional safeguards, preserve parental authority, and avoid unnecessary government regulation of digital expression. Rather than allowing government to become the arbiter of lawful speech, policymakers should focus on protecting privacy, promoting transparency, and empowering families to make decisions that reflect their own values.

The Fifth Circuit's ruling reinforces many of those same principles. It reminds lawmakers that constitutional protections do not disappear online and that preserving individual liberty remains essential even when pursuing worthwhile public policy objectives.

Looking Ahead

The Fifth Circuit's decision should not be viewed as a rejection of efforts to protect children online. Rather, it is a reminder that those efforts must operate within constitutional limits and respect federal law.

Texas lawmakers still have numerous opportunities to strengthen parental authority, improve online privacy, increase transparency surrounding digital services, and provide families with better tools to manage their children's online experiences. Those reforms can meaningfully improve online safety without expanding government authority over lawful expression. As the 90th Texas Legislature convenes in January 2027, policymakers should remember that protecting children and protecting liberty are not competing objectives. Good public policy should accomplish both.

The internet remains one of the last great forums for free speech and open debate. Preserving that freedom while equipping parents to guide their children's online experiences is not only possible, but essential. Texas should continue leading on technology policy by defending both individual liberty and personal responsibility, rather than allowing government to become the ultimate referee of lawful speech.

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