Eleventh Circuit Greenlights Florida and Georgia Social-Media Laws Protecting Kids—Part 2

See Part 1 on ruling on Florida law

I’ll now summarize the Eleventh Circuit panel’s ruling (NetChoice v. Attorney General) on Georgia’s law. (As often when summarizing, I borrow heavily from the court’s opinion but won’t always bother with the clutter of quotation marks.)

Georgia’s SB 351 requires various social-media platforms to prohibit minors under the age of 16 from creating accounts without their parents’ consent and to limit the personal data they use to display ads to users under 16.

On a challenge brought by the Internet trade organization NetChoice, a district court ruled that SB 351 likely violated the First Amendment on its face and was preempted by § 230 of the Communications Decency Act, and it enjoined Georgia officials from enforcing it.

The Eleventh Circuit panel, in an opinion by Judge Kevin Newsom, vacated the injunction. The court ruled (as it did in the Florida case) that NetChoice had failed to meet its burden in a facial challenge. It had to show that a substantial number of SB 351’s applications are unconstitutional, judged in relation to its plainly legitimate sweep. But it failed to provide the data necessary to conduct the comparative analysis that the Supreme Court’s 2024 decision in Moody v. NetChoice requires. (I won’t attempt to summarize the full analysis, which interested readers can find at pp. 14-22.)

The court also ruled that SB 351’s advertising provision isn’t preempted by section 230:

SB 351’s advertising provision doesn’t treat social-media platforms as publishers or speakers of information provided by others. Rather, it regulates how social-media platforms themselves act by forbidding them from targeting minors with ads based on personal information.

The district court did not rule on NetChoice’s as-applied challenge, so the Eleventh Circuit did not address it.

One important open question on remand is whether the “raft of enumerated exceptions” to the social-media platforms covered by SB 351 (see pp. 3-4) renders it content-based.