From the Eleventh Circuit’s latest ruling in Netchoice v. Attorney General, authored by Judge Kevin Newsom and joined by Judges Robert Luck and Gerald Bard Tjoflat:
The State of Georgia recently enacted SB 351 to curb minors’ ability to create accounts on social-media platforms. The statute requires platforms within its scope to verify users’ ages, to bar minors under 16 from creating accounts absent parental consent, and to restrict the personal data they may use to show advertisements to users under 16.
The panel decided that Netchoice had not supplied sufficient evidence to demonstrate that the law is unconstitutional on its face:
Even in First Amendment cases, where the facial-challenge bar is lower than in other contexts, the plaintiff pursuing a facial challenge must show that “a substantial number of [the law’s] applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” Netchoice v. Moody…
To meet its facial-challenge burden, NetChoice must furnish the reviewing court with the data—either hard facts or, at a minimum, thorough briefing—needed to perform the Moody-mandated comparative analysis. It has not done so here. Indeed, NetChoice has not even provided a full roster of its own members to whom SB 351 applies. Instead, it lists only a representative sample: SB 351, NetChoice says, “regulates some websites operated by NetChoice members, including: (1) Dreamwidth; (2) Meta (Facebook and Instagram); (3) Nextdoor; (4) Pinterest; (5) Reddit; (6) Snap Inc. (Snapchat); (7) X; and (8) YouTube,” as well as “new members … such as Tumblr.” And although NetChoice argues that, in addition to its own members, SB 351 covers “other covered ‘social media’ websites,” it does not name any that (in whole or part) host unprotected speech. In this respect, we believe NetChoice repeats the same mistake it made before in Moody: treating the law as having “heartland” applications and focusing the challenge on that terrain.
We’ve learned the facial-challenge lesson the hard way. In Moody, the Supreme Court, even while largely agreeing with our merits analysis, faulted us for “mostly confin[ing] [our] analysis” to “certain heartland applications” instead of “address[ing] the full range of activities the law[ ] cover[ed].” The Court went on to observe that even if it were to attempt the facial analysis itself, it couldn’t “undertake the needed inquiries” because the “parties ha[d] not briefed the critical issues [t]here, and the record [wa]s underdeveloped.” The Court therefore vacated and remanded our case … “to consider the scope of the laws’ applications, and weigh the unconstitutional as against the constitutional ones.” In turn, … we … remanded [the case] to the district court[] for further development of the issues pertinent to the facial-challenge analysis.
The court notes that it is similarly hindered here. For the foregoing reasons, we conclude that NetChoice has failed to satisfy Moody because it hasn’t adequately addressed the “full range” of SB 351’s applications, and the record before us does not permit the weighing Moody requires.
The court also rejected Netchoice’s vagueness challenge:
The district court held, and NetChoice contends before us, that SB 351’s requirement that social-media platforms employ “commercially reasonable” age-verification mechanisms renders the statute unconstitutionally vague.
The problem, as NetChoice candidly acknowledges, is that “the district court raised this issue sua sponte.” … In granting injunctive relief on a theory that NetChoice never pleaded, the district court erred. See Clark v. Sweeney (2025) (holding that courts “transgress[ ] the party-presentation principle” when “granting relief on a claim that [the plaintiff] never asserted and that [the defendant] never had the chance to address”).
And the court rejected Netchoice’s 47 U.S.C. § 230 objection to the advertising restrictions:
Section 230 prohibits treating a social-media platform as “the publisher or speaker of any information provided by another information content provider.” … [But] 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 prohibiting them from targeting minors with ads based on personal information. This type of regulation falls outside § 230’s ambit, which preempts laws that seek to hold social-media platforms “liable for information originating with a third-party user.”
John Henry Thompson, Christopher Michael Carr, Riley B. Liu, Elijah J. O’Kelley, and Logan B. Winkles of the Georgia AG’s office represent the state.
