The Supreme Court declined an emergency request on Thursday to halt enforcement of a Mississippi law requiring age-verification for social media websites, allowing the statute to be enforced as litigation continues in a lower court.
The unsigned unanimous order issued by the high court included a concurrence from Justice Brett Kavanaugh, who argued NetChoice, the internet trade group that brought the petition to the Supreme Court’s emergency docket, failed to show that the “balance of harms and equities favors it at this time with its request.” While he and the other eight justices denied the emergency stay, Kavanaugh said he believes NetChoice is likely to succeed on the merits of the case.
“In short, under this Court’s case law as it currently stands, the Mississippi law is likely unconstitutional,” Kavanaugh wrote in his concurring opinion. “Nonetheless, because NetChoice has not sufficiently demonstrated that the balance of harms and equities favors it at this time, I concur in the Court’s denial of the application for interim relief.”
NetChoice said it was “disappointed” by the decision Thursday but called it an “unfortunate procedural delay” and said it remains confident it will ultimately win the case.
“Although we’re disappointed with the Court’s decision, Justice Kavanaugh’s concurrence makes clear that NetChoice will ultimately succeed in defending the First Amendment — not just in this case but across all NetChoice’s ID-for-Speech lawsuits,” NetChoice Litigation Center Co-Director Paul Taske said in a statement.
The law at the center of the emergency request, the Walker Montgomery Protecting Children Online Act, requires social media platforms to verify the ages of their users and obtain parental permission for users under the age of 18.
NetChoice was granted a preliminary injunction by a federal district court in June, halting enforcement of the law against its nine affected member platforms: Dreamwidth, Facebook, Instagram, Nextdoor, Pinterest, Reddit, Snapchat, X, and YouTube. The preliminary injunction was later stayed pending appeal by the U.S. Court of Appeals for the 5th Circuit in a July order in which the appeals court did not elaborate on its reasoning. Shortly after the appellate court’s stay, NetChoice filed a petition to the Supreme Court asking for the injunction to be restored.
“The Fifth Circuit’s stay order would transform how Mississippi residents access and experience fully protected online speech—and how social media websites curate, disseminate, and display this speech,” NetChoice said in its petition to the Supreme Court last month.
“This law would stifle the internet’s promise of ‘relatively unlimited, low-cost capacity for communication of all kinds,’ by requiring users to jump through substantial barriers to accessing speech that this Court — not to mention numerous courts across the country — have held unconstitutional in a variety of contexts,” the petition continued.
FEDERAL COURT RULES MISSISSIPPI CAN ENFORCE SOCIAL MEDIA AGE VERIFICATION LAW
Mississippi Attorney General Lynn Fitch argued to the high court that the appeals court’s stay should remain in place, saying NetChoice failed to show the necessary factors for the high court to act.
“This Court should deny the application. NetChoice satisfies none of the vacatur criteria. It has not shown that the stay order is demonstrably wrong, that this Court would likely review a Fifth Circuit decision rejecting the injunction, or that the equities support its extraordinary request,” Fitch wrote in response to NetChoice’s petition to the Supreme Court.