In Computer & Communications Industry Association v. Paxton, the U.S. Court of Appeals for the Fifth Circuit held that Section 230 of the Communications Decency Act likely preempts portions of Texas legislation requiring covered social media platforms (referred to as DSPs) to monitor and filter content for minors (the Monitoring and Filtering Provision).
The opinion addresses a central question in Section 230 litigation: whether Section 230 bars legislation or litigation that nominally targets social media companies’ curation and/or product-design decisions but, in practice, seeks to impose liability on platforms for publishing third-party content. A divided Fifth Circuit panel found that Section 230 likely preempts the Monitoring and Filtering Provision because it would require DSPs to monitor, alter and/or remove third-party content from their platforms.
This distinction and courts’ willingness to look beyond the stated purpose of legislation (or lawsuits) is especially important given states’ focus on regulating teens’ social media usage and a wave of litigation against social media companies that rely on products liability and other similar theories to sidestep Section 230.
Section 230: Background and Purpose
Congress enacted Section 230 in 1996 to, among other things, promote the development of the internet, preserve a vibrant and competitive online free market “unfettered by Federal or State regulation,” and incentivize platforms to voluntarily develop blocking and filtering tools. 47 U.S.C. § 230(b). Under Section 230, “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider,” id. § 230(c)(1), and “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section” id. at § 230(e)(3).
In practice, Section 230 provides online platforms broad immunity against lawsuits arising from the content of user posts and from legislation that would require them to remove third-party content. Courts have long interpreted Section 230 to immunize websites from liability arising from publishers’ “traditional editorial functions—such as deciding whether to publish, withdraw, postpone or alter content.” Zeran v. Am. Online, Inc.,129 F.3d 327, 330 (4th Cir. 1997). Section 230 immunity is not limited to defamation/libel claims and has been applied to “causes of action of all kinds.” Marshall's Locksmith Serv. Inc. v. Google, LLC, 925 F.3d 1263, 1267 (D.C. Cir. 2019).
The Securing Children Online Through Parental Empowerment Act
Texas enacted the Securing Children Online Through Parental Empowerment Act or “SCOPE Act,” to regulate certain “digital service providers” that operate social media services used by minors. In particular, the SCOPE Act’s Monitoring and Filtering Provision required covered platforms to develop and implement a strategy to prevent known minors from being exposed to specified categories of harmful content. Tex. Bus. & Com. Code § 509.053. These requirements applied to DSPs that allowed users to socially interact, create profiles or create/post content that could be viewed by others. Id. at § 509.002.
Computer & Communications Industry Association and NetChoice L.L.C. challenged the Monitoring and Filtering Provision, and a separate group challenged additional SCOPE Act provisions, including an age verification requirement. In August 2024, the District Court for the Western District of Texas issued a preliminary injunction blocking several provisions of the SCOPE Act, including the Monitoring and Filtering Provision. Texas appealed.
The Fifth Circuit’s Decision
A divided panel of the Fifth Circuit[1] affirmed the district court’s decision granting a preliminary injunction as to the Monitoring and Filtering Provision, holding that it is likely preempted by Section 230(c)(1).[2]
The court began by noting that Section 230 provides DSPs “broad immunity” against “all claims stemming from their publication of information created by third parties.” (Op. at 26 (quoting Doe v. MySpace, Inc., 528 F.3d 413, 418-20 (5th Cir. 2008).) While the court acknowledged that Section 230 does not bar claims depending purely on whether a party complies with a statute, it rejected Texas’s argument that the Monitoring and Filtering Provision merely imposed affirmative statutory requirements. Instead, the court looked to the practical effect of the Monitoring and Filtering Provision and held that it was likely preempted because enforcement actions would stem from “DSPs’ actions as publishers, that is, from their monitoring, screening, and deletion of content.” (Op. at 28.) Therefore, in practice, it would hold DSPs liable for “deciding whether to publish, withdraw, postpone, or alter content.” (Op. at 28 (quoting A.B. v. Salesforce, Inc., 123 F.4th 788, 795 (5th Cir. 2024).) This contrasts with age verification requirements because the Monitoring and Filtering Provision “is all about filtering content, and is thus preempted.” (Op. at 29 – 30.)
The court also rejected Texas’s argument that DSPs’ First Amendment protections narrow their Section 230 immunity. Labeling that argument a “false choice,” the court found that the First Amendment and Section 230 work together because “the First Amendment protects the DSPs’ editorial discretion from unconstitutional government regulation, and Section 230 protects those same decisions from civil liability based on third-party content.”[3] (Op. at 32-33.)
Judge Ho’s Partial Dissent
Judge Ho dissented from the majority’s holding that Section 230 likely preempts the SCOPE Act’s Monitoring and Filtering Provision. He asserted that the Monitoring and Filtering Provision regulates “curation,” not publication, because while the posts that appear on a child’s feed are third parties’ speech, “the algorithm that social media companies design to curate that feed constitute[s] the first-party speech of the companies.” (Op. at 37.) Judge Ho contended that recent First Amendment decisions support this distinction because they treat curation as first-party speech. Finally, he asserted that the Monitoring and Filtering Provision does not impose liability for publishing third-party speech, because it does not hold DSPs liable if they implemented adequate curation practices.
Key Takeaways and Implications
This split reflects a broader doctrinal divide. Under the majority’s approach, Section 230 bars curation requirements that would require filtering, and moderating third-party content because they would impose liability on companies for publishing third-party content. By contrast, Judge Ho’s approach focuses on the platform’s conduct and concludes that laws dictating how platforms curate content do not impose liability for publishing third-party content.
This issue is playing out around the country as states seek to regulate social media companies and plaintiffs attempt to hold social media companies liable. State laws requiring platforms to monitor, filter, remove or suppress user-generated content are likely to face substantial Section 230 challenges, and Computer & Communications suggests that courts may look past the stated goal of legislation or litigation and consider whether it targets the product’s design (irrespective of the content it serves) or seeks to hold defendants liable for publishing allegedly harmful content.
[1] Judge Dana M. Douglas wrote the majority opinion, joined by Judge Patrick Higginbotham. Judge James Ho concurred in part and dissented in part, disagreeing with the majority’s Section 230 preemption analysis.
[2] The court separately held that the Students Engaged in Advancing Texas (SEAT) plaintiffs lacked standing to challenge several provisions because their alleged injuries depended on speculative predictions about how the SCOPE Act would be enforced and how platforms might respond to the law. It also held that the SEAT plaintiffs’ challenge to age verification requirements was foreclosed by recent Supreme Court precedent. (Op. at 25 n.11.)
[3] Since the court held that Section 230 preempts the Monitoring and Filtering Provision, it did not rule on whether the Monitoring and Filtering Provision is constitutional.
