Key Points

  • The Eleventh Circuit held that NetChoice has associational standing to challenge Georgia's SB 351 on behalf of its member social-media platforms.
  • The court held that NetChoice failed to meet its burden under Moody v. NetChoice to establish the full scope of SB 351's applications and to show that its unconstitutional applications substantially outweigh its constitutional ones.
  • The court held that the district court violated the party-presentation principle by enjoining the law on a vagueness theory, based on the term "commercially reasonable," that NetChoice never pleaded.
  • The court held that Section 230 of the Communications Decency Act does not preempt SB 351's ban on targeting minors with ads based on their personal information, because the provision regulates platforms' own decisions.
  • The court affirmed the standing ruling, vacated the preliminary injunction and remanded without reaching the merits of the First Amendment claim or the other preliminary-injunction factors.

A federal appeals court on Thursday vacated a preliminary injunction that had blocked Georgia from enforcing a law requiring social-media platforms to verify the ages of their users and to obtain a parent's consent before children under 16 open accounts.

A three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit held that NetChoice, an Internet trade organization that sued to stop the law, has standing to challenge it on behalf of its member platforms. But Judge Newsom, writing for a panel that also included Judges Luck and Tjoflat, concluded that the group had not met the Supreme Court's demanding 2024 test for facial challenges.

The panel also rejected the trial court's conclusions that the law, known as SB 351, is unconstitutionally vague and that Section 230 of the Communications Decency Act preempts its limits on targeted advertising to minors. The ruling lifts the order barring enforcement of the law's challenged provisions. It also holds that a group challenging a platform law on its face must document the full range of sites the law reaches, including sites hosting speech that is unprotected for minors.

SB 351 requires covered platforms to "make commercially reasonable efforts to verify the age[s] of account holders," to prohibit children under 16 from holding accounts without parental consent, and to bar ads aimed at account holders under 16 based on any personal information other than age and location. The law defines a social-media platform broadly but exempts services whose "predominant or exclusive function" is email, streaming, online shopping, gaming or one of more than a dozen other activities.

NetChoice sued on May 1, 2025, two months before the law was slated to take effect. In a June 26, 2025, order, the U.S. District Court for the Northern District of Georgia said it lacked the factual record to decide an as-applied claim. It ruled that SB 351 was likely a content-based speech restriction that fails strict scrutiny and enjoined its enforcement. Georgia's attorney general appealed.

On appeal, the state argued that NetChoice could not sue for its members because they differ widely, from "massive corporations" like Meta to "small, niche platform[s]" like Dreamwidth, and because some members, such as Reddit and X, allow pornography. The panel rejected that argument at the standing stage. "SB 351 imposes the same burden on all covered platforms by requiring them to institute age-verification measures and to obtain parental consent for minors—regardless of any particular platform's content, size, or technological ability," Judge Newsom wrote.

The pornography point mattered later in the opinion. "The state is on to something—as our ensuing Moody analysis reflects," Newsom added.

Under Moody v. NetChoice, a facial challenger must establish what a law covers and then show that "the law's unconstitutional applications substantially outweigh its constitutional ones." NetChoice argued that identifying the regulated sites as social-media platforms was enough, citing a 2017 Supreme Court decision, Packingham v. North Carolina. The panel said NetChoice was "overreading Packingham," which addressed the merits of a claim rather than a facial challenger's burden.

The panel sorted the law's applications into three groups: "conventional" platforms that host fully protected speech; "hybrid" platforms, like X and Reddit, that also allow some pornography; and "rogue" platforms hosting only unprotected speech, such as a hypothetical "Incitement.com." In the panel's view, a content-based restriction would face strict scrutiny on the first group and only rational-basis review on the third. Its application to pornography, which is unprotected for minors, would face intermediate scrutiny, which at least in theory could apply to the hybrid platforms.

NetChoice contended that the state had never identified a site with literally no protected speech. The panel held that Moody places the burden on the challenger instead. "We acknowledge the distinct possibility that SB 351 overwhelmingly applies to platforms that overwhelmingly host protected speech," Newsom wrote, conceding that the law's unconstitutional applications would then probably outweigh its constitutional ones. "But however intuitive, that sort of impressionistic judgment won't satisfy Moody's stringent demands."

The court faulted NetChoice for listing only a handful of the member companies the law covers, among them Meta's Facebook and Instagram, Pinterest, Snapchat and YouTube, and for failing to name any other covered site that hosts unprotected speech. "NetChoice hasn't provided even a full list of its own members to which SB 351 applies," the opinion said.

The court recalled its own experience. In Moody, the Supreme Court vacated an earlier Eleventh Circuit ruling in a NetChoice case from Florida for confining its analysis to "certain heartland applications." "We've learned the facial-challenge lesson the hard way," Newsom wrote of that episode, before turning back to Georgia's law. "We are similarly stymied here."

On vagueness, NetChoice had argued that the undefined phrase "predominant or exclusive function" left companies unable to tell whether the law covers them. The district court instead held, on its own initiative, that the term "commercially reasonable" made the statute vague. The panel held that this violated the party-presentation principle. "In granting injunctive relief on a theory that NetChoice never pleaded, the district court erred," Newsom wrote.

Section 230 bars treating an online platform as "the publisher or speaker of any information provided by another information content provider." The panel rejected the district court's view that the federal law preempts SB 351's advertising provision, reasoning that the provision regulates the platforms' own conduct. "SB 351 imposes liability on social-media platforms for their own decisions, not the speech of others," Newsom wrote, adding that a platform "can comply with it by choosing not to use minors' personal information when targeting their accounts with ads." The Fifth Circuit reached a similar conclusion in 2024 about a Texas age-verification law, the panel noted.

Because the facial challenge failed, the panel did not decide whether SB 351 violates the First Amendment or address the other preliminary-injunction requirements. It affirmed the standing ruling, vacated the injunction and remanded the case to the district court for further proceedings consistent with its opinion. The appeals court did not reach NetChoice's as-applied challenge, which the district court had declined to decide without a factual record.