The National Coalition Against Censorship (NCAC), represented by the SMU Dedman School of Law First Amendment Clinic, filed an amicus brief this week in the United States Court of Appeals for the Fifth Circuit in the consolidated cases of Students Engaged in Advancing Texas v. Paxton and Computer & Communications Industry Association v. Paxton. The lawsuit challenges the Texas App Store Accountability Act, or SB 2420, which requires all users to verify their age before creating an account on any app store. Additionally, the Act requires minors to obtain parental consent each time they seek to download an app, and again obtain approval for every in-app purchase. The lower court paused enforcement of SB 2420, finding that the law likely violates the First Amendment. The State is appealing that ruling.
The brief argues that SB 2420 should be evaluated under traditional First Amendment principles, and the Supreme Court’s decision last year in Free Speech Coalition v. Paxton does not change how judges should scrutinize the Act. In Free Speech Coalition, the Supreme Court upheld a different Texas law requiring age verification to access websites where more than one-third of the content is sexual material harmful to minors. While the State has attempted to justify SB 2420 as a similar means of protecting minors, the law at issue here draws no distinction between apps which host sexual material and those that do not. Instead, SB 2420 attempts to burden access to an entire medium of communication—all apps, regardless of their content. This is impermissible under the First Amendment, and the brief urges the Fifth Circuit to affirm the lower court’s injunction against enforcement of SB 2420.