Justices ruled last week to block enforcement of the law while a lawsuit plays out in lower court.
Attorney Trey Dellinger, of AFA Action, says the state law includes three components. The first requires social media companies to verify the age of users to open an account.
"Secondly, the law says that if a user is a minor, they have to get parental consent before an account can be opened.
The third part of the law says that the social media platform has to take steps to prevent or mitigate harm to users from content that is harmful to minors," he explains. "So, things that would promote sex trafficking, obscene material, conversations with adults of a sexual nature, things like that that everybody would agree are harmful to children, it requires them to take steps to prevent or mitigate those harms."
When Mississippi passed the law, a trade association and advocacy group for online businesses called NetChoice filed a lawsuit. NetChoice said the law violated social media companies' First Amendment rights and successfully requested an injunction in trial court.
The Fifth Circuit Court of Appeals lifted the injunction when Mississippi appealed. That led to NetChoice going to the U.S. Supreme Court where justices said NetChoice had not met its burden to show that the law should not be allowed to go into effect temporarily pending the appeal to the Fifth Circuit.
“So, what this ruling means, is that the law can remain in effect while the case is on appeal to the Fifth Circuit, but it's not a final decision on the merits as to whether the law violates the First Amendment or ultimately will be enforceable,” Dellinger said.
Attorney General Lynn Fitch (R-Mississippi) told the justices that age verification could help protect young people from "sexual abuse, trafficking, physical violence, sextortion, and more," activities that Fitch noted are not protected by the First Amendment.
Dellinger agrees.
Driven by dollar signs
While NetChoice argues that the Mississippi law threatens privacy rights and unconstitutionally restricts the free expression of users of all ages, Dellinger does not see it that way.
"They care about their pocketbook. I think the state of Mississippi, the legislature and the governor who signed the law into effect … definitely wanted to protect children and not restrict the First Amendment rights of adults,” he said. “So, the law I think should be held constitutional, ultimately, but I will point out that there are a lot of considerations at play in these cases and of the three pieces of the law, the third piece may be the one that has the most difficulty surviving review of the court."
It won’t be soon, but one day the dust will settle. When it does, Dellinger predicts, the High Court will side with Mississippi.
"It may take a while to finally win that final victory because the state will have to play out its appeal to the Fifth Circuit, potentially go back to the trial court and have further proceedings. I suspect the case will be ultimately decided by the Supreme Court, but at the end of the day, the Supreme Court majority will find that the State of Mississippi has not violated the Constitution by insisting that social media companies allow parents to protect their children online."
