(Texas Scorecard) – A new Texas law aimed at protecting children from harmful and obscene material online has been partially blocked by a federal judge for being “too vague.”
Under the SCOPE Act—Securing Children Online Through Parental Empowerment—digital service providers must register the age of users, prevent harm, create parental control tools, and aim to prevent advertisers from promoting adults-only services to minors.
SCOPE requires digital service providers to register each new user’s age and prevent the user from changing it later.
The act also requires digital service providers that publish content, where over one-third of it is considered harmful, to employ an age verification method for all users.
In July, technology industry groups Computer & Communications Industry Association and NetChoice sued Texas to stop the law from taking effect.
The groups claimed the act unconstitutionally “restricts all Texans’ ability to access and engage in protected speech online by requiring them to hand over their sensitive, personal data first.”
Additionally, the Foundation for Individual Rights and Expression filed a separate lawsuit in August against the act, stating that the SCOPE Act would cause platforms to censor themselves because their content could be considered as promoting harmful topics when the content was meant to open discussion about issues.
On Friday, U.S. District Judge Robert Pitman ruled that the law could take effect; however, he partially agreed with NetChoice’s demands, granting an injunction on the act’s “monitoring and filtering” requirements while the case continues.
The monitoring and filtering provisions require digital service providers to track, filter, and block material that promotes, glorifies, or facilitates “suicide, self-harm, eating disorders, substance abuse, stalking, bullying, harassment, grooming, trafficking, child pornography, [and] other sexual exploitation or abuse,” as well as material that is sexually explicit for minors.
Pitman raised the concern that some regulated topics in the act are “too vague” and will trample on freedom of speech and expression.
“The final issue for HB 18 is that the law fails to define key categories of prohibited topics, including ‘grooming,’ ‘harassment,’ and ‘substance abuse.’ At what point, for example, does alcohol use become ‘substance abuse?’ When does an extreme diet cross the line into an ‘eating disorder?’ What defines ‘grooming’ and ‘harassment?” questioned Pitman. “Under these indefinite meanings, it is easy to see how an attorney general could arbitrarily discriminate in his enforcement of the law.”
Pitman argued that the indefinite scope of enforcement would allow the state to selectively assign liability “‘on the basis of the content of the speech.’”
“Such a sweeping grant of censorial power cannot pass First Amendment scrutiny,” continued Pitman.
Although Pitman partially agreed with the plaintiff’s arguments, he concluded that their request for a temporary restraining order against the act is debatable.
The SCOPE Act took effect on September 1.
