Texas urges Fifth Circuit to revive law restricting kids’ app downloads

What the state hails as a measure empowering families, students and tech groups call an unconstitutional lock on speech.(CN) — Texas insisted Tuesday to a Fifth Circuit panel that a blocked law that would force parents to approve nearly every app their children download or buy gives families control over kids’ data and privacy contracts.But tech groups and student plaintiffs call the law a sweeping First Amendment violation that would lock minors out of study tools, news, music and religious content unless a parent consents each time.Senate Bill 2420, the App Store Accountability Act, was signed into law by Governor Greg Abbott in 2025. Students, parents and the Computer & Communications Industry Association sued, and a federal judge in Austin blocked the law’s enforcement, agreeing it may unconstitutionally restrict access to protected speech.Texas Solicitor General William R. Peterson insisted the state is not deciding what content is harmful.“This bill doesn’t judge content. It doesn’t judge content at all. It puts the decision-making power for content in the hands of parents,” Peterson said, citing the bill sponsor’s own words. “We are indifferent to the content. We don’t care what the content is.”The lower court, Peterson added, failed to perform the detailed mapping of constitutional and unconstitutional applications required by the Supreme Court’s 2024 decision in Moody v. NetChoice.U.S. Circuit Judge Cory T. Wilson, a Donald Trump appointee, questioned whether the required age-rating scheme essentially puts the state’s endorsement on content and whether the law is overbroad because it covers millions of apps.He also asked whether the lower court’s Moody analysis was too brief and whether the statute would survive intermediate scrutiny.Peterson argued the law regulates commercial speech and conduct at most — proposals to enter contracts that often involve location tracking, contact lists and data sharing — and should face intermediate scrutiny rather than the strict scrutiny a federal court applied.“Software applications are a remarkably broad, incredibly diverse product category,” Peterson said. He argued the state may impose generally applicable rules on the entire category without treating every app as pure speech.“There is no free speech exception to generally applicable laws,” he said.Elizabeth Prelogar, arguing for the industry association, rejected that framing.“SB 2420 is a sweeping restriction on speech,” she said. “The law requires age verification for anyone in Texas to access an app store, and then the law prevents minors from downloading any app or making any in-app purchase without obtaining parental consent. These restrictions apply across the board to all manner of protected speech, audiobooks, videos, social media, music, podcasts, newspapers, religious content and so on.”A state could never demand age proof to enter a bookstore or require parental consent before a minor buys a book, movie, or video game, she said, citing Brown v. Entertainment Merchants Association.Prelogar said a facial injunction was proper because app stores are known and all engage in First Amendment activity by providing access to protected expression. She distinguished the case from Moody, where uncertainty existed about who and what the law covered.Adam Sieff, representing the coalition Students Engaged in Advancing Texas and the minor plaintiffs, said the law goes far beyond commercial speech.“It restricts the distribution of apps to my clients, students who use those apps to organize for school activities, to study, to apply to college … to listen to music, to spend time with family,” he said.But Peterson urged the court at least to hold that intermediate scrutiny applies and that the lower court erred in treating the law as content-based. After the lower court blocked the law’s enforcement, the Fifth Circuit issued a stay on that injunction, which the Supreme Court reaffirmed in July.The panel, which also included U.S. Circuit Judges Carl E. Stewart, a Bill Clinton appointee, and James E. Graves, a Barack Obama appointee, took the case under advisement and said it would decide “as expeditiously as we can.”Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads