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

• Texas is asking the Fifth Circuit to revive SB 2420, a law requiring parental consent for minors' app downloads and purchases, signed in 2025.
• The state argues the law empowers families and controls data, while challengers claim it's a sweeping First Amendment violation.
• A federal judge in Austin initially blocked the law's enforcement, agreeing it may unconstitutionally restrict protected speech.
• Arguments before the Fifth Circuit focused on whether the law regulates commercial speech (intermediate scrutiny) or pure speech (strict scrutiny), referencing *Moody v. NetChoice*.
• The court's decision will clarify constitutional limits on state regulation of app distribution and parental consent, impacting First Amendment protections in the digital sphere.

The court's determination on whether strict or intermediate scrutiny applies will be a pivotal factor, influencing how future state laws targeting online content and access are evaluated.

Texas is urging the Fifth Circuit to reinstate Senate Bill 2420, known as the App Store Accountability Act, a law signed by Governor Greg Abbott in 2025 that mandates parental approval for nearly all app downloads and purchases by minors. The state contends this measure empowers families by granting them control over their children's data and privacy agreements within the digital marketplace. However, a coalition of tech industry groups, including the Computer & Communications Industry Association (CCIA), and student plaintiffs argue that the law constitutes a broad infringement on First Amendment rights, potentially blocking minors from accessing essential educational tools, news, music, and religious content without repeated parental consent.

A federal judge in Austin initially blocked the law's enforcement, agreeing with the challengers that it likely imposes unconstitutional restrictions on protected speech. During recent arguments before a Fifth Circuit panel, Texas Solicitor General William R. Peterson asserted that the state's intent is not to judge content, but rather to place decision-making power directly into the hands of parents, claiming the state is "indifferent to the content." He emphasized that the bill's sponsor's own words support this content-neutral stance.

Peterson further contended that the lower court erred by not performing the detailed analysis 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, raised questions about whether the law's mandatory age-rating system could be seen as a state endorsement of content and if the statute's broad scope, covering millions of applications, rendered it overbroad. Judge Wilson also inquired about the sufficiency of the lower court's *Moody* analysis and whether the law could withstand intermediate scrutiny.

Central to the legal dispute is the appropriate level of judicial review for SB 2420. Texas Solicitor General Peterson argued that the law primarily regulates commercial speech and conduct, specifically proposals to enter contracts that often involve sensitive actions like location tracking, access to contact lists, and data sharing. He maintained that such regulations should be subject to intermediate scrutiny, a less stringent standard than the strict scrutiny applied by the federal court, asserting that the state can impose generally applicable rules on a broad product category like software applications without treating every app as pure speech. Peterson underscored that there is "no free speech exception to generally applicable laws."

Conversely, Elizabeth Prelogar, representing the CCIA, firmly rejected this characterization, describing SB 2420 as a "sweeping restriction on speech." She highlighted that the law necessitates age verification for any Texan to access an app store and subsequently prevents minors from downloading any app or making in-app purchases without parental consent. Prelogar stressed that these restrictions apply universally to all forms of protected expression, including audiobooks, videos, social media, music, podcasts, newspapers, and religious content. She drew a parallel to *Brown v. Entertainment Merchants Association*, arguing that a state could not demand age proof to enter a bookstore or require parental consent for a minor to purchase a book, movie, or video game. Prelogar also argued that a facial injunction was appropriate given that app stores are well-understood entities engaged in First Amendment activity by providing access to protected expression, distinguishing the case from *Moody v. NetChoice* where the scope of the law was less clear.

Adam Sieff, representing the student plaintiffs and Students Engaged in Advancing Texas, further elaborated that the law extends far beyond commercial speech, directly impacting students' ability to use apps for organizing school activities, academic study, college applications, listening to music, and connecting with family. Despite these arguments, Peterson urged the Fifth Circuit to at least rule that intermediate scrutiny applies and that the lower court incorrectly deemed the law content-based. The outcome of this *Texas SB 2420 Fifth Circuit challenge* will significantly shape the landscape of digital regulation.

The Fifth Circuit's impending decision on the *Texas SB 2420 Fifth Circuit challenge* carries substantial implications for the tech industry and the future of digital rights. For lawyers advising tech companies or app developers, this ruling will provide crucial clarity regarding the constitutional boundaries of state authority to regulate app distribution and impose parental consent requirements. A decision upholding SB 2420 could set a precedent for other states to enact similar legislation, potentially leading to a fragmented regulatory environment across the United States for app developers.

The case directly tests the application of First Amendment protections to digital platforms and the classification of app-related transactions as either pure speech or commercial speech. The court's determination on whether strict or intermediate scrutiny applies will be a pivotal factor, influencing how future state laws targeting online content and access are evaluated. This ruling will define the extent to which states can intervene in the digital interactions of minors, balancing parental control with minors' access to a wide array of information and services. The outcome will therefore have a lasting impact on the legal framework governing apps, parental consent, and First Amendment rights in the digital age, particularly concerning *Fifth Circuit First Amendment apps* and the evolving interpretation of *commercial speech intermediate scrutiny*.

Lawyers advising tech companies or app developers should closely monitor the Fifth Circuit's decision on Texas SB 2420. The ruling will clarify the constitutional limits on state regulation of app distribution and parental consent requirements, potentially setting a significant precedent for First Amendment and commercial speech protections in the digital sphere.

Source: Original reporting via Courthouse News Service