An appellate court ruled in late November that a Florida law severely limiting minors’ ability to hold social media accounts and imposing age-verification and parental-confirmation requirements on platforms “likely” passes First Amendment muster and can take effect. The two-to-one decision by the US Court of Appeals for the Eleventh Circuit in Computer & Communications Industry Association (CCIA) v. Uthmeier stays (suspends)—while on appeal—District Judge Mark Walker’s June preliminary injunction that had blocked the law’s enforcement. Walker, as previously explained, concluded Florida’s law (House Bill 3) was “likely unconstitutional.”

This marked the second time in five months that an appellate court stayed, while pending appeal, a lower court injunction that put the brakes on a social media age-verification and parental-consent law. Last July, the Fifth Circuit in NetChoice v. Fitch stayed—without explanation—Chief US District Judge Halil Suleyman Ozerden’s preliminary injunction blocking Mississippi from enforcing House Bill 1126 against platforms owned by eight of NetChoice’s members. I earlier addressed the back-and-forth between the district and appellate courts in Fitch.

To be clear, the Eleventh and Fifth Circuits’ decisions are not their final rulings on the substantive merits of the First Amendment lawsuits filed by CCIA and NetChoice (NetChoice is co-plaintiff with CCIA in Uthmeier). Nonetheless, by staying the district court-granted preliminary injunctions, the appellate courts let previously blocked, speech-restrictive Florida and Mississippi laws take effect while the merits of the lower court decisions are appealed. As Florida Attorney General James Uthmeier saber-rattlingly posted regarding the Eleventh Circuit’s ruling, House Bill 3 “is now the law of the state and will be enforced. We’re putting all big tech companies on notice: endanger our kids and find out what happens!”

Why this turmoil, especially given NetChoice’s string of First Amendment victories, winning preliminary or permanent injunctions against other states—for example, Georgia (a preliminary injunction also now on appeal to the Eleventh Circuit), Louisiana, and Utah—that constrain minors’ right to speak and access lawful content on social media platforms? The Eleventh Circuit’s fractured Uthmeier ruling reveals key disagreements and emerging battles over:

(1) the scope and relevance of the Supreme Court’s opinions in Brown v. Entertainment Merchants Association and Free Speech Coalition v. Paxton;

(2) the appropriate standard of scrutiny (strict or intermediate) for examining statutes such as Florida’s, including whether public, user-to-user “social speech” is a subject matter that triggers strict scrutiny;

(3) how loosely the narrow-tailoring prong of intermediate scrutiny should be applied; and

(4) the relative importance of variables such as granting deference to legislative bodies, respecting minors’ First Amendment rights, privileging parental—not government—authority, preserving online anonymity, and guarding against chilling effects on expression.

This post reviews Florida’s law and highlights some basic yet critical differences in the majority and dissent’s analyses. Future posts will delve into the four above-noted areas of contention, as their relevance likely stretches beyond Uthmeier.

The Law. Florida’s statute bars anyone under 14 years of age from holding an account on social media platforms that feature one of four supposedly “addictive features,” including push notifications, alerts, and “personal interactive metrics” such as likes, shares, and reposts of user content. Minors who are 14 or 15 can hold accounts, but they first need parental or guardian permission. This entails verifying ages and confirming someone is a parent or guardian. Penalties are stiff: A single knowing or reckless violation constitutes “an unfair and deceptive trade practice” and can result in a $50,000 fine.

Seeing Things Differently. The Uthmeier majority, which let House Bill 3 take effect pending appeal largely because it found the law was likely constitutional, was comprised of Elizabeth Branch and Barbara Lagoa. They were nominated to the court by President Donald Trump during his first term. Conversely, dissenting Judge Robin Rosenbaum called Florida’s law “plainly unconstitutional on its face” and concluded Walker’s preliminary injunction should remain in effect during the merits appeal. She was nominated to the Eleventh Circuit by President Barack Obama.

It wasn’t just the bottom-line decision about whether to stay Walker’s injunction on which the majority and dissent disagreed; it was also on how they reached their conclusions. Specifically, they diverged on fundamentals affecting almost any constitutional free-speech analysis—namely, whether a law is content based or content neutral and, in turn, whether strict or intermediate scrutiny applies for analyzing it.

The majority deemed Florida’s law “likely content neutral and . . . subject to the more forgiving intermediate scrutiny” test, which the majority said the law would “likely satisfy.” Rosenbaum, however, determined the law is “content based and warrants strict scrutiny.” She didn’t need to apply strict scrutiny because she found the law “fails even [an] intermediate-scrutiny-light analysis.” Whether this split on free-speech fundamentals affects the Eleventh Circuit’s forthcoming and possibly expedited ruling on the merits of Florida’s appeal remains to be seen.