# NetChoice v. Fitch

NetChoice v. Fitch is the lawsuit that is in the Fifth Circuit Court of Appeals challenging an internet law in Mississippi by the name of the Walker Montgomery Protecting Children Online Act. The bill had passed out of Mississippi's State House and Senate unanimously and had bipartisan support. It then was signed by Mississippi Governor Tate Reeves on April 30, 2024, and was originally intended to take effect on July 1, 2024.

## Law being Challenged

The law being challenged requires digital service providers to verify the age of all users on their service by making commercially reasonable efforts to verify the age of all their users and if that user is under 18 years of age, they must have parental consent which can done by providing a form for the parent or legal guardian of a minor to sign, providing a toll-free phone number to call, coordinating a call with the parent or guardian of a minor, providing an email for the parent or guardian to respond to or any other commercially reasonable method of obtaining consent.
The law requires digital service providers to then delete any information collected by the age verification process once they have confirmed the identity of the minor's parent or guardian. Digital service providers are also required to limit their collection or selling of a minor's personal or geolocation data and cannot show personalized advertisements that involve harmful material to minors, they are also required to limit a minor's exposure to content that promotes or facilitates harms such as physical violence, online bullying, eating disorders, grooming or trafficking.
Violating the law is considered an unfair or deceptive trade practice and violating under 75-24-5 of Mississippi code an unfair or deceptive trade practice under Mississippi law under 75-24-5 can result in fines that are up to 10,000 dollars per violation or Imprisonment of up to 1 year or a fine that is up to 1,000 dollars or both, and if the person has been convicted three or more times in the past five years that will be charged with a felony and will be sentenced to not less than 1 years of imprisonment and not more than 5 years of imprisonment.

## Southern District Court of Mississippi

On June 7, 2024, the trade association NetChoice sued Mississippi Attorney General Lynn Fitch in Federal District Court for the Southern District of Mississippi. In the complaint NetChoice claimed that the law violates "bedrock" principles of constitutional law and that the law violates the First Amendment rights of both minors and adults and is preempted by Section 230 because the law requires services to verify the age of users and must "prevent and mitigate" exposure to a list of vaguely defined societal ills and claim that the list of content to prevent and mitigate is so vague that anything from Romeo and Juliet to movies like Despicable Me and Home Alone could be censored because of the law. The same day they made their complaint they filed a motion for a Preliminary Injunction and Temporary Restraining Order.
Mississippi would respond to NetChoice's motion for a Preliminary Injunction and Temporary Restraining Order on June 18, 2024, claiming that the Court should dismiss NetChoice's motion because the law regulates conduct and not speech and that the law should be subject to rational basis review because of the Supreme Court case City of Dallas v. Stanglin and that if strict scrutiny applies that the law survives it, they also claim that NetChoice lacks standing to bring suit. The same day Mississippi filed a motion to dismiss the case the Electronic Fontier Foundation filed a brief in support of NetChoice in which they talk about the differences between online age verification and offline age verification and how online age verification and how the law burdens adult's access to protected speech.
NetChoice would respond on June 21, 2024, to Mississippi's motion to dismiss claiming that the claim by Mississippi that the law doesn't regulate speech and only conduct files in the face of the laws text and binding Supreme Court cases such as Brown v. Entertainment Merchants Association, they also claim that they have standing to bring suit. There would later be a Hearing on NetChoice's motion for a Preliminary Injunction and Temporary Restraining Order on June 26, 2024.
The law was later enjoined by Judge Halil Suleyman Ozerden on July 1, 2024.
His reasoning for granting the injunction was because he found that the act triggers strict scrutiny which means that the law must have a compelling government interest and must be narrowly tailed to that interest and be the least restrictive means.
He said that there was a compelling interest in protecting minors from harms online, however the law was overinclusive because the law burden adults and treated all minors from newborn to 17 years old as the same regardless of maturity, and was under underinclusive because minors could make accounts on some but not all services. He also found the prevent and mitigate section of the law were underinclusive a minor could just search or request material they would have otherwise been prohibited from seeing.
Other things he found were that the laws definition of digital service provider and its prevent and mitigate section were unconstitutionally vague. He however didn't question that Mississippi had good intentions behind passing the law.
Two days after the Court enjoined the law, on July 3, 2024, Mississippi requested the court to temporarily unblock the law pending appeal asking them to come to a decision no later than July 17, 2024.
Twelve days after Mississippi's request the court to unblock the law Judge Halil Suleyman Ozerden denied Mississippi's request on July 15, 2024.
On July 22, 2024, Judge Halil Suleyman Ozerden would close the case in the District Court.

## Fifth Circuit Court of Appeals

On July 5, 2024, Mississippi appealed the case to the Fifth Circuit Court of Appeals.
One day after the District Court denied Mississippi request to unblock the law pending appeal, on July 16, 2024, Mississippi would request the Fifth Circuit of Appeals to unblock the law pending appeal, claiming that the state is likely to win because the case was a facial challenge to Mississippi's law because the Supreme Court recently rejected a facial challenge to laws in Florida and Texas around content moderation in the case Moody v. NetChoice. They also claim that the court will likely reject NetChoice's claims that the law is unconstitutionally vague, they claimed as well that the law is subject to rational basis review or at most intermediate scrutiny because the law regulates the non-expressive conduct of a website and not their content.