NetChoice v. Jason S. Miyares
Issue
In *NetChoice v. Miyares*, Virginia's Attorney General argues that a federal district court improperly blocked enforcement of Virginia SB 854 — a law imposing default daily time limits on minors' social media use that parents can override — without first performing the application-by-application analysis that the Supreme Court's 2024 decision in *Moody v. NetChoice* requires before a law can be enjoined on its face. The brief also presses two substantive questions: whether SB 854's exclusion of platforms offering news, sports, and entertainment content is a content-neutral functional distinction or a subject-matter carveout that triggers heightened scrutiny, and whether a parental-override time limit survives intermediate scrutiny as a narrowly tailored child-protection measure.
What Happened
Filed in the Eastern District of Virginia at a post-preliminary injunction stage, this memorandum supports the defendant's motion to stay the district court's February 27, 2026 order blocking SB 854 while the Fourth Circuit considers an appeal docketed as No. 26-1252. The Fourth Circuit had previously denied a stay without prejudice because the state had not first sought relief from the district court, prompting this filing. The state argues the district court committed a threshold procedural error under *Moody* by skipping the requirement to catalog and weigh all of the statute's applications before concluding the law is facially unconstitutional — citing recent Ninth and Sixth Circuit decisions that vacated injunctions for the same omission. On the merits, the state characterizes SB 854's definitional exclusions as content-neutral speaker distinctions rather than subject-matter carveouts, and relies on *Free Speech Coalition v. Paxton* (2025) and *Uthmeier* (11th Cir. 2025) to argue the law satisfies intermediate scrutiny. The brief frames the continued injunction as irreparable sovereign harm and dismisses NetChoice's claimed burden as speculative and commercially motivated.
Why It Matters
A wave of near-identical state laws restricting minors' access to social media is simultaneously moving through federal courts in Florida, Texas, and elsewhere, making the procedural and substantive arguments here broadly consequential. If the Fourth Circuit stays the injunction on *Moody* procedural grounds, it will signal to district courts nationwide that facial First Amendment challenges to platform-regulation statutes must clear a significantly higher bar before any injunction issues — a development that would reshape litigation strategy in dozens of pending cases. The content-neutrality argument carries equally high stakes: if a statute that facially names "news, sports, and entertainment" in its definitional exclusions can nonetheless be characterized as a neutral functional distinction, states gain a workable template for drafting minor-protection laws that avoid strict scrutiny. The brief's success or failure will also clarify how far *Free Speech Coalition v. Paxton*'s intermediate-scrutiny reasoning extends beyond age-verification-for-explicit-content contexts into the time-limit-with-parental-override framework Virginia has chosen.
Related Filings
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