Computer & Comm v. Ken Paxton

Amicus: American Center for Law & Justice

Issue: In *Computer & Communications Industry Association v. Paxton*, the American Center for Law & Justice argues that Texas SB 2420—which requires age verification and parental consent before minors may download apps—regulates commercial contracting capacity rather than protected speech, and therefore falls outside First Amendment scrutiny entirely. The question is whether a state can reframe access to a general-purpose digital distribution platform as a minor-disaffirmance transaction, simultaneously avoiding strict scrutiny under the First Amendment and preemption under § 230, while affirmatively grounding the law in Fourteenth Amendment parental liberty rights.

The ACLJ filed this amicus curiae brief at the Fifth Circuit in support of Defendant–Appellant Ken Paxton, urging reversal of the Western District of Texas decision that struck down SB 2420. The brief advances three coordinated theories: that app downloads are commercial license agreements governed by Texas's minor-disaffirmance doctrine rather than protected expressive transactions; that SB 2420 implements rather than displaces parental authority under the *Meyer–Pierce–Yoder–Troxel* line of cases; and that *Free Speech Coalition v. Paxton* (2025), which upheld age verification for pornographic websites, normalizes online age verification as a constitutionally permissible burden. The brief reads *Brown v. Entertainment Merchants Ass'n* as a parental-autonomy decision rather than a protected-speech-category decision, an interpretation that would substantially narrow that precedent's protective reach for minors seeking access to expressive digital content. The ACLJ asks the Fifth Circuit to uphold SB 2420 in full.

If the Fifth Circuit credits the contract-not-speech framing, states would gain a widely replicable template for imposing age-verification and parental-consent regimes on digital platforms without triggering either First Amendment strict scrutiny or § 230 preemption—a structural gap with significant national implications for online speech. The brief's aggressive extension of *Free Speech Coalition v. Paxton* beyond obscenity-adjacent adult content to general-purpose app stores—which carry news, political commentary, and creative works fully protected for minors and adults alike—presents a limiting-principle question the Fifth Circuit will need to address directly. The recharacterization of *Brown v. Entertainment Merchants Ass'n* is the doctrinal move most worth watching: if adopted, it would hollow out one of the Supreme Court's clearest statements that minors retain First Amendment rights in the digital context.

Amicus: THE INSTITUTE FOR FAMILY STUDIES

Issue: In *Computer & Communications Industry Association v. Ken Paxton*, the Institute for Family Studies argues that Texas S.B. 2420 — which requires parental consent before minors can download apps — is not a First Amendment speech restriction at all, but rather a regulation of contract formation that merely restores parents as the necessary intermediary in a commercial transaction with a minor. The question is whether that recharacterization can insulate the law from both strict scrutiny under the First Amendment and preemption under § 230(e)(3) of the Communications Decency Act, given that the district court struck the law down on constitutional grounds. The answer turns on whether the app-store relationship is more like a bookstore selling speech or a business forming a binding commercial contract with a child.

The Institute for Family Studies, a nonprofit, filed this amicus curiae brief in the Fifth Circuit in support of Defendant-Appellant Ken Paxton, Texas's Attorney General, in consolidated appeals from a district court ruling that preliminarily enjoined S.B. 2420, the App Store Accountability Act. The brief argues that app stores are not analogous to bookstores because app downloads involve data-sharing agreements and terms of service — binding contracts formed with minors without parental knowledge or consent. IFS contends that parental authority is a fundamental constitutional interest rooted in *Ginsberg*, *Pierce*, *Yoder*, and *Bellotti*, and that the First Amendment was never understood to protect speech reaching minors over parental objection, citing Justice Thomas's dissent in *Brown v. Entertainment Merchants Association*. The brief further argues that age-verification technology, validated by the Supreme Court's 2025 decision in *Free Speech Coalition v. Paxton*, imposes only a modest compliance burden, pointing to zero-knowledge proof systems and Apple's existing Declared Age Range API as available and proportionate tools. IFS asks the Fifth Circuit to reverse the district court and uphold S.B. 2420 as constitutional.

The brief's most consequential move is its attempt to reframe S.B. 2420 as a contract-formation regulation rather than a content restriction — a framing that, if accepted, could simultaneously sidestep § 230(e)(3) preemption and avoid the demanding standard of strict First Amendment scrutiny, opening a significant new lane for state minor-protection statutes. IFS also reads *Free Speech Coalition v. Paxton* as broadly validating age-verification mechanisms across digital platforms, a reading that substantially outpaces the holding but that, if adopted by the Fifth Circuit, would lower the constitutional bar for such laws well beyond the adult-content context in which the Supreme Court approved them. The central doctrinal obstacle the brief leaves unaddressed is the *Brown v. Entertainment Merchants Association* majority, which explicitly rejected parental-authority rationales as a basis for restricting minors' access to speech and which IFS's historical argument depends on circumventing through non-precedential dissents. How the Fifth Circuit engages — or declines to engage — that tension will signal how much doctrinal room remains for state legislatures seeking to regulate minors' access to digital platforms without running into the First Amendment's settled floor.