NetChoice v. Jay Jones

Amicus Brief

Issue: In *NetChoice v. Jay Jones*, a coalition of eight civil liberties and digital rights organizations argues that Virginia SB 854 — which requires mandatory age verification for all social media users and parental consent for minors under 16 — violates the First Amendment rights of both adults and minors by restricting fully protected speech. The central question is whether strict scrutiny governs SB 854's sweeping verification and consent requirements, or whether the Supreme Court's 2025 decision in *Free Speech Coalition v. Paxton*, which upheld age verification for material obscene as to minors, provides a framework that permits broader child-protective access restrictions. The case also raises whether the chilling effects of mandatory identity disclosure and data-breach exposure constitute cognizable First Amendment injuries sufficient to sustain a permanent injunction.

At the Fourth Circuit appellate stage (No. 26-1252), on appeal from a permanent injunction entered by Judge Patricia Tolliver Giles in the Eastern District of Virginia, the ACLU, ACLU of Virginia, Center for Democracy & Technology, Electronic Frontier Foundation, Freedom to Read Foundation, FIRE, LGBT Tech, and Woodhull Freedom Foundation filed this amicus curiae brief in support of Plaintiff-Appellee NetChoice, urging affirmance. The brief argues that *Paxton* is confined to the obscenity-as-to-minors category and cannot be extended to authorize verification burdens on constitutionally protected political, religious, and artistic speech. Amici contend that SB 854 independently chills protected expression in three distinct ways: it excludes the approximately 2.6 million adults lacking qualifying ID, it destroys online anonymity that the First Amendment separately protects under *McIntyre v. Ohio Elections Commission*, and it creates breach-vulnerable identity data repositories whose very existence deters lawful speech. The brief also argues that the district court correctly invalidated SB 854 on its face without exhaustive overbreadth cataloguing, characterizing substantial overbreadth under *Moody v. NetChoice* (2024) as an alternative, lower path to facial relief rather than a mandatory prerequisite.

Eight major civil liberties organizations are pressing the Fourth Circuit to treat Virginia's social media age-verification law as a threat to a fundamental infrastructure of modern free expression — not merely a technical regulatory overreach — with implications for adults, LGBTQ+ youth, political activists, and anyone who relies on online anonymity. The court's resolution of how far *Paxton* travels outside the obscenity-as-to-minors category is a genuinely open question with significant circuit-split potential, as *Paxton*'s language on incidental verification burdens was not cleanly limited to that context. The Fourth Circuit's methodological choice on facial invalidation under *Moody* will also carry downstream significance beyond this case, signaling how readily challengers can facially invalidate other platform-regulation statutes — including algorithmic transparency mandates and content-restriction laws modeled on Texas HB 20 — without conducting a comprehensive application-by-application overbreadth analysis.

Issue: Whether Virginia's SB 854 — which mandates a one-hour daily default limit on minor social media use with parental override capability — is a content-neutral regulation subject to intermediate scrutiny under the First Amendment, or a content-based restriction subject to strict scrutiny, and whether the district court's preliminary injunction enjoining its enforcement should be stayed pending appeal.

Virginia's Attorney General moved the Fourth Circuit to stay a February 27, 2026 preliminary injunction issued by the Eastern District of Virginia, which had enjoined enforcement of SB 854 on the ground that the statute was likely content-based because its definition of "social media platform" referenced examples of excluded content (news, sports, entertainment, ecommerce, and interactive gaming) and distinguished user-generated from provider-selected speech. The district court found the statute failed both strict and intermediate scrutiny — despite crediting Virginia's evidence of a compelling interest in protecting children — because it was not narrowly tailored and Virginia had not exhausted less restrictive alternatives such as parental-awareness advertising campaigns. Virginia argues the district court made three reversible errors: it failed to conduct the comprehensive full-scope review required for facial challenges under *Moody v. NetChoice*, 603 U.S. 707 (2024); it mischaracterized the statute as content-based when the one-hour default applies uniformly across all social media platforms regardless of content; and it misapplied intermediate scrutiny by demanding exact fit rather than the more permissive standard the Virginia AG argues *Free Speech Coalition v. Paxton*, 606 U.S. 461 (2025), requires.

This motion advances a circuit split in formation over the constitutionality of state statutes limiting minors' social media access, with the Fifth and Eleventh Circuits having already stayed comparable injunctions against Mississippi and Florida laws; a Fourth Circuit stay or merits ruling could deepen or resolve that split and refine the post-*Moody* framework for facial First Amendment challenges to platform-regulating legislation.