Students v. Paxton

PUBLISHED COURT ORDER granting Motion for stay pending… — Attachment 91

Issue: Texas SB2420 — the App Store Accountability Act — requires app stores to verify user age, obtain parental consent for minors' downloads and in-app purchases, and publish age-rating and content disclosures. Two federal district courts enjoined the law on First Amendment grounds, but the central legal question is whether app store transactions constitute protected speech at all, or whether they are commercial conduct that the First Amendment does not meaningfully constrain. That distinction determines whether Texas must satisfy strict scrutiny, intermediate scrutiny under *Central Hudson*, or no First Amendment standard at all — a choice that will almost certainly decide the statute's fate on the merits.

Ken Paxton, in his capacity as Texas Attorney General, moved the Fifth Circuit to stay two universal preliminary injunctions that had blocked statewide enforcement of SB2420 while his appeals proceed. The Fifth Circuit, in a published per curiam order by Judges Smith, Haynes, and Oldham — with Judge Haynes concurring only in the grant — applies the four-factor *Nken v. Holder* test and finds every factor favors Texas. The panel identifies five likely errors below: the district courts applied strict scrutiny where intermediate scrutiny or no First Amendment scrutiny was warranted; the statute survives *Central Hudson* even if commercial speech is implicated; the courts misread narrow statutory exceptions as limitations on the Act's entire scope; the vagueness challenges fail given the terms' plain meaning and the Act's severability clause; and the universal statewide injunctions were overbroad under *Trump v. CASA, Inc.* The stay is immediate and lifts both injunctions, meaning SB2420 is now fully enforceable while merits briefing continues in both consolidated appeals.

The panel's most consequential signal is its suggestion that app store download transactions may be commercial conduct with only incidental speech effects — a framing that, if adopted on the merits, would place a wide category of platform activity beyond First Amendment protection and weaken *Section 230*'s preemptive reach against state regulation of platform commercial operations. The order reinforces a broader doctrinal trend, accelerated after *Moody v. NetChoice*, of courts disaggregating "platform as publisher" from "platform as commercial intermediary" and subjecting the latter to substantially reduced federal protection. The panel's reliance on *Trump v. CASA, Inc.* to condemn universal injunctions also signals a structural constraint on how far even successful challengers can push their relief — a shift with major practical consequences for technology-sector litigation, where broad statewide injunctions have historically been the primary tool for neutralizing state internet regulations before they take effect.

Reply Brief — Attachment 82

Issue: In *Students v. Paxton*, Texas Attorney General Ken Paxton argues that two federal preliminary injunctions blocking SB2420 — a state law requiring app stores to obtain parental consent before allowing minors to download apps — should be stayed pending appeal. The core legal question is whether SB2420 regulates a commercial transaction rather than speech itself, which determines whether the law faces the demanding strict-scrutiny standard that has defeated most internet-content regulations or the more permissive intermediate scrutiny applied to commercial speech. The answer is non-obvious because app-store listings involve both expressive content and economic exchange, and no circuit has squarely resolved which framework governs.

This is a reply brief filed by Appellant Ken Paxton in the consolidated Fifth Circuit cases 25-51073 and 26-50001, responding to opposition briefs filed by student and industry plaintiffs who successfully obtained preliminary injunctions in the Western District of Texas blocking enforcement of SB2420. Paxton argues that enjoining a duly enacted state statute constitutes per se irreparable harm to the State and that the balance of equities favors a stay. On the merits, he contends SB2420 is content-neutral because it targets the commercial and contractual nature of app downloads rather than any subject matter or viewpoint, placing the law under *Central Hudson*'s intermediate-scrutiny framework rather than the strict scrutiny applied in *Brown v. Entertainment Merchants Ass'n*. He further argues that any content-based statutory exemptions — such as carve-outs for emergency services and standardized-testing apps — are severable under *Barr v. AAPCI* and do not doom the statute as a whole. Finally, Paxton invokes the Supreme Court's recent decision in *Trump v. CASA* to argue that even if a stay is denied on the merits, the injunctions must be narrowed because district courts lack equitable authority to block enforcement against parties beyond those before the court.

Texas is attempting to require app stores to obtain parental consent before minors can download apps, and this reply represents the State's bid to lift federal court blocks on that law before a full constitutional ruling. The most consequential argument is the commercial-speech reframe: if the Fifth Circuit provisionally accepts that app-store listings universally propose a commercial transaction — removing the case from *Brown*'s protective framework — it would signal that intermediate scrutiny, not strict scrutiny, governs an entire category of app-economy regulation, accelerating similar legislation in other states and potentially producing a circuit split. The *Trump v. CASA* injunction-scope argument is the most immediately actionable piece of the brief, as any Fifth Circuit language limiting the geographic or party reach of district court injunctions in this context will be closely watched across dozens of pending digital-regulation cases.

Amicus: NATIONAL CENTER ON SEXUALEXPLOITATION

Issue: In *Students v. Paxton*, the National Center on Sexual Exploitation argues that Texas's App Store Accountability Act — which requires parental consent before minors can download apps — regulates predatory engineering features like infinite scroll and autoplay rather than expressive content, and should therefore survive constitutional review under intermediate rather than strict scrutiny. The question turns on whether courts can distinguish between how an app is built and what it communicates — a line the Supreme Court explicitly declined to draw in *Moody v. NetChoice* (2024), leaving it unresolved going into this appeal.

The National Center on Sexual Exploitation filed this amicus curiae brief in the Fifth Circuit on May 22, 2026, supporting Defendant-Appellant Ken Paxton and urging reversal of the district court's ruling that struck down the ASAA as unconstitutional. The brief makes four core arguments: that the ASAA targets design mechanisms rather than speech and is therefore content-neutral; that statutory exemptions for nonprofits and emergency apps do not trigger strict scrutiny under *Reed v. Town of Gilbert* because they track design characteristics rather than content; that a minor's act of downloading an app constitutes a commercial transaction governed by intermediate scrutiny under *Central Hudson*; and that parental-consent requirements are unremarkable exercises of state authority over minors, supported by a broad catalog of analogous Texas statutes. NCOSE relies heavily on *Uthmeier v. NetChoice* (11th Cir. 2025), which upheld a materially similar Florida law, and on the Fifth Circuit's own *Free Speech Coalition v. Paxton*, 95 F.4th 263 (2024), for the commercial-transaction framing.

This brief pushes the Fifth Circuit to adopt a doctrinal framework — design regulation as content-neutral conduct — that, if accepted, would significantly expand state power to regulate how platforms engineer their products for minors without triggering the demanding requirements of strict scrutiny. The argument is sharpened by genuine uncertainty: *Moody* left open exactly where algorithmic curation ends and protected expression begins, meaning a receptive panel could use this case to draw that line in ways that would reshape both First Amendment doctrine and the broader landscape of minor-protection legislation. The exemption analysis is the argument's weakest link — if the Fifth Circuit finds that nonprofit-status-based carve-outs are speaker-based rather than design-based, strict scrutiny could apply regardless of the design-neutrality framing. The case is worth watching because it sits at the intersection of child safety, platform design liability, and unsettled post-*Moody* First Amendment doctrine, all in a circuit whose own precedent is already in play.