The Texas App Store Accountability Act requires app stores to determine people’s ages with a “commercially reasonable method of verification” and to impose restrictions on people under 18. Apple and Google announced plans to comply with the law last year but warned that it would harm users’ privacy.

Laws regulating speech face different levels of scrutiny depending on their nature. “When the government favors some speakers over others for their content, the law must be subject to strict scrutiny,” Pitman’s decision said.

Pitman decided to apply strict scrutiny because he said the Texas law is content-based. The law excludes certain types of apps operated by nonprofits, government entities, and emergency services, while seeking “to shield minors from certain speech the State deems objectionable or harmful,” the district judge wrote.

The 5th Circuit said Pitman is wrong. “At most, SB2420 regulates speech that ‘proposes a commercial transaction,’ which is subject to intermediate scrutiny,” the 5th Circuit panel said, adding that “app listings propose commercial transactions, regardless of whether any monetary payment is made.”

Paxton says Texas has duty to protect children

The judges’ panel further said the law would likely survive under intermediate scrutiny because it advances important governmental interests unrelated to speech and does not burden substantially more speech than is necessary to achieve those goals.

“Requiring age verification, parental consent, and app-related content ratings likely directly and materially advances Texas’s substantial interest in protecting children’s data, safety, and privacy in a digital world… That some works protected by the First Amendment may be the object of app downloads or in-app purchases does not categorically exempt them from ordinary regulations governing commercial transactions,” the panel said.

The panel also faulted the district court for issuing a “universal” injunction that prevents the law from being enforced against anyone, rather than a more limited injunction preventing enforcement against the plaintiffs and their members.

After winning in the 5th Circuit, Texas Attorney General Ken Paxton said that “Texas has not only the right, but the duty, to protect children from the harms of our modern digital space. Parents deserve to know what their children are downloading and to have the ability to stop them from accessing harmful or inappropriate content.”