Facial Challenges to Social-Media Age Restrictions Require Full-Scope Analysis Under Moody

Case: NetChoice v. Attorney General, State of Georgia
Court: United States Court of Appeals for the Eleventh Circuit
Date: October 15, 2026
Opinion: Judge Newsom, joined by Judges Luck and Tjoflat

1. Introduction

This decision concerns Georgia’s SB 351, a law regulating age verification, parental consent, and advertising practices on covered social-media platforms. NetChoice, an Internet trade organization, challenged the law on behalf of its members. The Attorney General of Georgia appealed a preliminary injunction preventing enforcement.

The Eleventh Circuit’s central holding concerns the demanding framework for a facial First Amendment challenge. Applying Moody v. NetChoice, LLC, the court held that NetChoice could not obtain statute-wide preliminary relief by concentrating on familiar platforms and assuming that the law overwhelmingly burdens protected speech. It had to sufficiently establish the law’s full regulatory scope and enable a comparison between unconstitutional and constitutional applications.

The court also held that NetChoice had associational standing, rejected the district court’s reliance on an unasserted vagueness theory, and concluded that Section 230 did not preempt the challenged restriction on platforms’ own use of minors’ personal information to target advertising.

The decision did not hold that SB 351 satisfies the First Amendment. Rather, it held that NetChoice had not made the showing necessary to sustain the preliminary injunction on the grounds considered.

2. Statutory Background and Procedural History

SB 351’s principal requirements

The challenged provisions require covered platforms to:

  1. Make “commercially reasonable efforts” to verify account holders’ ages, including those of adults.
  2. Prevent minors under 16 from holding accounts without parental consent.
  3. Refrain from displaying advertisements to account holders under 16 based on personal information other than their ages and locations.

The statute generally defines a social-media platform as an online forum enabling profiles, posts, mutual connections, and public and private interactions. Numerous exceptions exclude services whose predominant or exclusive function falls within specified categories, including email, streaming, provider-selected news or entertainment, e-commerce, gaming, cloud services, educational programs, research, payments, and career development. Another exception covers services that prohibit minors and use commercially reasonable age-assurance mechanisms to deter them from obtaining accounts.

These exceptions mattered in two ways. NetChoice argued that some differentiated among services by expressive content. It also argued that the undefined phrase “predominant or exclusive function” made statutory coverage uncertain.

The district court proceedings

NetChoice sued on May 1, 2025, before SB 351’s scheduled effective date. It asserted facial and as-applied First Amendment claims, a vagueness claim, and a claim that Section 230 of the Communications Decency Act preempted the law.

The district court recognized associational standing and third-party standing to assert users’ rights. It declined to decide the as-applied First Amendment challenge because it considered the factual record insufficient. It nevertheless granted a preliminary injunction, concluding that NetChoice was likely to succeed on its facial First Amendment, vagueness, and preemption claims.

Because the injunction rested on a facial First Amendment determination, the Eleventh Circuit confined its First Amendment review to that challenge. It did not resolve the pending as-applied claim or endorse a categorical rule that pre-enforcement as-applied challenges are unavailable.

3. Summary of the Opinion

Issue Holding
Associational standing NetChoice could sue on behalf of its member platforms. Their individual participation was not necessary for the claims and prospective relief at issue.
Users’ rights The court did not decide whether NetChoice separately had third-party standing to assert its members’ users’ rights.
Facial First Amendment challenge NetChoice failed to supply the scope analysis and comparative showing required by Moody.
Vagueness The district court improperly granted relief on a challenge to “commercially reasonable” that NetChoice had not presented as a vagueness theory.
Section 230 The advertising restriction regulated platforms’ own use of personal information, rather than treating them as publishers or speakers of third-party information.
Disposition The court affirmed the associational-standing determination, vacated the preliminary injunction, and remanded.

Because NetChoice had not established a likelihood of success on the grounds supporting the injunction, the court did not reach the ultimate First Amendment merits or the remaining preliminary-injunction requirements.

4. Analysis

A. Legal Reasoning

1. Standing and entitlement to facial relief are separate questions

Associational standing generally requires that an organization’s members could sue individually, that the interests asserted are germane to the organization’s purpose, and that neither the claim nor the requested relief requires individual members’ participation. Only the third requirement was contested here.

The court emphasized that this individual-participation limitation is prudential rather than constitutionally indispensable. It serves administrative convenience and efficiency. NetChoice’s request for declaratory and injunctive relief did not require individualized damages calculations, and its free-speech challenge could be assessed through generally applicable constitutional inquiries.

Georgia argued that different platforms’ content, size, technological resources, and possible hosting of pornography required individualized litigation. The court disagreed at the standing stage. Covered platforms faced the same statutory requirements, despite differences in their operations. The possible presence of some material unprotected for minors did not prevent NetChoice from representing its members.

The critical distinction is that the court’s threshold assumptions did not carry over to the facial-challenge analysis. For standing, the court could assume success on the asserted legal claim and treat the platforms as predominantly hosting protected expression. For facial relief, NetChoice had to substantiate the range and constitutional significance of the statute’s applications.

2. Moody requires both a scope inquiry and a constitutional comparison

The court identified two steps:

  1. Determine the statute’s scope: identify the actors and activities the law regulates.
  2. Evaluate and compare its applications: determine which applications violate the First Amendment and whether they substantially outweigh the constitutional applications.

A facial First Amendment challenge is therefore not established merely by identifying serious constitutional difficulties affecting prominent platforms. The challenger must account for the statute’s broader operation, including applications beyond its own membership.

NetChoice argued that identifying “social-media platforms” was sufficient because those services disseminate protected expression. The court rejected that categorical approach. A shared statutory label does not establish that every covered service hosts the same kinds of speech or that every application receives the same constitutional treatment.

3. Different categories of speech may produce different constitutional outcomes

The opinion organized potential applications into three conceptual categories:

  • “Conventional” platforms: services hosting fully protected speech.
  • “Hybrid” platforms: services predominantly hosting protected speech but also permitting pornography potentially unprotected for minors.
  • “Rogue” platforms: hypothetical services devoted exclusively to constitutionally unprotected expression, illustrated by “Incitement.com” and “TrueThreats.com.”

The court used these categories to demonstrate why uniform statutory requirements need not produce uniform constitutional analysis. A content-based restriction on children’s access to fully protected expression would trigger strict scrutiny. Age restrictions addressing pornographic material unprotected for minors could implicate intermediate scrutiny. Regulation of genuinely unprotected expression would not trigger First Amendment scrutiny, leaving rational-basis review.

These were analytical possibilities, not final classifications of SB 351’s actual applications. In particular, the court did not hold that the presence of some pornography automatically subjects an entire mixed-content platform to intermediate scrutiny. It said that intermediate scrutiny could, at least in theory, become relevant to such applications.

4. Intuition about the Internet did not satisfy the challenger’s burden

The court acknowledged that SB 351 might overwhelmingly cover platforms overwhelmingly hosting protected speech. If the law’s application to those services were unconstitutional, its invalid applications might substantially outweigh its valid ones.

Nevertheless, the court considered that conclusion insufficiently supported. NetChoice had supplied examples of covered members, including Facebook, Instagram, Reddit, Snapchat, X, YouTube, and others, but not a complete account even of its affected membership. It also referred to additional covered websites without adequately examining their relevant characteristics.

The opinion required “hard facts” or, at minimum, sufficient briefing to permit the necessary comparison. It did not prescribe a numerical formula or explicitly demand an exhaustive census of every website. Its objection was that the record and arguments did not adequately address the law’s full range of applications.

5. The government’s tailoring burden did not displace NetChoice’s facial-challenge burden

NetChoice argued that the government ordinarily must justify restrictions on protected speech. The court accepted the distinction between that merits inquiry and the separate requirements for facial invalidation.

Where heightened scrutiny applies, the government may bear the burden of justifying a particular restriction. But a challenger seeking relief against a law as a whole must still establish the comparative foundation for that broader remedy. A claim may therefore present substantial constitutional concerns in particular applications while failing as a facial challenge.

This explains the court’s refusal to decide whether SB 351 was content based, adequately tailored, or otherwise constitutionally permissible. Its holding concerned the deficient showing necessary to support facial relief.

6. The vagueness ruling violated party presentation

NetChoice’s preliminary-injunction motion challenged uncertainty in the definition of covered platforms, particularly the phrase “predominant or exclusive function.” The district court instead relied on the alleged vagueness of “commercially reasonable” age verification.

The appellate court held that granting relief on this unasserted theory deprived Georgia of an appropriate opportunity to respond. NetChoice’s separate argument that even commercially reasonable verification burdens speech did not preserve a vagueness challenge to that terminology.

The ruling was procedural. It did not establish that “commercially reasonable” is constitutionally definite, nor did it resolve the merits of NetChoice’s originally advanced challenge to the coverage definition.

7. Section 230 distinguishes third-party publication from platforms’ own conduct

Section 230(c)(1) prohibits treating a qualifying service as the publisher or speaker of information supplied by another information content provider. The district court viewed SB 351’s advertising restriction as interfering with protected publishing decisions.

The Eleventh Circuit instead focused on the basis of liability. The challenged provision did not impose liability because an advertiser’s message was unlawful or harmful. It restricted the platform’s own use of a minor’s personal information to select advertisements.

A platform could comply by changing its targeting practices without withdrawing, postponing, or altering the underlying advertising content. On that reasoning, the restriction fell outside the asserted Section 230 protection.

The holding does not eliminate Section 230 protection for all advertising-related decisions. Its focus is the particular duty imposed here: limiting a platform’s own data-driven targeting of minors.

B. Precedents Cited and Their Influence

1. The controlling facial-challenge framework

Moody v. NetChoice, LLC, 603 U.S. 707 (2024), supplied the governing rule. It required courts to examine a law’s full coverage rather than concentrating on “heartland applications,” and then weigh unconstitutional applications against constitutional ones. The Eleventh Circuit treated this requirement as controlling even where familiar applications appeared constitutionally problematic.

The opinion also cited separate opinions in Moody v. NetChoice, LLC by Justices Barrett, Jackson, and Alito to underscore the difficulty of facial challenges involving varied platforms and functions. Those separate writings reinforced the majority’s demanding framework; they did not supply an independent holding.

Ams. for Prosperity Found. v. Bonta, 594 U.S. 595 (2021), supplied the First Amendment overbreadth formulation quoted through Moody: unconstitutional applications must be substantial when judged against the statute’s plainly legitimate sweep. This standard explains why evidence of some invalid applications is insufficient.

2. Why Packingham did not resolve the facial inquiry

Packingham v. North Carolina, 582 U.S. 98 (2017), was NetChoice’s principal response to the demand for a broader scope analysis. NetChoice read it as establishing that restrictions on access to social-networking sites necessarily burden fully protected activity.

The Eleventh Circuit distinguished the case’s role. Packingham v. North Carolina addressed the constitutional merits and narrow tailoring of the restriction before it, assuming its application to social-networking sites. It did not establish that identifying a regulated category as “social media” satisfies the separate burden for facial invalidation.

3. Prior social-media litigation demonstrated the need for a developed record

NetChoice, LLC v. Att'y Gen., Fla., 34 F.4th 1196 (11th Cir. 2022), was the Eleventh Circuit decision vacated and remanded in Moody. The present panel emphasized that the Supreme Court had found its earlier analysis insufficiently comprehensive despite substantial agreement with its merits reasoning. That procedural history was a direct warning against repeating a platform-specific approach in facial litigation.

The companion case, NetChoice, L.L.C. v. Paxton, 49 F.4th 439 (5th Cir. 2022), was likewise vacated and remanded. The later decision under that same title, 121 F.4th 494 (5th Cir. 2024), remanded for factual development in response to Moody. The Eleventh Circuit’s corresponding remand order in NetChoice, LLC v. Att'y Gen., State of Fla. served the same purpose.

NetChoice, LLC v. Bonta, 152 F.4th 1002 (9th Cir. 2025), supported the proposition that facial challengers cannot limit their analysis to their own platforms or major technology companies. The cited concurrence in NetChoice, LLC v. Yost, 180 F.4th 268 (6th Cir. 2026), similarly emphasized the need for a developed record. The opinion appropriately relied on the latter as a concurring observation rather than a majority holding.

4. Standing’s constitutional foundation and associational requirements

Food & Drug Admin. v. All. for Hippocratic Med., 602 U.S. 367 (2024), supplied the familiar requirements of injury, causation, and redressability. Its quotation of United States v. Texas, 599 U.S. 670 (2023), emphasized standing’s constitutional importance. Justice Thomas’s concurrence in the former also supplied background discussion of associational standing as a form of third-party representation.

United Food & Com. Workers Union Loc. 751 v. Brown Grp., 517 U.S. 544 (1996), was central to the distinction between constitutionally required standing elements and the prudential individual-participation limitation. It also supported the conclusion that prospective relief ordinarily can benefit injured members without their individual participation.

Hunt v. Wash. State Apple Advert. Comm'n, 432 U.S. 333 (1977), supplied the three-part associational-standing test quoted through United Food & Com. Workers Union Loc. 751 v. Brown Grp. Charles H. Wesley Educ. Found. v. Cox, 408 F.3d 1349 (11th Cir. 2005), established de novo review of the legal standing question.

Romano v. John Hancock Life Ins. Co., 120 F.4th 729 (11th Cir. 2024), supported assuming success on the asserted merits when assessing standing. That principle helped explain why potential differences among platforms did not defeat jurisdiction even though those differences later mattered to facial relief.

5. Decisions supporting representative litigation by NetChoice

NetChoice, L.L.C. v. Fitch, 134 F.4th 799 (5th Cir. 2025), supported the proposition that representative evidence from injured members can establish an association’s claims without requiring every affected member to participate. It drew that principle from Ass'n of Am. Physicians & Surgeons, Inc. v. Tex. Med. Bd., 627 F.3d 547 (5th Cir. 2010).

The court also aligned itself with the standing conclusions in CCIA v. Paxton, 747 F. Supp. 3d 1011 (W.D. Tex. 2024), affirmed in relevant part in 2026; NetChoice, LLC v. Murrill, 812 F. Supp. 3d 594 (M.D. La. 2025); NetChoice, LLC v. Reyes, 748 F. Supp. 3d 1105 (D. Utah 2024); and NetChoice, LLC v. Griffin, 2023 WL 5660155 (W.D. Ark. Aug. 31, 2023). These authorities provided corroboration from comparable litigation, rather than replacing the Supreme Court’s governing test.

6. Cases requiring individual participation were distinguishable

Harris v. McRae, 448 U.S. 297 (1980), involved a religious organization’s free-exercise challenge to abortion-funding restrictions. Resolving coercion of particular members required individualized inquiry. The court distinguished that inquiry from the generally applicable speech questions presented here.

Georgia Cemetery Ass'n v. Cox, 353 F.3d 1319 (11th Cir. 2003), involved a regulatory-takings challenge whose economic effects varied among cemeteries. Tahoe-Sierra Pres. Council v. Tahoe Reg'l Plan. Agency, 535 U.S. 302 (2002), reinforced the fact-specific nature of regulatory-takings analysis. Neither established that ordinary differences among social-media platforms necessarily require individual participation.

Free Speech Coalition, Inc. v. Attorney General United States, 974 F.3d 408 (3d Cir. 2020), concerned recordkeeping and identification duties affecting a heterogeneous membership, including directors, producers, technicians, sellers, and photographers. Those distinct professional roles produced materially different burdens. By contrast, SB 351 imposed common obligations on covered social-media platforms.

7. Age verification and material unprotected for minors

Free Speech Coal. v. Paxton, 606 U.S. 461 (2025), held that the challenged age-verification law governing pornographic websites received intermediate scrutiny because it addressed material unprotected for minors while incidentally burdening adults.

This authority mattered principally to the facial comparison. It undermined NetChoice’s assumption that every covered application necessarily concerned fully protected speech and the same level of scrutiny. The Eleventh Circuit did not extend it into a definitive ruling that SB 351 receives intermediate scrutiny across mixed-content services.

8. Facial failure does not foreclose narrower constitutional litigation

Gonzales v. Carhart, 550 U.S. 124 (2007), and L.A. Police Dep't v. United Reporting Publ'g Corp., 528 U.S. 32 (1999), illustrated that rejection of a facial challenge can leave an as-applied challenge available. Their significance was remedial and procedural: failure to justify invalidating a law broadly does not resolve every narrower constitutional claim.

CCIA v. Uthmeier provided a close procedural comparison. There, the district court had enjoined Florida’s law both facially and as applied, permitting appellate consideration of both challenges. Here, the district court had not decided the as-applied claim, so the Eleventh Circuit did not reach it.

9. Judicial restraint and party presentation

The concurrence in PDK Lab'ys Inc. v. DEA, 362 F.3d 786 (D.C. Cir. 2004), supplied the principle that courts should not decide unnecessary questions. The panel invoked it when declining to resolve NetChoice’s separate standing to assert users’ rights.

Clark v. Sweeney, 607 U.S. 7 (2025), controlled the vagueness disposition. Its party-presentation principle prohibited granting relief on a claim the plaintiff had not asserted and the defendant had not had an opportunity to address. This was the basis for rejecting the district court’s independently developed “commercially reasonable” theory.

10. Section 230 and independently regulated conduct

A.B. v. Salesforce, Inc., 123 F.4th 788 (5th Cir. 2024), furnished the district court’s discussion of monitoring, screening, and deleting content as publishing functions. The Eleventh Circuit distinguished those activities from the personal-data targeting restricted by SB 351.

Almeida v. Amazon.com, Inc., 456 F.3d 1316 (11th Cir. 2006), supplied the circuit’s explanation of Section 230 protection against liability for information originating with a third-party user. That focus supported asking whether the law targeted third-party information or the platform’s own conduct.

Free Speech Coal., Inc. v. Paxton, 95 F.4th 263 (5th Cir. 2024), rejected Section 230 preemption of an age-verification requirement because liability depended on statutory noncompliance independently of harm caused by hosted speech. Although affirmed on other grounds, its reasoning supplied a persuasive analogy: SB 351 likewise imposed an independent compliance duty rather than liability for another person’s message.

C. Potential Impact

More demanding records for broad preliminary relief

The decision makes facial challenges to broad platform laws more demanding at the preliminary-injunction stage. Challengers should expect to explain statutory coverage beyond prominent members, identify materially different services and functions, and address plausible constitutional applications rather than relying on general descriptions of online expression.

The opinion leaves unresolved the precise methodology for conducting that comparison. It does not specify whether applications should be measured by platforms, functions, users, transactions, or another unit. It nevertheless rejects an unsupported inference from the prevalence of protected speech to facial invalidity.

Greater strategic importance of as-applied claims

A focused as-applied challenge may permit a court to evaluate a concrete service, function, or burden without resolving the constitutional treatment of an entire regulatory field. The decision therefore highlights the importance of developing evidence for narrower claims alongside a facial challenge.

Associational litigation remains available

The standing holding preserves trade associations’ ability to litigate members’ speech interests despite operational differences among platforms. But it does not exempt associations from the evidentiary and analytical demands governing the requested relief.

A defined limit on Section 230 preemption

The advertising analysis may support future distinctions between liability for third-party expression and duties governing a platform’s independent collection or use of data. Its reach remains tied to the duty’s substance: describing publication liability as “conduct regulation” would not itself resolve the Section 230 question.

Careful preservation of constitutional theories

The vagueness ruling warns litigants and courts that related objections are not interchangeable. An argument that age verification burdens speech does not automatically preserve a claim that its governing terminology is unconstitutionally uncertain.

5. Complex Concepts Simplified

Facial challenge
A challenge seeking to prevent a law’s enforcement broadly, rather than only in a particular situation. In this First Amendment setting, the challenger must show sufficiently substantial unconstitutional applications compared with lawful ones.
As-applied challenge
A claim that a law is unconstitutional in its operation against a particular party, activity, or set of circumstances.
Associational standing
An organization’s ability to sue for its members when the members could sue themselves, the issue relates to the organization’s purpose, and individual participation is unnecessary.
Overbreadth and “plainly legitimate sweep”
Overbreadth concerns a law’s excessive reach into protected expression. Its legitimate sweep consists of applications the Constitution permits. Facial review compares the two.
Strict scrutiny, intermediate scrutiny, and rational-basis review
Different levels of judicial examination. Strict scrutiny is the most demanding; intermediate scrutiny requires a substantial governmental justification and appropriate fit; rational-basis review is more deferential. This opinion discussed their possible relevance without deciding SB 351’s ultimate constitutionality.
Void for vagueness
A doctrine addressing whether a law gives adequate notice of what it requires and sufficient guidance against arbitrary enforcement. Here, the appellate ruling concerned an improperly introduced theory, not a definitive assessment of the challenged wording.
Party-presentation principle
The rule that courts ordinarily decide the disputes and theories presented by the parties rather than granting relief on an independently constructed claim.
Section 230 preemption
The displacement of conflicting state rules that impose prohibited publisher-or-speaker liability for third-party information. It does not automatically displace independent duties governing a platform’s own conduct.
Preliminary injunction
A temporary order issued before final judgment. Losing preliminary relief does not necessarily mean losing the underlying lawsuit.

6. Conclusion

The opinion’s principal contribution is a stringent application of Moody: obtaining facial relief requires an adequately supported account of a law’s full operation, not merely persuasive objections to its most familiar applications.

NetChoice retained standing, but its facial showing did not sustain the injunction. The district court also could not rely on an unasserted vagueness theory, and Section 230 did not shield the particular data-targeting conduct regulated here.

The result was vacatur and remand—not a final determination that Georgia’s social-media restrictions comply with the First Amendment.