Irreparable Harm in Pre‑Enforcement Challenges: Unrecoverable Compliance Costs and Credible Enforcement Threats Satisfy the Sixth Circuit Threshold

I. Introduction

In NetChoice, LLC v. Jonathan Thomas Skrmetti (6th Cir. Aug. 28, 2026), NetChoice—a trade association whose members operate major online platforms—sought to enjoin enforcement of Tennessee’s Protecting Children from Social Media Act, Tenn. Code §§ 47-18-5701–5706 (the “Act”). The Act requires covered “social media compan[ies]” to (i) verify the age of a prospective account holder and (ii) if the user is a minor, obtain “express parental consent” before allowing account creation, while also providing parental supervision tools.

The district court denied a preliminary injunction solely on the ground that NetChoice had not shown irreparable harm, finding the alleged First Amendment injuries insufficiently imminent and rejecting compliance costs as irreparable. The Sixth Circuit vacated and remanded, holding that the district court’s irreparable-harm analysis rested on legal errors and an unduly cramped view of imminence in a pre-enforcement, speech-chilling context.

II. Summary of the Opinion

The Sixth Circuit (Batchelder, J., joined by Ritz, J.) held that NetChoice’s asserted harms—unrecoverable statutory-compliance costs and loss/chilling of First Amendment freedoms—are the type that can satisfy the irreparable-harm requirement at the preliminary-injunction stage. The panel emphasized:

  • Under circuit precedent, unrecoverable compliance costs “almost always” qualify as irreparable harm and must “enter the calculus” even if “common and small.”
  • For First Amendment claims, irreparable harm may arise from imminent chilling; it need not await actual enforcement.
  • In assessing imminence/credibility of enforcement, the district court misapplied guidance drawn from the “credible threat of enforcement” framework and undervalued litigation statements indicating noncompliance and unwillingness to stay enforcement.
  • Tennessee’s statutory notice period did not eliminate immediacy; it offered little practical comfort given the potential penalties and the limited constraint the notice process places on the Attorney General.

Because the district court stopped at irreparable harm and did not analyze likelihood of success, equities, or public interest, the Sixth Circuit vacated and remanded for full consideration of the remaining preliminary-injunction factors and for a remedy “tailored” to any proven injuries.

III. Analysis

A. Precedents Cited

1. Unrecoverable compliance costs as irreparable harm

The opinion’s clearest doctrinal correction is its reliance on Commonwealth v. Biden, 57 F.4th 545 (6th Cir. 2023), which held that “complying with a regulation later held invalid almost always produces the irreparable harm of nonrecoverable compliance costs,” and that the “peculiarity and size” of those costs go to weight in balancing—not to whether irreparable harm exists at all.

The Sixth Circuit faulted the district court for reading Commonwealth v. Biden as effectively adopting contrary out-of-circuit approaches—Freedom Holdings, Inc. v. Spitzer, Am. Hosp. Ass'n v. Harris, and A.O. Smith Corp. v. FTC—that treat compliance costs as generally non-irreparable. The panel stressed that Biden explicitly disagreed with that line and required compliance costs to be counted, with their magnitude handled in the equitable balance.

The panel reinforced this circuit rule by citing additional Sixth Circuit applications: Tennessee v. Dep't of Educ., Kentucky v. EPA, and In re MCP No. 185.

2. First Amendment loss and presumptive irreparable injury

The court anchored the speech side of irreparable harm in the Supreme Court’s rule that “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury,” citing Roman Cath. Diocese of Brooklyn v. Cuomo, 592 U.S. 14 (2020) (quoting Elrod v. Burns). But it also emphasized that the alleged loss must still be “certain and immediate,” invoking Sixth Circuit timing/imminence cases like D.T. v. Sumner Cnty. Schs., Defending Educ. v. Olentangy Loc. Sch. Dist. Bd. of Educ., Moms for Liberty - Wilson Cnty., Tennessee v. Wilson Cnty. Bd. of Educ., Hess v. Oakland Cnty., and Fischer v. Thomas ("Fischer II").

3. Credible threat of enforcement (standing guidance used for irreparable harm)

To assess whether NetChoice’s speech harms were imminent in a pre-enforcement posture, the district court looked to the “credible threat of enforcement” framework drawn from standing cases. The Sixth Circuit did not reject using this framework as “guidance,” citing Fischer v. Thomas ("Fischer I") and McKay v. Federspiel, and noting that injury-in-fact principles often set a floor for irreparable injury in First Amendment pre-enforcement disputes.

However, it found the district court misapplied the guidance by treating missing factors (e.g., lack of past enforcement history, no formal warning letters) as overly significant in the context of a novel statute shadowed by litigation, and by giving too little effect to evidence that functioned as warnings and a refusal to disavow.

In particular, the panel relied on Christian Healthcare Ctrs., Inc. v. Nessel for the proposition that the McKay factors are “not exhaustive” and are not a checklist; and on Yoder v. Bowen and Boone Cnty. Republican Party Exec. Comm. v. Wallace to emphasize that courts should not “elevate form over substance” when determining whether communications operate as warnings.

The panel also invoked the Supreme Court’s instruction to draw commonsense inferences in standing-like assessments, citing First Choice Women's Res. Ctrs., Inc. v. Davenport (quoting Diamond Alternative Energy, LLC v. Env't Prot. Agency), and used Universal Life Church Monastery Storehouse v. Nabors as an example where failure to take meaningful steps to forswear enforcement supported a credible threat.

4. Preliminary injunction framework and intra-circuit discipline

The panel reiterated that Sixth Circuit law treats the four preliminary-injunction considerations as factors to be balanced, not strict prerequisites—while recognizing irreparable harm remains “indispensable.” It relied on PCC Airfoils, LLC v. Daugherty, U.S. Sportsmen's All. Found. v. Ctrs. for Disease Control & Prevention, and D.T. v. Sumner Cnty. Schs. for standard-of-review and the balancing structure, and discussed the Supreme Court’s articulation in Winter v. Nat. Res. Def. Council, Inc.

Importantly, the panel corrected the district court’s perceived need to “choose” between approaches in tension with Sixth Circuit precedent, underscoring that lower courts must follow binding circuit law unless and until changed by the Supreme Court or en banc review, citing Ramos v. Louisiana and Wright v. Spaulding.

5. Remedy tailoring

On remedy scope, the panel cited Ohio v. Becerra (quoting Gill v. Whitford) to stress that any injunction must be tailored to the plaintiff’s particular injury—suggesting that compliance-cost evidence from only certain members may justify member-limited relief.

6. Qualified immunity arguments rejected at the irreparable-harm stage

Tennessee argued that compliance costs might be recoverable via § 1983 damages, and that this depended on qualified immunity and the absence of clearly established law (citing Pearson v. Callahan). The panel rejected this as a mismatch of standards and purposes, distinguishing notice-based qualified immunity doctrine (citing Mullenix v. Luna, Malley v. Briggs, and Gragg v. Ky. Cabinet for Workforce Dev.) from the predictive merits inquiry at the preliminary-injunction stage. It also limited the reach of L. W. by & through Williams v. Skrmetti (aff’d sub nom. United States v. Skrmetti) as not controlling the application of existing speech principles to new factual settings.

B. Legal Reasoning

1. Compliance costs: irreparable harm is a threshold concept, not a magnitude test

The Sixth Circuit’s core move was to separate existence of irreparable harm from its weight. The district court effectively treated “ordinary” compliance costs as categorically insufficient; the panel held that Sixth Circuit precedent requires the opposite: unrecoverable costs count as irreparable harm, while their size and peculiarity are addressed when balancing all factors.

The panel also emphasized the practical function of preliminary injunctions: preventing “Pyrrhic victories” where a plaintiff could win later yet still be left uncompensated for compliance expenditures due to sovereign immunity.

2. First Amendment chilling: immediacy may arise from credible threat, not just filed prosecutions

The panel treated “chill” as a present harm when enforcement is plausibly forthcoming, rejecting the idea that NetChoice must wait for the Attorney General to actually initiate proceedings. It read the record as supporting a credible threat based on:

  • Skrmetti’s litigation position that NetChoice’s members were noncompliant;
  • His refusal to agree to stay enforcement pending judicial review;
  • The limited protective value of the statutory notice-and-response period;
  • The commonsense inference that disavowals about “skipping” steps imply an intention to enforce.

The panel’s discussion of Tennessee’s notice regime is notable: it treated the notice period as functionally part of the enforcement process (and therefore part of the chilling mechanism), given that the Attorney General retains broad discretion, the procedures are permissive (“may”), and penalties may still attach even if an entity promises prompt compliance.

Finally, the panel rejected an approach that would allow a regulator to defeat preliminary relief by strategic forbearance while keeping the “sword of Damocles” suspended—quoting First Choice Women's Res. Ctrs.: “The value of a sword of Damocles is that it hangs—not that it drops.”

3. Limited holding and procedural restraint

The court repeatedly emphasized what it was not doing: it expressed no view on the merits of the First Amendment and vagueness claims, and it did not decide the proper placement (if any) of third-party harms (users’ injuries) within the preliminary-injunction framework. It vacated and remanded because the district court’s threshold determination foreclosed consideration of the remaining factors, and because first-pass assessment of a novel statute is ordinarily for the district court, citing Fair Hous. Ctr. of Metro. Detroit v. Singh Senior Living, LLC.

C. Impact

  • Lower bar to establish irreparable harm in regulatory tech cases (within Sixth Circuit): Plaintiffs challenging novel platform regulations can rely on unrecoverable compliance costs as irreparable harm without proving “extraordinary” circumstances; disputes will shift to how heavily those costs weigh and whether relief must be limited to members with proof.
  • Greater evidentiary significance of litigation statements: Regulators’ in-court assertions that targets are not in compliance, coupled with refusals to stay enforcement, may function as “warnings” and “refusals to disavow,” strengthening credible-threat showings even absent formal demand letters.
  • Notice periods may not defeat immediacy: Statutory pre-suit notice-and-response procedures will not automatically make enforcement too remote for preliminary relief, especially where the procedure does not meaningfully constrain prosecutorial discretion and penalties remain possible.
  • Remedy tailoring pressures association plaintiffs: Trade associations should expect scrutiny as to which members have affidavit-supported compliance burdens or speech harms, with potential for narrower injunctions under Ohio v. Becerra and Gill v. Whitford.

IV. Complex Concepts Simplified

  • Preliminary injunction: A temporary court order issued early in a case to prevent harm before final judgment. Courts consider likelihood of success, irreparable harm, equities, and public interest.
  • Irreparable harm: Harm likely to occur before the case ends that cannot be fully fixed later (often because money damages are unavailable). In the Sixth Circuit, unrecoverable compliance costs can qualify; so can loss of First Amendment freedoms when imminent.
  • Chilling effect: When a law (or credible threat of enforcing it) discourages speech even without formal prosecution, because speakers fear penalties.
  • Pre-enforcement challenge: A lawsuit filed before the government brings an enforcement action, commonly used in First Amendment cases to prevent chilling.
  • Sovereign immunity: A doctrine that can bar suits for money damages against the state, making compliance costs “unrecoverable” and thus potentially irreparable.
  • Qualified immunity: Protection for officials from damages unless they violated “clearly established” law. The court explained this is different from (and stricter than) the likelihood-of-success inquiry for an injunction.
  • “Tailored” remedies: Injunctions should address the plaintiff’s own injury, not provide broader relief untethered to proven harm.

V. Conclusion

NetChoice, LLC v. Jonathan Thomas Skrmetti is primarily an irreparable-harm decision with significant practical consequences for pre-enforcement constitutional challenges to platform regulation. The Sixth Circuit reaffirmed that unrecoverable compliance costs must be counted as irreparable harm (with magnitude handled in the balance), and that credible enforcement threats can make First Amendment chilling immediate even without formal warning letters or prior enforcement history—especially where the regulator’s litigation conduct signals intent to enforce. By vacating and remanding, the court positioned the district court to address the merits and to calibrate any injunction to the specific members and harms actually shown.