Fifth Circuit to Rehear if Section 230 Blocks Texas Social Media Rules
Fifth Circuit grants en banc rehearing on Section 230 preemption of Texas social media law.
Why it matters: Legal and tech professionals must monitor this case as it may redefine the limits of Section 230 immunity and state regulation of online platforms.
- October 28, 2026: Fifth Circuit granted en banc rehearing in Texas SCOPE Act litigation.
- July 24, 2026: Previous panel ruling that Section 230 preempted Texas law was vacated.
- Texas SCOPE Act (HB 18), effective September 1, 2024, mandates content monitoring, advertising limits, and age verification for minors.
- Cases consolidated: Computer & Communications Industry Assn. v. Paxton and Students Engaged in Advancing Texas v. Paxton.
On October 28, 2026, the U.S. Court of Appeals for the Fifth Circuit granted an en banc rehearing to reconsider whether Section 230 of the Communications Decency Act preempts key provisions of the Texas Social Media Platform Consumer Protection Act (SCOPE Act), codified as House Bill 18 (HB 18). This action vacated the panel ruling from July 24, 2026, which had broadly ruled Section 230 shields online platforms from state social media requirements. Fifth Circuit July opinion
The Texas law, effective September 1, 2024, requires platforms to monitor user-posted content from minors, restrict targeted ads to users under 18, and implement age verification for account holders. It aims to protect minors online but imposes obligations that may conflict with Section 230's federal immunity, which generally shields platforms from liability for third-party content.
The rehearing will address two consolidated lawsuits: Computer & Communications Industry Association v. Paxton and Students Engaged in Advancing Texas v. Paxton. Both challenge the SCOPE Act as preempted by Section 230 and violating the First Amendment.
During oral arguments, Fifth Circuit Judge Andy Oldham expressed skepticism toward absolute platform discretion over content moderation, stating, “Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say.” This reflects ongoing judicial debate over platform rights and responsibilities. Fifth Circuit oral arguments audio
This en banc rehearing underscores the legal tension between state efforts to protect minors online and federal laws granting platforms broad immunity. The decision could reshape how platforms manage content and age verification, influencing regulatory approaches nationwide. Legal and tech professionals should track this case as it may recalibrate the balance of federal-state power over social media regulation.
Independent coverage by Law360 and the CNET report confirm the significance of the rehearing in the evolving Section 230 landscape.
By the numbers:
- October 28, 2026 — Date en banc rehearing was granted by the Fifth Circuit
- September 1, 2024 — Effective date of Texas SCOPE Act imposing social media obligations
- July 24, 2026 — Date previous panel decision vacated ruling on Section 230 preemption
Yes, but: While the court debates preemption, platforms still operate under Section 230’s broad immunity, preserving significant protections during litigation.
What's next: The Fifth Circuit’s en banc rehearing oral arguments and final ruling are expected in early 2027.