A three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit held that NetChoice failed to carry its burden in a facial First Amendment challenge to Georgia SB 351, the state law that tightens how social-media platforms handle users under 16.
Judge Kevin Newsom wrote the opinion, joined by Judges Robert Luck and Gerald Bard Tjoflat. The court also rejected a vagueness theory the district court had raised on its own and turned aside a 47 U.S.C. § 230 objection to the statute’s advertising limits.
The stakes are straightforward. Georgia recently moved to put age checks, parental consent, and ad-data limits between platforms and younger teens. NetChoice sought to stop the law across the board. The Eleventh Circuit said the trade group never supplied the record needed to wipe the statute out on its face.
The opinion describes the core of the Georgia measure in plain terms. Platforms covered by the law must verify the ages of all users. They must bar minors under 16 from creating accounts without parental consent. They must also limit the personal data used to display ads to users under 16.
"The State of Georgia recently enacted SB 351 to restrict minors' ability to create accounts on social-media platforms. The law requires platforms within its ambit to verify the ages of all their users, to prohibit minors under the age of 16 from creating accounts without their parents' consent, and to limit the personal data they use to display ads to users under 16."
That framework sits at the center of the dispute. NetChoice attacked the law as facially unconstitutional. The panel measured that attack against the Supreme Court’s instructions in the earlier NetChoice v. Moody litigation.
Even in First Amendment cases, a facial challenge still demands more than a narrow fight over preferred examples. The plaintiff must show that a substantial number of the law’s applications are unconstitutional when judged against the statute’s plainly legitimate sweep.
The Eleventh Circuit said NetChoice had to give the court the data for that comparison, through hard facts or at least sufficient briefing. The panel found that showing missing.
"To discharge its facial-challenge burden, NetChoice must provide the reviewing court with the data, either hard facts or, at the very least, sufficient briefing, necessary to conduct the Moody-required comparative analysis. It hasn't done so here."
NetChoice did not supply a full list of its own members to which SB 351 applies. It offered only an exemplary few. The group said the law regulates some member websites, including Dreamwidth, Meta’s Facebook and Instagram, Nextdoor, Pinterest, Reddit, Snap Inc.’s Snapchat, X, and YouTube, plus newer members such as Tumblr.
NetChoice also argued that SB 351 reaches other covered social-media websites. It did not name sites that, in whole or in part, host unprotected speech. The court treated that gap as decisive for the facial analysis.
The panel tied the failure directly to Moody. In that case, the Supreme Court largely agreed with the Eleventh Circuit’s merits discussion yet faulted the court for confining analysis to certain heartland applications instead of addressing the full range of activities the laws covered.
The Supreme Court observed that it could not complete the facial inquiries itself because the parties had not briefed the critical issues and the record was underdeveloped. It vacated and remanded so the scope of applications could be considered and unconstitutional uses weighed against constitutional ones. The Eleventh Circuit then sent the matter back to the district court for further development.
Newsom’s panel said the same obstacle blocked progress here. NetChoice, in the court’s view, again treated the law as if the fight belonged mainly on familiar terrain rather than across the statute’s full reach.
"We are similarly stymied here. For the foregoing reasons, we conclude that NetChoice has failed to satisfy Moody because it hasn't adequately addressed the \"full range\" of SB 351's applications, and the record before us does not permit the weighing Moody requires."
The holding is procedural and evidentiary in character. On this record, NetChoice did not unlock the facial invalidation it sought.
A second track concerned age verification. The district court held, and NetChoice argued on appeal, that SB 351’s call for “commercially reasonable” age-verification mechanisms made the statute unconstitutionally vague.
NetChoice candidly acknowledged the problem with that path. The district court raised the issue sua sponte. NetChoice had not pleaded it.
The Eleventh Circuit treated that sequence as a basic error. Courts may not grant injunctive relief on a theory the plaintiff never asserted and the defendant never had a chance to address. The panel pointed to Clark v. Sweeney (2025) on the party-presentation principle.
"In granting injunctive relief on a theory that NetChoice never pleaded, the district court erred."
That disposition keeps the vagueness theory from carrying the injunction on the posture presented. The panel enforced the ordinary rule that parties frame the claims and courts decide those claims.
NetChoice also objected to SB 351’s advertising provision under 47 U.S.C. § 230. Section 230 bars treating a social-media platform as the publisher or speaker of information provided by another information content provider.
The Eleventh Circuit held that the Georgia advertising rule does not do that. It regulates how platforms themselves act. It forbids them from targeting minors with ads based on personal information.
"SB 351's advertising provision doesn't treat social-media platforms as publishers or speakers of information provided by others. Rather, it regulates how social-media platforms themselves act by forbidding them from targeting minors with ads based on personal information."
In the court’s account, that kind of regulation sits outside § 230’s preemptive core, which reaches laws that seek to hold platforms liable for information originating with a third-party user. The panel rejected the § 230 objection on that ground.
NetChoice brought the challenge. The State of Georgia defended SB 351 through the attorney general’s office. Counsel listed for the state included John Henry Thompson, Christopher Michael Carr, Riley B. Liu, Elijah J. O’Kelley, and Logan B. Winkles.
The opinion under review is the Eleventh Circuit’s decision in NetChoice v. Attorney General. Absolute calendar dates for the enactment and for the release of the opinion are not set out in the materials beyond relative references to a recent Georgia enactment and the panel’s opinion. Case docket numbers and the full formal caption details likewise are not provided in the package.
Coverage of the Eleventh Circuit opinion rejecting NetChoice’s challenge tracks the same holdings on the facial burden, the sua sponte vagueness theory, and the § 230 advertising question.
The panel concluded NetChoice failed the Moody facial-challenge showing on the record before it. It held the district court erred by granting injunctive relief on an unpleaded vagueness theory. It rejected the § 230 attack on the ad-targeting limits.
Investigators of the next procedural chapter will need to determine how any further development, if pursued, fills the application-by-application record the Supreme Court demanded in Moody and that this panel again found lacking. Authorities have not, in these materials, released a full public inventory of every platform application the state claims the statute reaches beyond the examples NetChoice listed.
The opinion does not convert NetChoice’s exemplary member list into a complete map of SB 351’s sweep. It does not supply unprotected-speech examples that NetChoice failed to name. It does not announce injuries, damages, or arrests. The consequence on this appeal is legal: the facial challenge failed for want of the comparative showing Moody requires.
The only concrete platform roster in the opinion comes from NetChoice’s own exemplary list. Dreamwidth, Meta’s Facebook and Instagram, Nextdoor, Pinterest, Reddit, Snapchat, X, YouTube, and Tumblr appear as illustrations of member sites NetChoice says the law regulates. The court treated that partial roster as part of the problem, not the solution, for a facial attack.
Facial invalidation is a broad remedy. It asks a court to condemn a statute across a wide field of uses. When the challenger withholds the full field, the weighing Moody describes cannot proceed. That is the through-line of Newsom’s opinion.
SB 351’s three described duties remain the operative public requirements on the face of the opinion. Age verification for all users. Parental consent before under-16 account creation. Limits on personal data used to aim ads at users under 16.
NetChoice tried to stop that structure with a facial First Amendment theory, a vagueness theory tied to “commercially reasonable” verification, and a § 230 theory aimed at the ad rule. The Eleventh Circuit found the facial theory unsupported by the needed record, the vagueness injunction improper under party presentation, and the § 230 theory a mismatch for a rule aimed at the platforms’ own targeting conduct.
Georgia’s counsel defended the statute against that package of claims. The panel’s reasoning tracks burden, pleading rules, and the statutory scope of § 230 rather than a free-ranging policy essay.
The court said it had learned the facial-challenge lesson the hard way in Moody. Supreme Court review exposed the cost of deciding big platform statutes on a narrowed slice of applications while the rest of the statute’s reach stayed underdeveloped.
That history shaped the SB 351 appeal. The panel refused to repeat the confined analysis the Supreme Court had criticized. It required NetChoice to brief and support the full-range comparison. When the group did not, the facial claim failed.
The same discipline appears in the vagueness discussion. Relief follows claims the parties actually present. A district court that invents the theory and then enjoins on it crosses the line the Eleventh Circuit enforced by citing Clark v. Sweeney.
On advertising, the court drew a clean line between publisher liability for third-party content and direct regulation of a platform’s own use of personal data to target minors. Section 230, as applied here, did not swallow the state’s ad rule.
Taken together, the opinion keeps SB 351 standing against this facial assault on the present record, voids the unpleaded vagueness basis for injunction, and leaves the advertising limit outside § 230 preemption as framed by the panel.
When platforms seek to erase a state parental-consent and age-gate law for teens, they still have to prove the wide constitutional mismatch the Supreme Court demands. Courts that insist on that proof, and on claims actually pleaded, keep the rule of law bigger than any single company’s preferred battlefield.
