On October 28, 2026, the Fifth Circuit granted rehearing en banc in the challenge to Texas H.B. 18, the SCOPE Act. The order covers Computer & Communications Industry Association v. Paxton, No. 24-50721, consolidated with Students Engaged in Advancing Texas v. Paxton, No. 25-50096. It also vacated the panel opinion of July 24, 2026, under Fifth Circuit Rule 41.3, according to the order as quoted by Recording Law. The panel decision is no longer precedent. The full court will now decide whether a federal statute from 1996 limits a state's power to regulate what minors see online.
What the vacated panel held
According to Recording Law's account, Judge Douglas wrote the panel opinion, joined by Judges Higginbotham and Ho. It held that the monitoring-and-filtering requirement in Texas Business & Commerce Code section 509.053 is preempted by 47 U.S.C. § 230(c)(1). It declined to reach the First Amendment and vagueness questions. On age verification, the panel treated the challenge as foreclosed by the Supreme Court's 2025 decision in Free Speech Coalition v. Paxton, so that requirement was not preempted. Judge Ho concurred in part and dissented in part. As Recording Law describes his position, he would have vacated the injunction entirely, arguing that § 230 does not reach a platform's own curation choices. You can read the panel opinion on the court's site.
The en banc order does not say how the court will rule. It sets oral argument for a date to be fixed and calls for supplemental briefs.
The strongest case for Texas
Texas has a serious argument. Children's online harms are real, and the Supreme Court's Free Speech Coalition ruling shows that states keep meaningful room to protect minors. Legislators can reasonably say that a platform which algorithmically promotes self-harm or sexual content to a 14-year-old is making its own product decision, not just hosting someone else's speech. Judge Ho's view fits that argument. If § 230 shields a platform's design and curation choices, it would immunize conduct the statute's authors never meant to protect. A narrow reading of § 230 would leave states free to experiment.
Why the statutory text favors the panel
The text of § 230 cuts the other way. Section 230(c)(1) provides that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." Section 230(e)(3) adds that "No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section." Both quotations come from the official U.S. Code.
A mandate to monitor and filter content is a duty to decide which third-party speech to screen out. The duty is enforced through state liability for getting those decisions wrong. A platform that must filter "harmful" material for minors has to review user posts as a publisher would, and it faces penalties if it misjudges. That is the treatment § 230(c)(1) forbids. Calling the duty a "design" or "safety" requirement does not change what the platform must do, which is evaluate other people's speech.
The practical result matters as much as the doctrine. Faced with liability for missing anything in a vague category, platforms over-remove. Lawful speech about health, sexuality, identity or politics disappears for everyone the platform cannot confidently identify as an adult. Teenagers lose access to information, and no evidence in this record shows they are safer for it.
What the panel got right by narrowing
The panel did not hold that states are powerless. By leaving age verification in place, it kept a path open for targeted, lower-cost rules that do not require judging individual posts. That distinction is the right one for pro-innovation policy. A rule that gates access by age regulates the platform's relationship with a user. A rule that requires filtering regulates the platform's relationship with other users' speech. Section 230 draws its line at the second.
The panel also avoided the First Amendment questions. That restraint is a reason to be cautious about reading too much into any outcome. If the en banc court holds that § 230 does not preempt the filtering mandate, the case does not end there. The constitutional challenge would remain, and the court would still have to confront whether a filtering requirement for broadly defined harmful content survives scrutiny.
What the en banc court should weigh
Three points deserve attention.
- Ordinary preemption analysis applies. Section 230(e)(3) is an express preemption clause, so the question is whether Texas's mandate imposes liability that treats platforms as publishers of user content. Policy sympathy for child safety is not part of that test.
- Judge Ho's curation argument is limited. A platform's own conduct, such as deceptive design or its own speech, can fall outside § 230. A duty to filter third-party posts is different. It targets the publishing function itself.
- A split would invite fragmentation. If a single circuit reads § 230 narrowly, platforms serving national audiences would face a patchwork of state filtering regimes, each with its own definition of harmful content. Large incumbents can build compliance systems. Smaller services and new entrants cannot.
CCIA, one of the plaintiffs, welcomed the earlier panel result. Its statement characterized the ruling as keeping the law blocked. That statement is an advocacy source, and the panel opinion should be read directly for what it held.
Bottom line
Legislators who want safer online spaces for minors have tools that fit within § 230: age assurance, parental controls, enforcement against platforms' own deceptive practices, and funding for digital literacy. What they cannot do under the current statute is require platforms to police user speech and then punish them for the judgment calls. If Texas wants that power, the proper venue is Congress, which can amend § 230 openly and answer for the consequences. The en banc court should not create that exception by reading the statute narrowly.