On 28 October 2026 the Fifth Circuit ordered that the challenges to Texas's SCOPE Act (HB 18) be reheard by the full court. The order, filed in No. 24-50721 and consolidated No. 25-50096, says a majority of active, non-disqualified judges voted in favor of rehearing. It sets oral argument for a date to be fixed, calls for supplemental briefs, and declares that "the panel opinion in this case dated July 24, 2026, is VACATED" under 5th Circuit Rule 41.3. That is a procedural step, but it removes the most important appellate statement on Section 230 preemption of a state content-filtering mandate that had been in force for three months.
A note on sourcing: the order itself is on the Fifth Circuit's website and we read it. The description of the vacated panel opinion comes from law-firm and trade summaries, because we could not extract the opinion text. We have flagged below where we rely on those summaries.
What the panel held, and what is now unsettled
According to a BakerHostetler analysis, a divided panel held that Section 230 likely preempts the SCOPE Act's Monitoring and Filtering Provision "because it would require DSPs to monitor, alter and/or remove third-party content." Recording Law reports that Judge Douglas wrote the opinion and that the panel declined to reach the First Amendment or vagueness claims. It also reports that the SEAT plaintiffs lacked standing on several provisions. CCIA's press release made the same point: the ruling rested on federal statutory grounds and did not reach the First Amendment.
The panel did not strike down the whole statute. Recording Law reports that the age-verification challenge was treated as foreclosed by the Supreme Court's decision in Free Speech Coalition v. Paxton. So Texas could keep enforcing parts of HB 18 even while the filtering duty stayed blocked. The vacatur formally erases the preemption holding, though the district-court injunctions remain the status quo until the en banc court rules.
The strongest case for Texas
Texas's argument deserves a fair statement. Section 230(c)(1) says that no provider "shall be treated as the publisher or speaker of any information provided by another information content provider." Judge Ho, who according to BakerHostetler concurred in part and dissented in part, reasoned that the algorithms platforms design to curate a feed are the companies' own first-party speech. On that view a law regulating how a platform curates and serves content to minors does not treat it as the publisher of anyone else's words. It regulates the platform's own conduct. Legislators are also entitled to be alarmed about what minors encounter online. HB 18 passed the Texas Senate 31 to 0, per Recording Law, which reflects real bipartisan concern about child safety.
That argument is not frivolous. Courts have long debated where a platform's neutral hosting ends and its own design choices begin, and Section 230(e)(3) preserves state laws only where they are "consistent with this section."
Why the filtering mandate still looks like publisher liability
The difficulty is how the Monitoring and Filtering Provision works in practice. A duty to monitor, and to filter categories of third-party content out of what minors see, can only be performed by deciding which user posts to suppress. The statute's own text bars imposing liability under state law "inconsistent with" Section 230, and a state-imposed obligation to remove or suppress other people's speech is the textbook decision about publication that Congress took out of state hands. Relabeling it as "curation conduct" does not change what the platform must do or what speech disappears.
The practical effects matter for innovation and speech. A monitoring duty enforced by the Attorney General pushes a service toward over-removal, because failing to filter risks enforcement and filtering too much costs nothing legally. Smaller services lack the moderation staff of large platforms, so a broad filtering duty falls hardest on them. Lawful speech about health, sexuality, or politics, including speech that teenagers have a legitimate interest in, is the most likely to be swept up. A proportionate approach to child safety would target specific harms, such as illegal content and deceptive design, through narrower tools. It would not impose a general state-defined filtering standard.
What to watch in the en banc proceedings
Three questions will decide how far the ruling reaches:
- Statutory versus constitutional ground. The panel avoided the First Amendment. The full court might take the statutory route again, rule on the First Amendment, or do both. A First Amendment holding would bind states regardless of how Section 230 is read.
- Where the line between curation and hosting falls. If the full court accepts Judge Ho's framing, other states could write minor-safety laws as regulations of platform design, and Section 230 would protect much less.
- The effect on other states. Texas is one of many states regulating minors' online experience. A Fifth Circuit en banc opinion, which this court's reputation suggests could favor the state, would be cited well beyond Texas.
The vote tally is not in the order, and the en banc court has not yet addressed the merits. Anyone predicting the outcome is guessing. What is certain is that a clear statutory protection for hosting third-party speech, which the panel relied on, is again being tested. Developers and platforms of all sizes should treat the July ruling as no longer binding.
Bottom line
Congress wrote Section 230 so that the legal risk of hosting speech would not fall on intermediaries state by state. If the full Fifth Circuit narrows that protection through a conduct-versus-speech distinction, the reach of a 1996 statute will be decided by one circuit's reading of platform design. A durable answer to protecting children online should come from legislation that is targeted and evidence-based, and that does not ask a platform to decide which lawful speech minors may see.