US section 230

The Fifth Circuit's En Banc Rehearing Puts Section 230's Reach Over State Platform Mandates Back in Play

By vacating a panel ruling that Section 230 likely preempts Texas's SCOPE Act filtering mandate, the Fifth Circuit reopens a question with national stakes.

CCIA v. Paxton at a glance People of Internet Research · US 2–1 Panel vote on preemption Douglas and Higginbotham in the ma… 17 Judges on en banc caption Chief Judge Elrod plus sixteen cir… Oct 28 Panel opinion vacated Rehearing en banc vacates the July… peopleofinternet.com
CCIA v. Paxton at a glance People of Internet Research · US 2–1 Panel vote on preemption 17 Judges on en banc caption Oct 28 Panel opinion vacated peopleofinternet.com

Key Takeaways

On October 28, 2026, the Fifth Circuit granted rehearing en banc in Computer & Communications Industry Association v. Paxton. That order vacated a July 24, 2026 panel opinion, which had held that Section 230(c)(1) likely preempts the monitoring-and-filtering mandate in Texas's SCOPE Act (H.B. 18). The en banc court has not ruled on the merits, and no argument date has been set. The October 28 date comes from the court's order as reported by Recording Law. We could not read the order PDF's text directly, but the Fifth Circuit's posted order resolves, and its file metadata shows an October 28 creation date.

What the panel decided, and what is now vacated

The panel split 2–1. Judge Douglas wrote the majority, joined by Judge Higginbotham, and Judge Ho concurred in part and dissented in part. As excerpted by Eugene Volokh at Reason, the majority reasoned that enforcement of the monitoring-and-filtering requirement involves "claims stemming from DSPs' actions as publishers" and is therefore "squarely preempted by Section 230." It put the point this way: "publishers do not filter audiences; they filter content." The majority did not reach the First Amendment questions.

Judge Ho's dissent took the opposite view of what the statute regulates. In his words, the Act "simply imposes a duty on social media companies to meet certain standards for curation." On that view, curation is the platform's own speech, so Section 230's protection for third-party content does not apply.

The panel's opinion also dealt with other plaintiffs and provisions. According to Recording Law's summary, one group of plaintiffs lacked standing on several provisions, and an age-verification challenge was held foreclosed by the Supreme Court's 2025 decision in Free Speech Coalition v. Paxton. Under Fifth Circuit Rule 41.3, granting rehearing en banc vacates the panel opinion and stays the mandate. None of those holdings binds anyone now.

The strongest case for Texas

Texas's position deserves a fair statement. Children's exposure to self-harm content, predatory contact, and engagement-optimised feeds is a documented concern, and legislators are entitled to act on it. Section 230 was enacted in 1996, before algorithmic feeds existed. Judge Ho's argument is not frivolous: if a platform's ranking and recommendation choices are its own expressive conduct, a state may arguably regulate how it curates without treating it as the publisher of anyone else's post. A statute that targets design duties rather than particular pieces of content could, on that account, sit outside Section 230.

Why the panel's reading was the better one

Section 230(c)(1) says 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." The statute's text is the starting point, and a mandate to monitor and filter categories of third-party content is hard to describe as anything other than a rule about publisher decisions. The panel majority's formulation is persuasive on this point. Deciding what to carry, block, or demote is what publishers do, and a state duty to do more of it is a duty about publication.

The curation framing proves too much. Nearly every content-moderation decision can be recast as "curation," so a rule that exempts curation from Section 230 would let states reach almost all of the editorial judgement the statute was written to protect. That would invite a patchwork of state mandates, each defining harmful content differently. The practical result would be over-removal. Platforms facing liability for failing to filter will filter broadly, and lawful speech by teenagers and adults is what gets caught. Smaller services without large trust-and-safety teams bear the heaviest burden, which entrenches the incumbents these laws are often meant to discipline.

What to watch in the en banc proceeding

The vacatur does not mean the panel was wrong. En banc grants in this circuit are unusual, and the court has put a seventeen-judge bench on the question. Per Recording Law, the caption lists Chief Judge Elrod and sixteen other circuit judges. Three things matter from here.

A narrower path

Proportionate child-safety policy does not require rewriting platform liability through state law. Transparency duties, parental tools that families choose to use, and enforcement against conduct that is already unlawful target real harms without deputising platforms to filter lawful speech. If Congress wants to revisit Section 230 for a post-algorithm internet, it should do so in one national statute with evidence behind it, not through fifty state experiments. Until the full court speaks, the injunction against the filtering mandate remains in place, but the legal footing under it is now uncertain.

Sources & Citations

  1. Fifth Circuit en banc order (No. 25-50096)
  2. Fifth Circuit opinion file (No. 25-50096)
  3. 47 U.S.C. § 230 (statute text)
  4. Volokh Conspiracy: panel opinion excerpts
  5. Recording Law: en banc rehearing granted
  6. BakerHostetler analysis of panel ruling