Fifth Circuit to Rehear Challenge to Texas Age Verification Law

NEW ORLEANS—The U.S. Fifth Circuit Court of Appeals in New Orleans, Louisiana, has agreed to reconsider its ruling on the Securing Children Online Through Parental Empowerment (SCOPE) Act, a broad Texas age verification law enacted in 2023.

In a court filing last week, Chief Judge Jennifer Walker Elrod granted a petition for the case to be reheard en banc, meaning by the full court. Such proceedings allow all active judges on a circuit court to review a case, rather than leaving the decision to a smaller panel. En banc reviews are relatively rare and typically occur when a case raises significant legal questions or concerns about a previous ruling.

The constitutional challenge to the SCOPE Act consists of two cases: Computer and Communications Industry Association & NetChoice v. Paxton and Students Engaged in Advancing Texas et al. v. Paxton. In both lawsuits, the plaintiffs argue that the law infringes on the rights of adult internet users by regulating how digital platforms interact with minors under the age of 18 in Texas.

The SCOPE Act was enacted and signed into law in 2023, with enforcement beginning on Sept. 1, 2024. It requires digital platforms to verify users’ ages and obtain verifiable parental consent before collecting personal information from minors or allowing them to create accounts.

The law also imposes age verification requirements across a broad range of digital services. According to guidance issued by Texas Attorney General Ken Paxton, a Republican currently running for the U.S. Senate in a competitive election, the law primarily applies to “digital services that provide an online platform for social interaction between users that … allow users to create a public or semi-public profile to use the service, and … allow users to create or post content that can be viewed by other users of the service.” The definition encompasses a wide range of online platforms and builds on existing state legislation, including House Bill 1181 and Senate Bill 2420.

HB 1181 established age verification requirements specifically targeting adult entertainment websites. The legislation prompted the Free Speech Coalition, an adult industry trade association, to file a lawsuit against Paxton and Texas, joined by the parent companies of several major adult websites. The case ultimately reached the U.S. Supreme Court, where the court’s conservative majority upheld the constitutionality of age verification requirements for pornography websites. SB 2420, known as the App Store Accountability Act, also reached the Supreme Court through an emergency application seeking to block its implementation, but the request was denied.

The SCOPE Act, also designated HB 18, extends to services including “digital services such as message boards, chat rooms, video channels, or a main feed that presents users [with] content created and posted by other users,” according to Paxton’s office. In an Oct. 28 ruling, Elrod vacated the court’s earlier decision and ordered that the case “shall be reheard by the court en banc with oral argument on a date hereafter to be fixed.”

The vacated decision was a panel opinion issued on July 24, 2026, which blocked a controversial content filtering provision of the SCOPE Act. The panel had found that the provision conflicted with federal law, specifically Section 230 of the Communications Decency Act of 1996.

Section 230, frequently described as the “First Amendment of the internet,” has played a central role in legal challenges to age verification legislation, including lawsuits involving HB 1181 and SB 2420. Elrod’s latest order, however, vacates the July 24 opinion, leaving the panel’s decision without effect as the full court prepares to reconsider the case.

Corey Silverstein, an attorney representing clients in the adult entertainment industry, said the latest developments warrant close attention from industry members.

“I see a substantial risk that the full Fifth Circuit will reverse or significantly narrow the panel’s Section 230 ruling,” Silverstein told AVN. “Granting rehearing signals that a majority of the active judges want to revisit the decision, although it does not establish how they will ultimately vote.

“For the adult industry, the concern extends beyond this particular Texas law,” he added. “A ruling that narrows Section 230 protection for content moderation could encourage other states to impose their own filtering mandates. I would take the threat of an adverse ruling seriously, while recognizing that Texas still faces meaningful legal obstacles.”