Kavanaugh calls Supreme Court-backed law in GOP state unconstitutional

The Supreme Court recently allowed Mississippi to temporarily enforce its social media age-verification law, turning down an emergency request from the tech industry group NetChoice to block the measure. While the brief, unsigned order carried no dissents, Knewz.com has learned that Justice Brett Kavanaugh wrote separately that the law is likely unconstitutional under existing precedent.

What Justice Kavanaugh stated

“In short, under this Court’s case law as it currently stands, the Mississippi law is likely unconstitutional,” Kavanaugh stated. “Nonetheless, because NetChoice has not sufficiently demonstrated that the balance of harms and equities favors it at this time, I concur in the Court’s denial of the application for interim relief.” His concurrence suggested that while the Court would not intervene immediately, the underlying First Amendment challenge remains strong. He further stated, “To be clear, NetChoice has, in my view, demonstrated that it is likely to succeed on the merits — namely, that enforcement of the Mississippi law would likely violate its members’ First Amendment rights under this Court’s precedents.”

The law in question

The law, formally called the Walker Montgomery Protecting Children Online Act, requires social media platforms to verify the ages of users before granting access. Mississippi Attorney General Lynn Fitch has defended the measure, arguing it addresses issues such as abuse, trafficking, physical violence, extortion and more, which she said are not protected by the First Amendment. The law had been blocked by U.S. District Judge Sul Ozerden in 2024, but the 5th Circuit Court of Appeals reversed that injunction in July, permitting enforcement while litigation continues. The Supreme Court’s order maintains that status.

Industry reaction to the law

The ruling is a procedural setback for tech companies including Google, Meta and Snap, which are all members of NetChoice. The group has argued that Mississippi’s law imposes unconstitutional restrictions on speech and undermines user privacy. Paul Taske, co-director of the NetChoice Litigation Center, called the decision “an unfortunate procedural delay.” He said, “Although we’re disappointed with the Court’s decision, Justice Kavanaugh’s concurrence makes clear that NetChoice will ultimately succeed in defending the First Amendment — not just in this case but across all NetChoice’s ID-for-Speech lawsuits.”

NetChoice’s argument and Mississippi’s justification

In its emergency application to the Court, NetChoice argued the law would impose undue burdens on users and limit free expression. “This law would stifle the internet’s promise of ‘relatively unlimited, low-cost capacity for communication of all kinds,’ by requiring users to jump through substantial barriers to accessing speech that this Court — not to mention numerous courts across the country — have held unconstitutional in a variety of contexts,” the group wrote. However, Mississippi Attorney General Fitch has defended the measure as a necessary safeguard. “The Act requires what any responsible covered platform would already do: make ‘commercially reasonable’ efforts to protect minors — not perfect or cost-prohibitive efforts, but efforts of reasonable care based on a platform’s resources,” Fitch and counsel wrote.

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