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Computer & Communications Industry Association v. Attorney General, State of Florida

2026-10-14

Authorities cited

Opinion

majority opinion

USCA11 Case: 25-11881 Document: 94-1 Date Filed: 10/14/2026 Page: 1 of 59

FOR PUBLICATION

In the

United States Court of Appeals

For the Eleventh Circuit

No. 25-11881

COMPUTER & COMMUNICATIONS INDUSTRY

ASSOCIATION,

NETCHOICE,

Plaintiffs-Appellees,

versus

JAMES UTHMEIER,

Defendant,

ATTORNEY GENERAL, STATE OF FLORIDA,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Florida

D.C. Docket No. 4:24-cv-00438-MW-MAF

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2 Opinion of the Court 25-11881

Before NEWSOM, LUCK, and TJOFLAT, Circuit Judges.

NEWSOM, Circuit Judge:

For better or worse, the proliferation of social media has

transformed American life. Unsurprisingly, it has also generated “a

raft of public policy issues.” Moody v. NetChoice, LLC, 603 U.S. 707,

716 (2024). One of the most pressing is how and in what ways social-media use affects minors. According to the State of Florida,

social-media companies seed their platforms with “addictive features”—push notifications, auto-play, infinite scrolling, etc.—in order to make them, well, addictive. These features, the state says,

are “psychological hooks” that “overstimulate the reward center in

the brain” and “foster compulsive overuse.” Br. of Appellant at 4

(citations omitted). Florida insists that children are particularly susceptible to these “addictive features” because their brains are still

developing. In particular, the state contends, the features contribute to “[c]ompulsive or uncontrollable” social-media use among

children and threaten a “youth mental health crisis.” Id. at 1, 5.

Children face “‘sleep problems, attention problems, and feelings of

exclusion,’ all of which put [them] at risk of ‘depression, anxiety,

and neuroticism.’” Id. at 5 (citations omitted).

In an effort to protect children from social-media addiction

and its ensuing effects, Florida passed HB3, which imposes age-restriction requirements on platforms that use “addictive features.”

Fla. Stat. § 501.1736(1)(e). In particular, HB3 requires platforms

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within its ambit to prohibit anyone under the age of 14 from creating an account, and to prohibit anyone else under 16 from doing so

without parental consent. Id. § 501.1736(2)–(3).

The Computer & Communications Industry Association

and NetChoice, both Internet trade organizations—to which, collectively, we will hereinafter refer as “CCIA”—brought facial and

as-applied First Amendment challenges to HB3. The district court

concluded that HB3 was likely unconstitutional and preliminarily

enjoined Florida from enforcing it. We stayed the injunction pending appeal. Before us, Florida contends (1) that CCIA lacks standing to assert the First Amendment rights of minors, (2) that the district court should have abstained from deciding the case under

Younger v. Harris, 401 U.S. 37 (1971), and (3) that HB3 satisfies First

Amendment scrutiny.

Our analysis proceeds in three parts. First, as threshold matters, we hold that CCIA has standing to challenge HB3 and that

Younger abstention doesn’t foreclose its claim. Second, we address

the merits of CCIA’s as-applied challenge, and we hold that HB3

likely passes First Amendment muster because it is a content-neutral speech regulation that satisfies intermediate scrutiny. Finally,

we reject CCIA’s facial challenge to HB3 under the principles articulated in Moody.1

1 CCIA and NetChoice have challenged the constitutionality of similar laws in

other states restricting minors’ use of social-media platforms. See, e.g.,

NetChoice v. Carr, 789 F. Supp. 3d 1200 (N.D. Ga. 2025) (Georgia), appeal docketed, No. 25-12436 (11th Cir. July 16, 2025); NetChoice, LLC v. Skrmetti, No. 25-USCA11 Case: 25-11881 Document: 94-1 Date Filed: 10/14/2026 Page: 4 of 59

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I

A

We begin with a primer on HB3. The law defines a “social

media platform” as “an online forum, website, or application”

(1) that “[a]llows users to upload content or view the content or

activity of other users”; (2) on which at least 10% of daily active

users under 16 years old spend an average of at least two hours per

day; (3) that “[e]mploys algorithms that analyze user data or information on users to select content for” them; and (4) that “[h]as any

of the following addictive features”: “[i]nfinite scrolling,” “[p]ush

notifications,” displays of “personal interactive metrics,” “[a]utoplay,” or “[l]ive-streaming.” Fla. Stat. § 501.1736(1)(e). HB3 defines each “addictive feature” as follows:

• “Infinite scrolling” refers to either (1) the “[c]ontinuous[]

loading” of content without the need to open a separate

page, or (2) the “[s]eamless” loading of content “with no visible or apparent end or page breaks.”

5660, 2026 WL 2546423, at *2 (6th Cir. Aug. 28, 2026) (Tennessee); Comput. &

Commc’ns Indus. Ass’n v. Paxton, 184 F.4th 420, 437 (5th Cir. 2026) (Texas);

NetChoice, LLC v. Yost, 180 F.4th 268 (6th Cir. 2026) (Ohio); NetChoice, LLC v.

Bonta, 152 F.4th 1002 (9th Cir. 2025) (California); NetChoice, L.L.C. v. Fitch, 134

F.4th 799 (5th Cir. 2025) (Mississippi); NetChoice v. Murrill, 812 F. Supp. 3d 594

(M.D. La. 2025) (Louisiana); NetChoice, LLC v. Griffin, No. 5:23-CV-5105, 2025

WL 978607 (W.D. Ark. Mar. 31, 2025) (Arkansas); NetChoice, LLC v. Reyes, 748

F. Supp. 3d 1105 (D. Utah 2024) (Utah).

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• “Push notifications” are “alerts” sent by the platform “to inform a user about specific activities or events related to the

user’s account.”

• “Personal interactive metrics” refer to “[d]isplays . . . indicat[ing] the number of times other users have clicked a

button to indicate their reaction to content or have shared

or reposted the content”—think “likes,” “comments,” “reposts,” “shares,” etc.

• “Auto-play” is a feature that enables a video to “play without

the user first clicking on the video or on a play button for

that video.”

• “Live-streaming” is a “function that allows a user or advertiser to broadcast live video content in real-time.”

Id. § 501.1736(1)(e)(4)(a)–(e). HB3 exempts from its definition of

“social media platform” any “online service, website, or application

where the exclusive function is e-mail or direct messaging consisting of text, photographs, pictures, images, or videos shared only

between the sender and the recipients.” Id.

HB3 requires covered platforms (1) to prohibit minors under

the age of 14 from creating accounts and (2) to prohibit 14- and 15-year-olds from creating accounts without parental consent. Id.

§ 501.1736(2)(a), (3)(a). If an account holder is under 14, or is 14 to

15 but doesn’t have parental consent, the platform must terminate

her account. Id. § 501.1736(2)(b)(1), (3)(b).

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B

On October 28, 2024, shortly before HB3 took effect, CCIA

brought facial and as-applied First Amendment challenges to HB3’s

pertinent provisions. The next day, CCIA moved for a preliminary

injunction to prevent HB3’s enforcement. A flurry of docket activity ensued. (The procedural recitation that follows may seem

pretty tedious, but it’s relevant to the Younger issue before us.)

Lawyers filed notices of appearance and withdrawal, as well as pro

hac vice motions, on which the district court ruled. Florida filed a

motion to dismiss, to which CCIA responded. The state also filed

an opposition to CCIA’s preliminary-injunction motion, and CCIA

filed a reply in support. In addition, Florida deposed four industry

witnesses. See Cleland Dep., Dkt. No. 51-4 (NetChoice’s General

Counsel); Schruers Dep., Dkt. No. 51-5 (CCIA’s President and

CEO); Boyle Dep., Dkt. No. 51-6 (Snap’s Senior Director of Product Management); Veitch Dep., Dkt. No. 51-7 (YouTube’s Director

of Government Affairs and Public Policy across the Americas).

Following a hearing, the district court denied CCIA’s preliminary-injunction motion on associational standing grounds. The

court held that CCIA had failed to show that any of its members’

asserted injuries were “actual or imminent” and “fairly traceable”

to the state because it didn’t allege “that at least one specific member of [CCIA] [was] likely regulated by the law.” Dist. Ct. Order,

Mar. 13, 2025, at 6. The court also granted Florida’s motion to dismiss CCIA’s complaint. CCIA promptly filed an amended complaint that primarily sought to remedy the standing defects that the

district court had identified and renewed its preliminary-injunction

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motion. The court held a scheduling conference and set a briefing

schedule. In the meantime, CCIA deposed three of the state’s expert witnesses. See Twenge Dep. 32–34, 53–57, Dkt. No. 63-1 (opining that using social media causes, or at least correlates with, harmful outcomes for children); Allen Dep. 12–16, 58–139, Dkt. No. 63-2 (explaining how age-verification systems function); Alter Dep.

27–54, Dkt. No. 63-3 (describing a theory of how design features of

social-media platforms trigger behavioral addiction).

On April 21, 2025, before the district court had ruled on

CCIA’s renewed preliminary-injunction motion, Florida filed an

enforcement action in state court against Snap, a social-media company and member of CCIA’s co-plaintiff NetChoice, alleging violations of HB3. Snap removed the enforcement action to federal district court. 2

The district court then granted CCIA’s renewed preliminary-injunction motion. As relevant here, the court determined

(1) that CCIA had standing, (2) that Younger didn’t require dismissal

of CCIA’s suit, and (3) that although HB3 was likely a content-neutral speech regulation, it was likely insufficiently tailored to survive

2 Notice of Removal, Off. of the Att’y Gen., State of Fla., Dep’t of Legal Affs. v. Snap

Inc., No. 3:25-cv-676 (N.D. Fla. May 21, 2025), Dkt. No. 1. On the same day

that we heard oral argument in this case, we heard argument in the appeal

from the district court’s order declining to remand the enforcement action to

state court. See Off. of the Att’y Gen., State of Fla., Dep’t of Legal Affs. v. Snap Inc.,

No. 25-12814.

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intermediate scrutiny. The court thus enjoined Florida from enforcing the challenged provisions of HB3.

We stayed the preliminary injunction pending appeal. In

our stay order, we agreed with the district court (albeit tentatively)

that CCIA had standing, that Younger abstention didn’t apply, and

that the statute was likely content neutral. Nevertheless, we concluded (again, tentatively) that HB3 was sufficiently tailored to satisfy intermediate scrutiny. We therefore granted the stay on the

ground that Florida was likely to succeed on the merits.

Following oral argument of the appeal of the district court’s

preliminary-injunction order, we directed the parties to submit

supplemental briefing on the questions (1) whether CCIA has

standing and (2) whether the district court decided CCIA’s as-applied challenge.

II

Before diving into the merits, we need to address two

threshold questions: (1) whether CCIA has standing to pursue its

First Amendment challenge, and (2) whether the district court

should have abstained from deciding this case under Younger. For

reasons we’ll explain, we answer those questions yes and no, respectively.

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A

First, standing.3 “Article III standing is a ‘bedrock constitutional requirement.’” Food & Drug Admin. v. All. for Hippocratic

Med., 602 U.S. 367, 378 (2024) (quoting United States v. Texas, 599

U.S. 670, 675 (2023)). To establish standing, “a plaintiff must

demonstrate (i) that she has suffered or likely will suffer an injury

in fact, (ii) that the injury likely was caused or will be caused by the

defendant, and (iii) that the injury likely would be redressed by the

requested judicial relief.” Id. at 380.

CCIA asserts standing to vindicate the First Amendment

rights of its members—i.e., the social-media platforms. The Supreme Court has recognized that “an organization may sue to redress its members’ injuries” under what is known as “associational

standing.” United Food & Com. Workers Union Loc. 751 v. Brown Grp.,

517 U.S. 544, 552 (1996). It’s a “form of third-party standing” that

arguably “relax[es] both the injury and redressability requirements

for Article III standing.” All. for Hippocratic Med., 602 U.S. at 398–

99 (Thomas, J., concurring).

Under associational-standing principles, an organization

may sue on its members’ behalf when (1) “its members would otherwise have standing to sue in their own right,” (2) “the interests it

seeks to protect are germane to the organization’s purpose,” and

(3) “neither the claim asserted nor the relief requested requires the

3 “We review the legal question of standing de novo.” Charles H. Wesley Educ.

Found. v. Cox, 408 F.3d 1349, 1351 (11th Cir. 2005).

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participation of individual members in the lawsuit.” Brown Grp.,

517 U.S. at 553 (quoting Hunt v. Wash. State Apple Advert. Comm’n,

432 U.S. 333, 343 (1977)).

1

To satisfy the associational-standing test’s first requirement,

at least one of CCIA’s members must itself meet the three Article III standing elements: (1) injury in fact, (2) causation, and (3) redressability. See id.

An “injury in fact” is “an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Lujan v. Defs. of Wildlife,

504 U.S. 555, 560 (1992) (citation modified). In the pre-enforcement-challenge context, a “plaintiff satisfies the injury-in-fact requirement where he alleges an intention to engage in a course of

conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution

thereunder.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 159

(2014) (citation modified). In this circuit, “[t]he injury requirement

is most loosely applied—particularly in terms of how directly the

injury must result from the challenged government action—where

[F]irst [A]mendment rights are involved, because of the fear that

free speech will be chilled even before the law, regulation, or policy

is enforced.” Speech First, Inc. v. Cartwright, 32 F.4th 1110, 1120

(11th Cir. 2022). A First Amendment plaintiff has standing if “the

operation or enforcement of the government policy would cause a

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reasonable would-be speaker to self-censor—even where the policy falls short of a direct prohibition against the exercise of First

Amendment rights.” Id. (citation modified). “The fundamental

question under our precedent . . . is whether the challenged policy

‘objectively chills’ protected expression.” Id.

At least a handful of CCIA’s members satisfy the injury-infact requirement. The alleged conduct in which Snap, YouTube,

and Meta engage—and intend to continue to engage—is “arguably

affected with a constitutional interest” that is “proscribed by” HB3.

Susan B. Anthony List, 573 U.S. at 159. CCIA contends that its member platforms are likely to suffer First Amendment injuries because

HB3 will hinder their ability to communicate with their users

through “curated compilations of third-party speech,” Supp. Br. of

Appellees at 3–4, and features such as “[p]ush notifications” and

“personal interactive metrics,” Am. Compl. ¶¶ 23, 36, 49. “[C]ompiling and curating others’ speech” is an “expressive activity” protected by the First Amendment. Moody, 603 U.S. at 731. The Moody

Court concluded, based on the record in that case, that Facebook’s

and YouTube’s decisions about “which third-party content those

feeds will display, or how the display will be ordered and organized,” are “expressive choices” meriting First Amendment protection. Id. at 740. The same reasoning applies here. CCIA has alleged

that Snap, YouTube, and Meta (through Facebook and Instagram)

curate content “that they think will be particularly relevant to”

their users and choose that content for “a particular user based in

part on the content that the user has interacted with in the past.”

Am. Compl. ¶ 48; see also id. ¶¶ 22, 35. Therefore, by restricting

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some users’ ability to create accounts, HB3 would limit the platforms’ ability to engage in the expressive activity of delivering curated content to those users.

Moreover, at least some of CCIA’s members face a “credible

threat of prosecution.” Susan B. Anthony List, 573 U.S. at 159 (citation omitted). We’ve said that “when a plaintiff challenges a law

soon after it was enacted and the state vigorously defends the law

in court, we can infer a credible threat of prosecution exists.” Shen

v. Comm’r, Fla. Dep’t of Agric. & Consumer Servs., 158 F.4th 1227,

1242 (11th Cir. 2025) (citation modified). That’s what happened

here: The state has been nothing if not vigorous. And the record

shows that Snap and YouTube, for example, meet HB3’s coverage

criteria. The enforcement of HB3 would not only objectively chill

these platforms from delivering curated content to the younger users HB3 covers, see Speech First, Inc., 32 F.4th at 1120, but would

also pressure them into instituting “significant and costly compliance measures” to implement age-verification and parental-verification systems. Am. Compl. ¶ 21 (Snap); id. ¶ 34 (YouTube); id.

¶ 47 (Meta). Cf. Virginia v. Am. Booksellers Ass’n, 484 U.S. 383, 392

(1988) (holding that the plaintiffs met the injury-in-fact requirement because, “if their interpretation of the statute is correct, [they]

will have to take significant and costly compliance measures or risk

criminal prosecution”). CCIA has thus shown that at least one of

its members is likely to suffer an injury in fact.

The remaining requirements for Article III standing—causation and redressability—are clearly satisfied by at least one CCIA

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member. The “defendant’s conduct”—here, Florida’s enactment

of HB3—is the cause of the platform members’ First Amendment

injuries, and relief in the form of an injunction prohibiting HB3’s

enforcement would doubtlessly redress them.

Accordingly, CCIA has met the first prong of the associational-standing test by showing that at least one of its members has

Article III standing.

2

As for the second prong of the associational-standing test,

we agree with the district court—and Florida doesn’t contest—that

the interests that CCIA “aims to protect are germane to [its] purposes.” Brown Grp., 517 U.S. at 553.

3

CCIA also satisfies the third and final prong—namely, that

its claim can be resolved and requested relief can be granted without the participation of its individual members. Brown Grp., 517

U.S. at 553. The Supreme Court has called the individual-participation element a “judicially self-imposed limit” that aims to serve

“administrative convenience and efficiency.” Id. at 555–57. Unlike

the first two prongs, which are “constitutional necessit[ies],” this

third prong is “prudential.” Id. at 555–56. Meeting it rebuts the

“background presumption” that a litigant (here, CCIA) may not assert the rights of absent third parties (here, its member platforms).

Id. at 557.

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In similar circumstances, a number of other courts have held

that CCIA’s co-plaintiff, NetChoice, satisfies the associationalstanding test’s individual-participation prong. NetChoice L.L.C. v.

Fitch, 134 F.4th 799, 805 (5th Cir. 2025) (“NetChoice’s ‘claims can

be proven by evidence from representative injured members’ and

‘the participation of [certain] individual members does not thwart

associational standing.’”); CCIA v. Paxton, 747 F. Supp. 3d 1011,

1030 (W.D. Tex. 2024), aff’d in relevant part, 184 F.4th 420, 445 (5th

Cir. 2026); NetChoice v. Murrill, 812 F. Supp. 3d 594, 629–31 (M.D.

La. 2025); NetChoice, LLC v. Reyes, 748 F. Supp. 3d 1105, 1118–19 (D.

Utah 2024); NetChoice, LLC v. Griffin, No. 5:23-CV-5105, 2023 WL

5660155, at *10 (W.D. Ark. Aug. 31, 2023). We agree with them.

The state argues that CCIA doesn’t have associational standing because, on the merits, its First Amendment claim requires “numerous factual determinations about individual platforms.” Supp

Br. of Appellant at 6. For support, it cites Harris v. McRae, 448 U.S.

297, 321 (1980), and Georgia Cemetery Ass’n v. Cox, 353 F.3d 1319,

1322 (11th Cir. 2003). But both cases are distinguishable. In Harris,

a pro-choice division of a religious organization asserted that federal abortion-funding restrictions violated the First Amendment’s

Free Exercise Clause. 448 U.S. at 321. The Supreme Court held

that the group couldn’t proceed under an associational-standing

theory because adjudicating the free-exercise issues would necessarily entail an inquiry into whether and to what extent the restrictions operated coercively on particular members. Id. In Cox, a

cemetery association brought a Takings Clause challenge to a law

capping fees for the transfer of burial rights. 353 F.3d at 1322. We

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held that the group couldn’t assert associational standing because

resolving its takings claim required the participation of its members. “[T]he economic impact,” we reasoned, “will vary depending

upon the economic circumstances of” particular cemeteries. Id.

Generally, whether a violation occurred in the regulatory-takings

context requires an individualized inquiry into whether each affected party was denied the compensation it was due. Tahoe-Sierra

Pres. Council v. Tahoe Reg’l Plan. Agency, 535 U.S. 302, 322 (2002)

(characterizing regulatory-takings jurisprudence as entailing “‘essentially ad hoc, factual inquiries,’ designed to allow ‘careful examination and weighing of all the relevant circumstances’” (citation

omitted)).

This case is different. While free-exercise and takings claims

require consideration of the law’s effects on individual parties,

CCIA’s free-speech claim, which it brings on behalf of its member

platforms, turns on whether HB3 implicates the First Amendment,

whether it is content based or content neutral, and whether it is

appropriately tailored to the asserted state interest—inquiries that

don’t depend on fact-intensive determinations regarding the member platforms. Nor does CCIA’s requested remedy require the individual members’ participation—for the simple reason that it

seeks declaratory and injunctive relief, rather than damages. See

Brown Grp., 517 U.S. at 553–54 (“If in a proper case the association

seeks a declaration, injunction or some other form of prospective

relief, it can reasonably be supposed that the remedy, if granted,

will inure to the benefit of those members of the association actually injured.” (citation modified)).

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The state separately argues that First Amendment “claim[s]

related to algorithmic speech” are “fact intensive” and therefore

will “surely vary from platform to platform.” Supp. Br. of Appellant at 10 (quoting NetChoice, LLC v. Bonta, 152 F.4th 1002, 1014 (9th

Cir. 2025)). Not necessarily. To be sure, in Bonta, on which the

state relies, the Ninth Circuit held that a challenge brought by

NetChoice required the participation of individual member platforms. But the law and the challenge there don’t resemble those

here. In Bonta, NetChoice sued to enjoin the enforcement of a law

that restricted minors’ access to “personalized feeds” generated by

the platforms’ content-recommendation algorithms. 152 F.4th at

1010, 1014. Based on NetChoice’s acknowledgment that “each of

its members” and their algorithms were “unique,” the Ninth Circuit concluded that the law would implicate the First Amendment

only with respect to platforms whose algorithms were “expressive.” Id. at 1014. The determination whether each platform’s algorithm was expressive, the court concluded, was “fact intensive”

and required individual members’ participation. Id. HB3 is very

different; its restrictions are tethered not to each platform’s unique

algorithmic design but to so-called addictive features that are present across platforms.

We are satisfied that CCIA has satisfied the third and final

prong of associational standing.

* * *

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For these reasons, we hold that CCIA has associational

standing and may bring this action on behalf of its members. 4

B

We next address whether Younger v. Harris, 401 U.S. 37

(1971), required the district court to abstain from ruling on CCIA’s

4 In both its complaint and its initial brief on appeal, CCIA separately contended that it also has third-party standing to vindicate the First Amendment

rights of its members’ users. See, e.g., Am. Compl. ¶ 50 (“CCIA and NetChoice

have standing to assert . . . the First Amendment rights of their members’ current and prospective users.”); id. ¶¶ 7, 8 (same); Br. of Appellees at 43 (arguing

that CCIA and NetChoice have “‘prudential standing’ to assert the First

Amendment rights of their members’ users”). In its supplemental brief,

though, CCIA seems to have retreated from its original, standing-based position, and now it says instead that its contentions regarding users’ rights were

meant only to supplement the merits inquiry. See Supp. Br. of Appellees at 15

(calling the assertion of prudential standing a “misunderstanding”); id. (“Plaintiffs invoke users’ rights not to get into court or expand their universe of

claims, but because users are a necessary component of the requisite First

Amendment inquiry[.]”). In any event, CCIA’s assertion of third-party standing to pursue its members’ users’ rights runs more to its facial overbreadth

claim than its as-applied claim. But for reasons we explain in Part IV, we conclude that, at least on the record as it currently exists, CCIA hasn’t made the

showing necessary to proceed with any facial challenge. If CCIA wishes to

continue to assert the rights of its members’ users in connection with a facial

overbreadth challenge, the district court may address those issues then.

One more standing-related loose end: CCIA separately asserts thirdparty standing to pursue its members’ users’ rights on jus tertii grounds, which

could apply to its as-applied claim. We needn’t address this argument because

we find that CCIA has associational standing.

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preliminary-injunction motion in light of Florida’s state-court enforcement action against Snap, a member of NetChoice.5

“[A]bstaining from the ‘exercise of federal jurisdiction is the

exception, not the rule.’” New Ga. Project, Inc. v. Att’y Gen. of Ga.,

106 F.4th 1237, 1241 (11th Cir. 2024) (quoting Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 813 (1976)). Accordingly, only the “clearest of justifications merits abstention.” Id.

(quoting Jackson-Platts v. Gen. Elec. Cap. Corp., 727 F.3d 1127, 1140

(11th Cir. 2013)). In Younger, the Supreme Court recognized a “limited exception to the usual rule.” Id.

Under Younger, a federal court must abstain if (1) “there is an

ongoing state judicial proceeding,” (2) “the state proceeding implicates important state interests,” and (3) “there is an adequate opportunity in the state proceeding to raise constitutional challenges.” Id. at 1242 (citation modified) (quoting Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982)). The

question before us involves the first requirement—whether Florida’s enforcement action against Snap was “ongoing” in the relevant sense. Id.

Perhaps counterintuitively, a state proceeding is deemed to

be “ongoing” for Younger purposes “even if it’s not actually pending

when the federal suit is filed—provided that it’s instituted . . . ‘before any proceedings of substance on the merits have taken place

5 “We review a Younger abstention decision for an abuse of discretion.” Hughes

v. Att’y Gen. of Fla., 377 F.3d 1258, 1262 (11th Cir. 2004).

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in federal court.’” Id. at 1243 (quoting Hicks v. Miranda, 422 U.S.

332, 349 (1975)) (emphasis in original). That means that if the federal suit is still in an “embryonic stage” and “no contested matter

has been decided” by the federal court by the time the state brings

its enforcement action, the latter will be treated as if it were “ongoing”—meaning that the federal court must abstain from further litigation. Tokyo Gwinnett v. Gwinnett Cnty., 940 F.3d 1254, 1268 (11th

Cir. 2019).

Whether “proceedings of substance on the merits” have occurred in a federal suit entails a “fact-specific assessment of the circumstances.” Id. at 1272. That assessment depends on “the time

that the district court has spent considering the case, any motions

ruled on, any discovery, the number of conferences [or hearings]

held, and any change in the parties’ position as a result of the federal litigation.” Id. “[T]he filing of motions” is also relevant, “even

if the district court did not rule” on them. Id. And even “significant

and substantial procedural steps” can qualify as “proceedings of

substance on the merits” sufficient to preclude abstention. Id. at

1271–72.

Florida brought its enforcement action against Snap nearly

six months after CCIA initially filed its lawsuit, and during that

span, “proceedings of substance on the merits” undoubtedly occurred in federal court. Let’s recap: (1) Florida moved to dismiss

CCIA’s action, and (2) CCIA responded; (3) Florida filed an opposition to CCIA’s preliminary-injunction motion, and (4) CCIA reUSCA11 Case: 25-11881 Document: 94-1 Date Filed: 10/14/2026 Page: 20 of 59

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plied; (5) the district court held a hearing on CCIA’s motion, a substantial portion of which was dedicated to a discussion of the merits

of CCIA’s claim, see Prelim. Inj. Hr’g Tr. 21–41, 68–92, 101–114,

123–135, Dkt. No. 71; (6) the court then denied CCIA’s motion (albeit on standing grounds); (7) CCIA filed an amended complaint

and (8) renewed its preliminary-injunction motion; and (9) the district court convened a status conference and (10) issued a briefing

schedule.

Along the way, (11) the parties conducted limited discovery,

including several depositions, all of which bore on the merits to

some extent. In particular, the state deposed four industry witnesses, see Cleland Dep., Dkt. No. 51-4 (testifying about

NetChoice’s members, their business practices, and their age-verification systems); Schruers Dep., Dkt. No. 51-5 (testifying about

CCIA’s members, their business practices, and their parental controls); Boyle Dep., Dkt. No. 51-6 (testifying about Snapchat’s features and parental controls); Veitch Dep., Dkt. No. 51-7 (testifying

about YouTube’s features and age-based policies and systems). So

too, CCIA deposed three of Florida’s expert witnesses, see Twenge

Dep. 32–34, 53–57, Dkt. No. 63-1 (testifying about how social-media features trigger harmful behavior in children); Allen Dep. 12–

16, 58–139, Dkt. No. 63-2 (testifying about how age-verification systems function); Alter Dep. 27–54, Dkt. No. 63-3 (testifying about

research on behavioral addiction and features of digital platforms

that make them difficult to resist).

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To recount this history, we think, is to answer the Younger

question: By the time Florida brought its enforcement action

against Snap, CCIA’s federal case had passed the “embryonic

stage.” Tokyo Gwinnett, 940 F.3d at 1268. The district court did not

abuse its discretion in declining to abstain under Younger.

III

On, then, to the merits. 6 As already explained, CCIA presented, and the district court addressed, both facial and as-applied

challenges to HB3.7 We will consider CCIA’s as-applied challenge

6 “We review the district court’s grant of a preliminary injunction for abuse of

discretion” and the underlying questions of law de novo. Noble Prestige Ltd. v.

Galle, 83 F.4th 1366, 1374 (11th Cir. 2023).

7 Candidly, the district court’s order is less than pellucid. On one reading, the

court’s preliminary injunction might be understood as invalidating HB3 only

on its face. See Dist. Ct. Order, June 3, 2025, at 57 n.33 (“[A]lthough Plaintiffs’

amended complaint and motion for preliminary injunction do not expressly

state that they are raising a facial challenge, their briefing indicates that they

are . . . . Regardless, even if Plaintiffs had not brought a facial challenge, this

Court would be permitted to evaluate the law’s constitutionality on its face.”);

id. at 58 (“Defendant Uthmeier must take no steps to enforce [the challenged

provisions of HB3] until otherwise ordered.”).

Notably, though, in their supplemental briefs before us, the parties

agree that the district court addressed CCIA’s as-applied claim, as well. See

Supp. Br. of Appellant at 20–21; Supp. Br. of Appellees at 19–20. We agree

with them. Understood in the context of the district court’s entire order—and

even more so in the light of the parties’ competing contentions before that

court—we think it clear that the court preliminarily enjoined HB3 both on its

face and as applied to CCIA’s members. See, e.g., Dist. Ct. Order, June 3, 2025,

at 25 (“This Court begins by noting that Plaintiffs bring both facial and as-applied challenges to Florida’s law . . . .”); id. at 28 (observing that much of the USCA11 Case: 25-11881 Document: 94-1 Date Filed: 10/14/2026 Page: 22 of 59

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first, and then deal with its facial challenge—which presents unique

issues—in Part IV. Our evaluation of CCIA’s as-applied challenge

proceeds in three parts. First, we ask whether HB3 implicates the

First Amendment at all. Second, if it does, we must determine

whether HB3 is content based or content neutral. And finally, we

must decide whether HB3 survives the requisite level of scrutiny.

A

A law implicates the First Amendment—and thus triggers

constitutional scrutiny of some sort—if it either (1) “directly regulate[s] protected expressive activity” or (2) regulates even non-expressive conduct in a way that “impose[s] a disproportionate burden upon those engaged in protected First Amendment activities.”

TikTok, Inc. v. Garland, 604 U.S. 56, 68 (2025) (per curiam) (quoting

Arcara v. Cloud Books, Inc., 478 U.S. 697, 703–04 (1986)).

Florida contends that HB3 “regulates product design, not

children’s speech,” and, accordingly, doesn’t even implicate the

First Amendment. Br. of Appellant at 27. In particular, the state

says, HB3 restricts only the creation of accounts, not social-media

First Amendment analysis “is the same for both the facial and as-applied challenges,” and explaining the district court’s view that only at the tailoring stage

does a court “separately consider[] whether Plaintiffs have carried their burden

to sustain a facial challenge”); id. at 52–53 (“[T]his Court concludes that Plaintiffs are substantially likely to succeed not just in their as-applied challenge but

in their facial challenge as well.”).

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access writ large, and thus regulates only “commercial transaction[s]”—namely, a platform’s ability to “enter[] into a contract”

with children of a certain age. Id. at 28.

Even accepting the state’s characterization, it seems clear

enough to us that HB3 “disproportionate[ly] burden[s]” CCIA’s

member platforms’ “protected First Amendment activities,” TikTok, 604 U.S. at 68—namely, “compiling and curating others’

speech” for their users, Moody, 603 U.S. at 731. In particular, HB3

burdens platforms’ ability to communicate with their users by requiring them (1) to prohibit minors under 14 years of age from creating or maintaining accounts and (2) to secure parental consent

before communicating with 14- and 15-year-olds.

We have little trouble concluding that HB3’s restrictions implicate the First Amendment—and thus trigger constitutional scrutiny. The trickier question, to which we turn next: What kind of

scrutiny?

B

First Amendment doctrine distinguishes between speech restrictions that are “content based” and those that are “content neutral.” Free Speech Coal. v. Paxton, 606 U.S. 461, 471 (2025). A content-based regulation triggers “strict” constitutional scrutiny,

meaning that it must represent “the least restrictive means” of accomplishing a compelling governmental interest. Id. (quoting

McCullen v. Coakley, 573 U.S. 464, 478 (2014)). A content-neutral

regulation, by contrast, triggers only “intermediate” scrutiny,

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meaning (although the formulations vary) that it need only “advance[] important governmental interests unrelated to the suppression of free speech and . . . not burden substantially more speech

than necessary to further those interests.” TikTok, 604 U.S. at 70

(quoting Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 189 (1997)

(Turner II)). For reasons we will explain, we hold that HB3 is a content-neutral speech regulation. Accordingly, the law is subject to

intermediate, rather than strict, scrutiny.

1

A law is content based if it “target[s] speech based on its communicative content.” TikTok, 604 U.S. at 70 (quoting Reed v. Town

of Gilbert, 576 U.S. 155, 163 (2015)). To be clear, a law can be content based either on its face or in its justification. A “law is content

based on its face if it ‘applies to particular speech because of the

topic discussed or the idea or message expressed.’” Id. (quoting

Reed, 576 U.S. at 163); see also Free Speech Coal., 606 U.S. at 504 (Kagan, J., dissenting) (observing that a law is content based if it “draws

distinctions based on the topic, subject matter, idea, or message expressed” (citation modified)). Alternatively, even a facially content-neutral law can be content-based if “it cannot be justified without reference to the content of the regulated speech or was adopted

by the government because of disagreement with the message the

speech conveys.” TikTok, 604 U.S. at 70–71 (quoting Reed, 576 U.S.

at 164 (citation modified)).

And the flip side? A law is facially content neutral if it doesn’t

“target particular speech based upon its content”—or, put another

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way, doesn’t “impose a ‘restriction, penalty, or burden’ by reason

of content.” Id. at 71 (quoting Turner Broad. Sys., Inc. v. FCC, 512

U.S. 622, 644 (1994) (Turner I)). A good proxy for content neutrality: Can the speaker “‘avoid or mitigate’ the effects of the [law] by

altering” the substance of his or her expression? Id. (quoting Turner

I, 512 U.S. at 644). If so, the law is likely content based; if not, it’s

probably content neutral. A law has a content-neutral justification

if it “neither references the content of speech . . . nor reflects disagreement with the message such speech conveys.” Id. at 72. As is

probably evident, content-neutral laws “pose a less substantial risk

of excising certain ideas or viewpoints from the public dialogue”

than those that are content based. Id. at 70 (quoting Turner I, 512

U.S. at 642).

A pair of examples illustrate the distinction between content-based and content-neutral speech restrictions. In Brown v. Entertainment Merchants Ass’n, the Supreme Court held that a California law banning vendors from selling “violent video games” to minors was an impermissible content-based speech restriction. 564

U.S. 786, 789 (2011). “Violent” speech, the Court reasoned, is a

particular kind of speech—a particular kind of content—and California’s law singled it out for unfavorable treatment vis-à-vis

speech that didn’t depict violence. Id. at 799. Citing gory examples

from Grimm’s Fairy Tales, The Odyssey, Inferno, and Lord of the Flies,

the Court reasoned that violent content has historically been protected for minors. Id. at 795–96. So, regardless of form—whether

in print, television, or video games—California’s attempt to draw

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a distinction between violent and nonviolent speech was impermissibly content based. Id. at 799. Even as to minors, who enjoy more

limited First Amendment protections, the government doesn’t possess “a free-floating power to restrict the ideas to which children

may be exposed.” Id. at 794 (emphasis added). Accordingly, the

Court concluded, speech that is protected for minors—including

violent speech—“cannot be suppressed solely to protect the young

from ideas or images that a legislative body thinks unsuitable for

them.” Id. at 795 (quoting Erznoznik v. City of Jacksonville, 422 U.S.

205, 213 (1975)).

In TikTok, by contrast, the Supreme Court held that a federal

statute that required a Chinese social-media company either to sell

its U.S.-based operations to U.S. owners or to cease operations in

this country was content neutral. TikTok, 604 U.S. at 66, 71. The

Court reasoned that the law was facially content neutral because

its prohibitions didn’t “target particular speech based upon its content,” “regulate speech based on its function or purpose,” or “impose a ‘restriction, penalty, or burden’ by reason of content” on the

company’s service. Id. at 71. Put simply, it didn’t “facially regulate

‘particular speech because of the topic discussed or the idea or message expressed.’” Id. (quoting Reed, 576 U.S. at 163). And, the

Court concluded, the statute’s justification was also content neutral: to prevent China, “a foreign adversary[],” “from collecting vast

amounts of sensitive data from” millions of American users. Id. at

71–72. That purpose, the Court said, was “unrelated to the content

of expression,” and it “neither reference[d] the content of speech

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on TikTok nor reflect[ed] disagreement with the message such

speech convey[ed].” Id. at 72 (citing Ward, 491 U.S. at 792–93).

HB3 more closely resembles the law at issue in TikTok than

the one in Brown. HB3 is facially content neutral: It regulates social-media platforms based on their functional capabilities and features, not the content they communicate. The law neither references the substance of the speech on any platform nor draws distinctions based on it. Put differently, HB3 applies to platforms

wholly without regard to the topics discussed or the ideas or messages conveyed on them. Truth Social is just as likely as Instagram

to be affected by HB3 so long as (1) a proportion of minors under

16 spend an average of at least two hours a day on it; (2) it uses

infinite scrolling, push notifications, auto-play, or livestreaming, or

displays user-engagement metrics; and (3) it selects content algorithmically for users. Fla. Stat. § 501.1736(1)(e). And tellingly, neither a platform nor a user can “avoid or mitigate” the effects of HB3

by “altering” the substance of any posted expression. TikTok, 604

U.S. at 71 (quoting Turner I, 512 U.S. at 644).

HB3’s justification is also content neutral: to “protect[] children from [social-media] addiction and associated mental-health

harms.” Br. of Appellant at 36. That purpose is “unrelated to the

content of expression” on any given platform, and it doesn’t “reflect[] disagreement with the message such speech conveys.” TikTok, 604 U.S. at 72. There’s no indication, for instance, that Florida

enacted HB3 because it disagreed with social-media companies’ decisions to “deplatform” users who “advocate for terrorism,” Moody,

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603 U.S. at 736–37, deprioritize posts on “conspiracy theories about

the origin of the [COVID] virus,” Murthy v. Missouri, 603 U.S. 43,

51 (2024), or fact-check “misleading claims about elections,” id. at

50. 8

By contrast, HB3 is easily distinguished from the violentvideo-games restriction at issue in Brown. That law was doomed

because it separated video games with violent content from video

games without it. HB3 makes no comparable distinction.

2

CCIA has counterarguments, of course, and they deserve

careful consideration.

First, CCIA contends that HB3 abridges its member platforms’ First Amendment rights by restricting “a website’s choices

about how to organize and present collections of third-party

speech,” which, as already noted, Moody held to be “protected expressive activity.” Br. of Appellees at 38 (citing Moody, 603 U.S. at

731–32). Maybe so, but the fact that a law regulates expressive activity (or more accurately here, “disproportionate[ly] burden[s]” it

in a way that we’ve found HB3 does, see supra at 22–23) merely puts

8 To be clear, HB3’s content neutrality is evident not only in its rules but also

in its exceptions. For instance, the term “social-media platform” is defined not

to include “an online service, website, or application where the exclusive function is e-mail or direct messaging consisting of text, photographs, pictures, images, or videos shared only between the sender and the recipients . . . .” Fla.

Stat. § 501.1736(1)(e). Whether HB3 applies to an email or messaging service

has nothing to do with the subject matter or topic of any correspondence.

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the First Amendment on the table—it doesn’t ipso facto render the

law unconstitutional. The next question in the decision tree—and

in practical effect, often the most important—is whether the law

regulates based on content. And on that score, HB3 bears scant

resemblance to the law at issue in Moody. The Supreme Court

treated that law as content based because it restricted social-media

platforms’ freedom to “delet[e], alter[], label[], or deprioritiz[e]”

certain posts—which is to say, it specifically hindered their ability

to curate and moderate their content as they saw fit. Moody, 603

U.S. at 720. Put simply, the law “interfere[d] with [platforms’] editorial choices . . . by ordering the excluded to be included.” Id. at

732. HB3 doesn’t restrict platforms’ content-moderation determinations or tools, but rather it regulates only front-end access and

website mechanics (e.g., so-called “addictive features”).

Second, CCIA compares HB3 to a hypothetical statute that

“restrict[s] all minors from accessing libraries just because some

spend (in the state’s view) too much time reading page-turning

novels,” or a law that limits minors “from using streaming services

because some spend too much time watching engaging cartoons.”

Br. of Appellees at 17. Surely, CCIA says, such restrictions would

be unconstitutional—and so, the argument goes, must be HB3. Id.

Perhaps the laws that CCIA imagines would be unconstitutional—

we needn’t say, and so we don’t. But if those laws did violate the

First Amendment, it wouldn’t be because they were content

based—but rather because, for whatever reason, they failed the

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scrutiny applicable to content-neutral regulations, a topic we’ll address soon enough. To be clear, though, those laws would be content neutral.

Third, CCIA contends that HB3 is content based because it

applies only to so-called “social” speech: The law, CCIA asserts,

targets websites “based on the ‘social’ subject matter ‘of the material they disseminate.’” Br. of Appellees at 26 (quoting NetChoice v.

Reyes, 748 F. Supp. 3d 1105, 1122–23 (D. Utah 2024)) (citation modified). Dissenting from our order staying the preliminary injunction, Judge Rosenbaum similarly contended that HB3’s restrictions

are a “proxy for a content-based regulation directly prohibiting

‘public, interactive, user-to-user social speech.’” Comput. & Commc’ns

Indus. Ass’n v. Uthmeier, No. 25-11881, 2025 WL 3458571, at *15

(11th Cir. Nov. 25, 2025) (Rosenbaum, J., dissenting) (emphasis in

original). Respectfully, we disagree. The “social”-ness of speech is

a function of its form, not its substance. Put simply, “social”

speech, as CCIA seems to be using the term, is simply speech that

occurs between users on social-media platforms, wholly without

regard to “the topic discussed or the idea or message expressed.”

TikTok, 604 U.S. at 70. Users can engage in so-called “social” speech

about any topic, from the sublime (religion, philosophy, etc.) to the

ridiculous (celebrity gossip, cat videos, etc.).

Finally, CCIA asserts that HB3’s focus on the “addictive features” of social-media platforms, rather than, say, streaming services, shows that Florida is “plainly focused on particular content.”

Br. of Appellees at 16. But that’s not quite right, either. Regardless

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of whether the content on a social-media platform is a clip from

The Bachelor or a political meme, the platform is subject to HB3. It

can’t “avoid or mitigate” the effects of HB3 “by altering [its]

speech.” TikTok, 604 U.S. at 71.

* * *

For the foregoing reasons, we conclude that while HB3 restricts First Amendment-protected activity, it likely does so in a

content-neutral manner.

C

A content-neutral law like HB3 is subject to intermediate

scrutiny, meaning that it is valid so long as it “advances important

governmental interests unrelated to the suppression of free speech

and does not burden substantially more speech than necessary to

further those interests.” TikTok, 604 U.S. at 70 (quoting Turner II,

520 U.S. at 189). A regulation “advances” the government interest

so long as it “would be achieved less effectively absent the regulation.” Free Speech Coal., 606 U.S. at 496 (quoting TikTok, 604 U.S. at

70).

A few intermediate-scrutiny corollaries: First, to satisfy intermediate scrutiny—unlike strict scrutiny—a speech regulation

need not be the “least restrictive means of serving the State’s interest.” Id. (quoting Ward, 491 U.S. at 798) (citation modified). Even

if other “approaches are equally or more effective, under intermediate scrutiny a ‘regulation will not be invalid simply because a

court concludes that the government’s interest could be adequately served by some less-speech-restrictive alternative.’” Id. at

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497–98 (quoting Ward, 491 U.S. at 800). Second, “[t]he regulation’s

validity does not turn on our agreement with the legislature concerning the most appropriate method for promoting significant

government interests or the degree to which those interests should

be promoted.” Id. at 496 (citation modified) (quoting Ward, 491

U.S. at 800). Finally, intermediate scrutiny does not impose on

speech regulations a “‘freestanding underinclusiveness limitation,’

and the Government ‘need not address all aspects of a problem in

one fell swoop.’” TikTok, 604 U.S. at 76 (quoting Williams-Yulee v.

Fla. Bar, 575 U.S. 433, 449 (2015)).

Let’s evaluate HB3 against each of intermediate scrutiny’s

two core requirements—again, that it (1) advance an “important

governmental interest[] unrelated to the suppression of free

speech” and (2) “not burden substantially more speech than necessary” to further that interest. TikTok, 604 U.S. at 70.

1

HB3 easily satisfies the first requirement. CCIA doesn’t dispute that HB3 advances an important state interest; it acknowledges that “protecting minors is certainly a laudable goal.” Br. of

Appellees at 28. Even so, it says, HB3 fails intermediate scrutiny’s

first element because Florida’s interest “is plainly related to the suppression of expression.” Id. In particular, CCIA emphasizes that

HB3 prohibits addictive features only on websites, not on other “services that disseminate speech”—like, for instance, “books that end

in cliffhangers.” Id. at 28–29. Florida singles out social-media platUSCA11 Case: 25-11881 Document: 94-1 Date Filed: 10/14/2026 Page: 33 of 59

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forms, CCIA insists, because they host speech that Florida “distrusts.” Id. at 17. CCIA’s argument doesn’t necessarily follow. It

would hold up only if websites have an inherent expressive value

that differs from the expressive value inherent in all books. But

both books and websites communicate content that spans the full

range of expressive values; they just do so in different formats. Absent a restriction on the substance of the topics, ideas, or messages

communicated by websites as compared to those communicated

by books, HB3’s “singling out” of websites is not, as CCIA argues,

“plainly related to the suppression of expression.” 9 Br. of Appellees

at 28.

2

HB3 also likely satisfies intermediate scrutiny’s second requirement—that it be appropriately tailored to advancing Florida’s

interest in protecting minors. See TikTok, 604 U.S. at 70. In partic9 CCIA’s argument is better understood as a critique of HB3’s tailoring—that

to the extent it seeks to protect minors from “addictive” speech features, HB3

is underinclusive inasmuch as it doesn’t also cover literary devices. But setting

aside the question whether literary devices are addictive, even if the state believed them to be an issue, it “need not address all aspects of a problem in one

fell swoop” because intermediate scrutiny imposes no “freestanding underinclusiveness limitation.” TikTok, 604 U.S. at 76 (quoting Williams-Yulee, 575

U.S. at 449). Further, the analogy to literary devices that make books more

engaging—like cliffhangers, shorter chapters, or serialization—simply reinforces Florida’s contention that it’s not focused on speech and the accompanying ideas, topics, and messages, but rather on features that in and of themselves

are agnostic as to content.

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ular, HB3 doesn’t “burden substantially more speech than necessary” because it (1) calibrates its restrictions by age, (2) regulates

minors’ creation of social-media accounts, not necessarily their access to the platforms themselves, (3) covers only those platforms

that have been determined to induce heavy use by children, and

(4) applies only to platforms that use both algorithms and one of

several addictive features. Id.; see Fla. Stat. § 501.1736(1)(e).

First, HB3 is age delimited. It prohibits minors under 14

from creating accounts, id. § 501.1736(2)(a), and it requires 14- and

15-year-olds to obtain parental consent before doing so, id.

§ 501.1736(3)(a). Notably, it imposes no limitations for those 16

years of age and older. The law thus applies only to younger minors and recognizes the fine-grained distinctions even among those

to whom it applies—namely, that 13-year-olds (in general, middleschoolers) are different from 14- and 15-year-olds (those starting

high school), who, in turn, are different from those 16 and up (budding adults).

Second, even among those to whom HB3 does apply, the

law restricts only their ability to create their own accounts, not

their ability to access social-media platforms per se. The creation

of a social-media account is a commercial act—a business transaction. Even a minor—indeed, even a young child—may continue

to use the platforms provided he either (1) uses his parents’ (or

someone else’s) account or (2) gains access without an account.

Third, HB3 targets only the platforms to which many minors are already addicted. As a reminder, a platform comes within

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HB3’s purview only if at least 10% of daily active users under 16

years old spend an average of two hours or more per day on it. Fla.

Stat. § 501.1736(1)(e). Together with its other limitations, HB3’s

tailoring efforts fall within the broad range of potential legislative

solutions that intermediate scrutiny permits.

And fourth, HB3 operates not as an outright prohibition of

platform usage but rather as a “conditional ban” of sorts—namely,

on platforms’ use of addictive features and algorithms. See TikTok,

604 U.S. at 74, 77. The law applies only to platforms that use a

combination of algorithms and addictive features and that succeed

in keeping many minors on them for an average of at least two

hours a day. See Fla. Stat. § 501.1736(1)(e). Refraining from using

either algorithms or addictive features, or remaining below the

temporal threshold, exempts a platform from the law’s application.

Now, none of that is necessarily to say that HB3 embodies

the best policy choice. Maybe, maybe not. But intermediate scrutiny affords governments “latitude . . . to design regulatory solutions to address content-neutral interests.” TikTok, 604 U.S. at 77

(quoting Turner II, 520 U.S. at 213). Accordingly, it is within Florida’s discretion to draw the lines it has—many of which, of course,

narrow the law’s scope. So, for instance, Florida may validly opt to

prohibit minors under 14, rather than 16, from creating social-media accounts, and to require 16-year-olds, rather than all those under 18, to obtain their parents’ consent before creating accounts.

So too, it may validly train its attention on platforms that a segment

of children use more than two hours per day, rather than one. And

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36 Opinion of the Court 25-11881

finally, it is free to focus on sites that use both algorithms and “addictive features,” rather than one or the other of those.

The numerous limitations on HB3’s sweep—that it applies

only to users under the age of 16, operates differently on 14- and

15-year-olds than on younger children, restricts only account creation and not access per se, and affects only those platforms using

features most likely to addict minors—differentiate it from the law

at issue in Packingham v. North Carolina, 582 U.S. 98 (2017), on

which CCIA relies. There, applying intermediate scrutiny, the Supreme Court invalidated a North Carolina statute making it a felony for any registered sex offender to access any “commercial social networking Web site” that allowed any minors to use it. Id. at

101. That law operated with “extraordinary breadth.” Id. at 109

(Alito, J., concurring in the judgment). Unlike HB3, which applies

only to a subset of minors, the statute there covered all registered

sex offenders. And unlike HB3, which applies only to a subset of

social-media platforms, the law there defined the covered sites exceedingly broadly; it included “commonplace social media websites like Facebook and Twitter,” as well as “websites as varied as

Amazon.com, Washingtonpost.com, and Webmd.com.” Id. at

101, 106 (majority opinion). And unlike HB3, which restricts account creation but doesn’t limit access to the platforms per se, the

statute there forbade any usage of the covered sites. Id. at 101. HB3

is tailored in a way that the law at issue in Packingham was not.

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CCIA complains that Florida failed to adopt social-media restrictions that would have restricted less speech. Citing the Supreme Court’s decision in an abortion-clinic-buffer-zone case,

McCullen v. Coakley, 573 U.S. 464 (2014), CCIA contends that the

state didn’t “demonstrate that alternative measures that burden

substantially less speech would fail to achieve the government’s interests.” Br. of Appellees at 32 (quoting McCullen, 573 U.S. at 495).

One such alternative, CCIA says, would have been to defer the decision of whether children can open social-media accounts entirely

to their parents, who “already have many tools to protect their minors on the Internet.” Id.

But again, as the Supreme Court recently reiterated in Free

Speech Coalition, under intermediate scrutiny—at least as conventionally applied, and as applied in Internet-related cases—a regulation needn’t be the “least restrictive means of serving the State’s

interest.” 606 U.S. at 496 (quoting Ward, 491 U.S. at 798) (citation

modified). Even if other “approaches are equally or more effective,” HB3 isn’t “‘invalid simply because a court concludes that the

government’s interest could be adequately served by some lessspeech-restrictive alternative.’” Id. at 497–98 (quoting Ward, 491

U.S. at 800). Instead, the legislature has some discretion to choose

“the most appropriate method for promoting” its interest in curbing minors’ social-media addiction or “the degree to which th[at]

interest[] should be promoted.” Id. at 496 (quoting Ward, 491 U.S.

at 800). Florida chose to prohibit the creation of social-media accounts for those under 14 because it found that relying exclusively

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on parental supervision and consent was “ineffective.” Br. of Appellant at 8; see also States’ Amicus Br. at 7 (“Parental controls have

already proven insufficient to stem the tide of harm kids are suffering. And besides, kids inevitably find workarounds.”). 10

CCIA seeks to distinguish Free Speech Coalition on the ground

that the law at issue there was less speech-restrictive than HB3. In

that case, the Supreme Court upheld under intermediate scrutiny

a Texas statute requiring pornographic websites to verify users’

10 We acknowledge that McCullen could be read to impose something that

looks like a least-restrictive-means requirement, even in the context of intermediate scrutiny. There, in the course of invalidating a Massachusetts statute

that made it a crime to stand on a public street or sidewalk within 35 feet of

an abortion clinic, the Supreme Court said that, for intermediate-scrutiny purposes, the law burdened substantially more speech than necessary because the

state hadn’t “seriously undert[aken] to address the problem with less intrusive

tools readily available to it.” McCullen, 573 U.S. at 494. The Court faulted

Massachusetts for failing to use other tools at its disposal—such as existing

general criminal statutes prohibiting assault, harassment, or breach of the

peace—to “ensur[e] public safety outside abortion clinics” and “prevent[] harassment and intimidation of patients and clinic staff.” Id. at 490, 492; see also

Fla. Preborn Rescue, Inc. v. City of Clearwater, 161 F.4th 732, 745 (11th Cir. 2025)

(applying McCullen to hold that a city ordinance prohibiting people from standing on a public sidewalk five feet away from an abortion-clinic driveway burdened substantially more speech than necessary because the city could have

enforced the state’s existing anti-obstruction statute to achieve the same interest).

The simple response to McCullen—and its arguable imposition of a

least-restrictive-means-like requirement as part of an intermediate-scrutiny

analysis—is that Free Speech Coalition is both (1) more recent and (2) as an Internet-related case, more closely on point.

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ages. 606 U.S. at 495. In the course of so holding, the Court observed that the Texas law prohibited minors from accessing

speech—namely, pornography—that was unprotected as to them.

Id. CCIA contends that, by contrast, HB3 prohibits certain minors

from accessing protected speech. That may be so, but Free Speech

Coalition didn’t purport to establish a constitutional outer limit;

nothing in the Court’s reasoning there precludes a state from imposing an age-verification requirement that operates to limit minors’ access to some protected speech—provided, of course, that it

does so in a content-neutral manner.

To the contrary, everything the Court said in Free Speech Coalition seems to point in the other direction. The Court emphasized, for instance, that “[r]equiring age verification is common

when a law draws lines based on age.” Id. at 479. It noted that

many states require proof of age to buy alcohol and tobacco, as

well as to obtain licenses to carry a handgun, to drive, and to marry.

Id. And in a similar vein, it observed that brick-and-mortar stores

have long engaged in the “widespread” practice of verifying a purchaser’s age in person for “age-restricted services, such as online

gambling, alcohol and tobacco sales, and car rentals.” Id. at 479,

497. And, importantly, the Court stressed that in the online world,

“the need for age verification . . . is even greater” because “[u]nlike

a store clerk, a website operator cannot look at its visitors and estimate their ages.” Id. at 481.

* * *

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For the foregoing reasons, we hold that HB3 is likely constitutional as applied to CCIA’s members. Yes, it implicates the First

Amendment and thus triggers constitutional scrutiny. But it likely

does so in a content-neutral manner, and it likely survives intermediate scrutiny because it doesn’t burden substantially more speech

than necessary to advance the important interest in protecting minors from social-media addiction.

IV

Last but not least, we must separately assess CCIA’s facial

challenge in light of the Supreme Court’s recent decision in Moody

v. NetChoice, LLC, 603 U.S. 707 (2024). As we understand it, CCIA’s

facial challenge takes two forms: what we’ll call a “traditional” facial challenge, in which it seeks to vindicate its members’ First

Amendment rights; and a facial “overbreadth” challenge, in which

it seeks to vindicate its members’ users’ rights. For reasons previously explained, we decline to examine the user-focused overbreadth challenge, as CCIA seems (at least for now) to have walked

away from it. See supra at 17 n.4. That leaves the more traditional,

member-focused facial challenge.

As the district court observed, CCIA raised both facial and

as-applied First Amendment challenges to HB3. And despite some

initial uncertainty, the parties seem to agree that the district court

considered and adjudicated both claims. See Supp. Br. of Appellant

at 20–21; Supp. Br. of Appellees at 19–20. For instance, in granting

CCIA’s preliminary-injunction motion, the district court held that

CCIA was “substantially likely to succeed not just in [its] as-applied

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challenge but in [its] facial challenge as well.” Dist. Ct. Order, June 3,

2025, at 52–53 (emphasis added).

We hold that CCIA has not carried its facial-challenge “burden” under Moody. 603 U.S. at 744. As the Supreme Court warned

there, the decision to mount a facial challenge “comes at a cost.”

Id. at 723. Because “facial challenges threaten to short circuit the

democratic process,” they are, by design, “hard to win.” Id. (citation modified); see also id. at 745 (Barrett, J., concurring) (“[D]ealing

with a broad swath of varied platforms and functions in a facial

challenge strikes me as a daunting, if not impossible, task.”); id. at

748 (Jackson, J., concurring in part and concurring in the judgment)

(“[P]laintiffs bringing a facial challenge must clear a high bar.”); id.

at 778 (Alito, J., concurring in the judgment) (“[P]arties mounting

facial attacks [must] satisfy demanding requirements.”). Even in

First Amendment cases, where the facial-challenge bar is lower

than it otherwise might be, the plaintiff must show that “a substantial number of [the law’s] applications are unconstitutional, judged

in relation to the statute’s plainly legitimate sweep.” Id. at 723 (majority opinion) (quoting Ams. for Prosperity Found. v. Bonta, 594 U.S.

595, 615 (2021)).

To conduct the required Moody analysis, a reviewing court

proceeds in two steps. First, it must “assess the state laws’ scope,”

asking, “What activities, by what actors, do the laws prohibit or

otherwise regulate?” Id. at 724. Having done that, the court must

then “decide which of the laws’ applications violate the First

Amendment, and . . . measure them against the rest.” Id. at 725.

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42 Opinion of the Court 25-11881

To succeed on a facial challenge, a plaintiff must show that “the

law’s unconstitutional applications substantially outweigh its constitutional ones.” Id. at 724.

CCIA asserts that HB3 is invalid on its face because it “is unconstitutional in all its applications.” Br. of Appellees at 43 n.7 (emphasis added). Echoing the district court, CCIA reasons that HB3

“applies to any service where people upload content and view the

content of others” and thus “implicates the First Amendment in

every application except for a service that only has unconstitutional

speech.” Oral Arg. 28:44–28:56. And Florida, CCIA says, hasn’t

shown “that there’s any service that’s covered by this law that is all

about only unconstitutional speech.” Id. 28:57–29:03; accord Dist.

Ct. Order, June 3, 2025, at 27–28 (observing that HB3 covers only

social media platforms “on which protected speech . . . proliferate[s]” and that Florida hadn’t “hypothesize[d]” that the law could

cover sites whose “content is all or mostly unprotected speech”).

Respectfully, we don’t think that’s quite right. To be sure,

HB3 applies to websites that enable users to “‘upload content or

view the content or activity of other users’—in other words, engage in speech.” Dist. Ct. Order, June 3, 2025, at 43 n.25 (citing Fla.

Stat. § 501.1736(1)(e)). But those features—uploading and viewing

content—aren’t necessarily limited to websites that host only fully

protected speech. Put differently, just because users are “engag[ing] in speech” on a platform doesn’t mean that their expression is fully protected by the First Amendment. Id. There are all

kinds of social-media platforms featuring—or even if not featuring,

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permitting—all kinds of expression. To be sure, much of that expression is fully protected. But some isn’t. The Supreme Court has

held, for instance, that certain kinds of speech enjoy no First

Amendment protection at all—e.g., incitement, true threats. See

Brandenburg v. Ohio, 395 U.S. 444 (1969) (incitement); Counterman v.

Colorado, 600 U.S. 66 (2023) (true threats). Other kinds of speech

enjoy constitutional protection when exhibited to adults but not

when exhibited to children—pornography being the most obvious

example. See Free Speech Coal., 606 U.S. at 496.

It may well be true that most expression on most social-media

platforms is indeed protected. But not all of it is, at least not with

respect to all users. So, for instance, imagine a platform that hosts

only unprotected speech—say, Incitement.com or TrueThreats.com. A law restricting children’s (or anyone’s) access to it

wouldn’t implicate the First Amendment at all and would trigger

only rational-basis review. A law restricting access to a site that

hosts speech that is protected for adults but not children—like pornography—would implicate the First Amendment, but a contentneutral restriction—like an age-verification requirement—would

be subject only to intermediate scrutiny. See Free Speech Coal., 606

U.S. at 495. Accordingly, even if HB3 “imposes the same onerous

restriction” on every platform, Dist. Ct. Order, June 3, 2025, at 43,

that restriction could well be subject to different levels of scrutiny,

potentially leading to different outcomes.

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44 Opinion of the Court 25-11881

It’s no answer to say, as both CCIA and the district court

have, that Florida has failed to demonstrate constitutional applications of HB3. See Oral Arg. 24:20–24:32 (“Under the First Amendment, it’s the state’s burden to prove that the law has more constitutional applications than unconstitutional applications.”); Dist. Ct.

Order, June 3, 2025, at 28. In a facial-challenge posture, we don’t

think it’s the state’s obligation to do so. Rather, the Supreme Court

seems to have put the “burden” squarely on the plaintiff: As one

“price” of its “decision to challenge the law[] as a whole,” the challenger must “carry its burden” of demonstrating that the invalid

applications substantially outweigh the valid ones. Moody, 603 U.S.

at 744.

One might interpose a “come on” objection at this point:

Surely, the argument would go, the overwhelming majority of

platforms to which HB3 applies overwhelmingly host protected

speech. And if, as CCIA insists, the law’s application to those websites would be unconstitutional, then the law’s unconstitutional applications would probably substantially outweigh the constitutional ones. But however intuitive, that sort of impressionistic

judgment won’t satisfy Moody’s stringent demands. Whether or

not it’s likely that the collective content of the platforms within

HB3’s ambit is overwhelmingly protected, CCIA bears the “burden” of demonstrating both (1) the universe of the law’s applications and (2) that the invalid applications substantially outweigh

the valid ones. See id.

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To discharge its facial-challenge burden, CCIA must provide

the reviewing court with the data—either hard facts or, at the very

least, sufficient briefing—necessary to conduct the Moody-required

comparative analysis. It hasn’t done so here. Indeed, CCIA’s briefing doesn’t mention even a single platform that isn’t one of its

members—let alone any nonmember platform that (in whole or in

part) hosts unprotected speech. In that respect, we think, CCIA

makes the same mistake that it and NetChoice made in Moody:

treating the case “more like [an] as-applied claim[] than like [a] facial one[].” Moody, 603 U.S. at 724; cf. NetChoice, LLC v. Bonta, 152

F.4th 1002, 1020 (9th Cir. 2025) (“[F]acial challengers cannot focus

on a law’s effect on their own platforms—they cannot even limit

the inquiry to the tech giants.”); NetChoice, LLC v. Yost, 180 F.4th

268, 312 (6th Cir. 2026) (Batchelder, J., concurring in the judgment)

(refraining from addressing NetChoice’s facial challenge “without

a developed record”).

We’ve learned the facial-challenge lesson the hard way. In

Moody, the Supreme Court, even while largely agreeing with our

merits analysis, faulted us for “confining [our] analysis” to “certain

heartland applications” instead of “address[ing] the full range of activities the law[] cover[ed].” Moody, 603 U.S. at 724; see NetChoice,

LLC v. Att’y Gen., Fla., 34 F.4th 1196 (11th Cir. 2022), abrogated by

Moody, 603 U.S. at 724. The Court went on to observe that even if

it were to attempt the facial analysis itself, it couldn’t “undertake

the needed inquiries” because the “parties ha[d] not briefed the critical issues [t]here, and the record [wa]s underdeveloped.” 603 U.S.

at 726. The Court therefore vacated and remanded our case (and

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46 Opinion of the Court 25-11881

its companion, NetChoice, L.L.C. v. Paxton, 49 F.4th 439 (5th Cir.

2022), abrogated by Moody, 603 U.S. at 724), “to consider the scope

of the laws’ applications, and weigh the unconstitutional as against

the constitutional ones.” Id. at 726. In turn, both we and our colleagues on the Fifth Circuit remanded our respective cases to the

district courts for further development of the issues pertinent to the

facial-challenge analysis. See Order, NetChoice, LLC v. Att’y Gen.,

State of Fla., No. 21-12355, (11th Cir. Aug. 16, 2024), Dkt. No. 178;

NetChoice, L.L.C. v. Paxton, 121 F.4th 494, 500 (5th Cir. 2024) (remanding to the district court to “develop a factual record” in response to Moody).

We are similarly stymied here. For the foregoing reasons,

we conclude that CCIA has failed to satisfy Moody because it hasn’t

adequately addressed the “full range” of HB3’s applications, nor

does any part of the record bear on the constitutionality of those

applications.

V

To recap: We hold (1) that CCIA has associational standing

to assert the First Amendment rights of its social-media platform

members; (2) that the district court didn’t abuse its discretion in

declining to abstain under Younger; and (3) that although HB3 implicates First Amendment interests, it likely passes constitutional

muster, as it is a content-neutral speech restriction that satisfies intermediate scrutiny. Finally, (4) we reject the facial challenge to

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HB3 on the ground that CCIA hasn’t carried its burden of demonstrating, as required by Moody, that the law’s unconstitutional applications substantially outweigh its valid applications.

Accordingly, we AFFIRM the district court’s determinations

that CCIA has associational standing and its decision not to abstain

under Younger, REVERSE the preliminary injunction with respect

to CCIA’s First Amendment claim as applied to its members,

VACATE the preliminary injunction with respect to CCIA’s facial

First Amendment challenge, and REMAND to the district court for

proceedings consistent with this opinion.

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NEWSOM, Circuit Judge, concurring:

Needless to say, I join the Court’s opinion in full. I write

separately to flag an issue that implicates CCIA’s as-applied challenge and that arises from (of all places) the Supreme Court’s recent

decision in West Virginia v. B.P.J. ex rel. Jackson, 146 S. Ct. 2356

(2026). There, in the course of holding that states may, consistently

with the Equal Protection Clause, limit participation in women’s

and girls’ sports to biological females, the Court sort of said—well

no, expressly said, in so many words—that “as-applied challenges

are not entertained when courts apply intermediate scrutiny or rational basis review.” Id. at 2377 n.5. Now, to be sure, for that proposition, the Court cited another equal-protection case. See id. (citing Tuan Anh Nguyen v. INS, 533 U.S. 53, 70 (2001)). But just as

surely, the Court emphasized that “the intermediate scrutiny

test . . . applies in a variety of contexts” and, for the stock formulation of the standard, it cited a prominent First Amendment decision. See id. at 2376 (citing Ward v. Rock Against Racism, 491 U.S.

781, 801 (1989)).

So, the question: Is B.P.J. properly read to foreclose as-applied challenges for all claims—including First Amendment

claims—that trigger intermediate scrutiny? The answer doesn’t so

much matter here—because, for reasons explained in the main

opinion, we’ve concluded that CCIA’s as-applied challenge fails

“on the merits,” so to speak, on the ground that HB3 survives a

proper intermediate-scrutiny analysis. See Maj. Op. at 31–40. But

if B.P.J. were read for all it might be worth, perhaps we could have

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2 Opinion of the Court 25-11881

gotten away with a much shorter opinion. And in any event, the

answer may very well matter in the next First Amendment case, in

which an as-applied plaintiff could otherwise show that a law

would fail intermediate scrutiny.

For reasons I’ll explain, I don’t think we (yet) have a clear

(enough) indication from the Supreme Court that it actually meant

in B.P.J. to cut off all as-applied challenges to laws reviewable under

an intermediate-scrutiny framework. But I suppose it might have.

In any event, I thought the question worth noting.

I

I should begin by briefly unpacking B.P.J. Again, the Supreme Court held there that a state doesn’t “violate[] the Equal

Protection Clause by maintaining female sports teams for biological females.” 146 S. Ct. at 2373. The Court began by articulating

its topline premises and conclusion: (1) Laws that segregate sports

teams based on sex are “sex-based classification[s] that trigger[] intermediate scrutiny”; (2) the sex-based classification that such laws

draw is “substantially related” to the states’ “important” interests

in “safety and competitive fairness”; and therefore, (3) “schools

may determine eligibility for women’s and girls’ sports based on

biological sex.” Id. at 2374–75. Straightforward enough.

The Court then shifted gears to address the plaintiffs’ “narrower” argument—namely, that even if the states’ interests in

safety and competitive fairness are “sufficient reasons to exclude

most biological males,” they “do not justify excluding [the] relatively small subclass of biological males . . . who identify as female

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and have taken puberty blockers or hormones.” Id. at 2375 (second

emphasis in original). The Court observed that the plaintiffs “characterize[d] their equal protection argument” in several “overlapping ways,” two of which are relevant for our purposes. Id. First,

the plaintiffs asserted “a lack of substantial relationship between

the laws’ biological-sex classification” and the states’ asserted interests. Id. And second, the plaintiffs’ framed their attack “as an asapplied challenge to the biological-sex classification.” Id. The

Court rejected both approaches.

With respect to the plaintiffs’ first tack, the Court emphasized that its “equal protection precedents allow general [sexbased] classifications like those” in the laws before it “so long as

there is at least a substantial relationship between the classification

and the State’s interests.” Id. at 2376. Reiterating its earlier conclusion that “‘[p]erfection in making the necessary classifications is

neither possible nor necessary,’” id. (quoting Mass. Bd. of Ret. v.

Murgia, 427 U.S. 307, 314 (1976)), the Court observed that “none of

[its] ‘gender-based classification equal protection cases have required that the statue under consideration must be capable of

achieving its ultimate objective in every instance,’” id. (quoting

Nguyen, 533 U.S. at 70). In further support of its explanation, the

Court looked beyond the equal-protection context to First Amendment cases, noting that “under the intermediate scrutiny test

that . . . applies in a variety of contexts,” the “‘validity of the regulation depends on the relation it bears to the overall problem the

government seeks to correct, not on the extent to which it furthers

the government’s interests in an individual case.’” Id. (quoting

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4 Opinion of the Court 25-11881

Ward, 491 U.S. at 801); see also id. (citing United States v. Edge Broadcasting Co., 509 U.S. 418, 430–31 (1993), for the proposition that the

intermediate-scrutiny analysis is focused on the relationship between the restriction and “the general problem” rather than “an

individual case”). Accordingly, the Court held that “States are not

required to conduct an individual-by-individual comparison of the

physical and athletic capabilities of all biological males in order to

satisfy intermediate scrutiny.” Id. at 2377.

The Supreme Court also rebuffed the plaintiffs’ second

framing of their position—namely, “as an as-applied equal protection argument.” Id. The Court found this second argument to be

“basically the same as the[ir] first” one. Id. As the Court described

the theory, the plaintiffs contended that even if the states’ sex-based

classification was “generally permissible,” it violated the Equal Protection Clause “as applied to those biological males such as [the

plaintiffs,] who identify as female and have taken puberty blockers

or hormones.” Id. The Court held, to the contrary, that “as long

as the relationship” between a state’s interest and the classification

“is sufficient as a general matter, the State is not constitutionally required to grant individualized exemptions to specific athletes or

subclasses.” Id. It was at this point in its analysis that the Court

dropped footnote five, in which it said the thing: Distinguishing its

earlier decisions in Caban v. Mohammed, 441 U.S. 380 (1979), and

Lehr v. Robertson, 463 U.S. 248 (1983), the Court emphasized that a

more recent decision had “clarified that as-applied challenges are not

entertained when courts apply intermediate scrutiny or rational basis reUSCA11 Case: 25-11881 Document: 94-1 Date Filed: 10/14/2026 Page: 52 of 59

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view.” B.P.J., 146 S. Ct. at 2377 n.5 (emphasis added) (citing Nguyen, 533 U.S. at 70). Back up above the line, the Court then rejected

“[t]he plaintiffs’ as-applied argument [as] in essence a backdoor argument for strict scrutiny, which requires a much tighter relationship between the State’s classification and the State’s asserted interests.” Id. at 2378.

II

So, what to make of B.P.J.—and in particular the (potentially) portentous footnote five? Did the Court there really mean to

foreclose all as-applied challenges to laws that (like HB3) trigger intermediate scrutiny, including those brought under the First

Amendment? Candidly, I’m not quite sure. I can see arguments

going both ways.

A

Here’s the case, as I see it, for what I’ll call the “broad” reading. First, and (by far) most significant, is the starkness of the

Court’s chosen language. Once again, as relevant here: “[A]s-applied challenges are not entertained when courts apply intermediate scrutiny.” Id. at 2377 n.5. Second, and in a similar vein, the

Court referred to the intermediate-scrutiny standard generally, emphasizing that it “applies in a variety of contexts.” Id. Third, as

already noted, when explaining what it took to be the proper application of that “test,” the Court looked, not to an equal-protection

case, but rather to a pair of First Amendment decisions: “[T]he ‘validity of the regulation depends on the relation it bears to the overall problem the government seeks to correct, not on the extent to

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6 Opinion of the Court 25-11881

which it furthers the government’s interests in an individual case.’”

Id. at 2376 (quoting Ward, 491 U.S. at 801, and citing Edge Broadcasting, 509 U.S. at 430–31).

Finally, and perhaps most fundamentally, the logic underlying the B.P.J. Court’s ultimate rejection of the plaintiffs’ contention

would seem to apply just as surely to First Amendment cases as to

equal-protection cases. The “as-applied argument” that the plaintiffs there were making, the Court warned, was “in essence a backdoor argument for strict scrutiny, which requires a much tighter

relationship between the State’s classification and the State’s asserted interest.” Id. at 2378; see also Adams v. Sch. Bd. of St. Johns

Cnty., 3 F.4th 1299, 1329 (11th Cir. 2021) (Pryor, C.J., dissenting)

(requiring the government to prove tailoring “as to each plaintiff

who brings an as-applied challenge would disregard intermediate

scrutiny by demanding a perfect fit between the sex-based classification and the government interest at issue.”), rev’d en banc, 57

F.4th 791 (11th Cir. 2022). That critique is at least arguably generalizable across contexts because, by their very nature, as-applied

challenges exist in some tension with less rigorous forms of scrutiny. On the one hand, plaintiff-by-plaintiff analysis is of course the

very sine qua non of as-applied litigation. On the other, intermediate scrutiny (to say nothing of rational-basis review) “affords the

Government latitude in designing a regulatory solution,” Turner

Broad. Sys., Inc. v. FCC, 520 U.S. 180, 213 (1997), and, famously, does

not require a perfect fit between ends and means, see Free Speech

Coal. v. Paxton, 606 U.S. 461, 471 (2025). But—and this is the

point—that “latitude” will essentially evanesce if the government

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has to prove that its interests apply to each and every successive

individual who happens to file suit.

It’s perhaps particularly easy to see that dynamic at work in

a context like sex-segregated sports, where an insistence that the

government repeatedly justify wholesale distinctions case by case

at the retail level would risk swallowing those distinctions whole.

Though biological men are on average more athletically capable

than women, “[n]ot every biological male athlete is bigger, stronger,

faster, or otherwise more athletically able than every biological female athlete.” B.P.J., 146 S. Ct. at 2376 (emphases in original). But

if every less capable male athlete could seek an as-applied exemption from general rules requiring sex-segregated sports, the distinction between men’s and women’s sports would die a death of a

thousand cuts. The same phenomenon, though, may well exist in

the First Amendment context. Imagine, for instance, a contentneutral ordinance prohibiting large late-night gatherings in a suburban park. On its face, the restriction would probably survive intermediate scrutiny as a sufficiently narrowly tailored means of

preventing after-dark disruptions. Cf. Ward, 491 U.S. at 796. But

as-applied challenges introduce a wrinkle: Must the city repeatedly

prove—in every successive case—that each prospective gathering

is likely to be so loud that it would disturb neighborhood peace? If

it turns out that the city can’t always do so, then the as-applied exemptions will make Swiss cheese out of an otherwise facially valid

noise-prevention ordinance.

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Bottom line: It may just be that if “the intermediate scrutiny

test that the Court applies in a variety of contexts”—equal protection, free-speech, etc.—is indeed focused on the relationship between the law at issue and “‘the overall problem the government

seeks to correct, not on the extent to which it furthers the government’s interests in an individual case,’” B.P.J., 146 S. Ct. at 2376

(quoting Ward, 491 U.S. at 801), then it’s a test built largely—if not

entirely—for facial challenges.

B

There is, though, another side to the story. Here’s the case,

as I see it, for the “narrow” reading of B.P.J. First, and most obviously, there’s the fact that the Court was deciding an equal-protection case. And at times, it seemed to frame its analysis specifically

in those terms. See, e.g., id. at 2376 (“[T]his Court’s equal protection precedents allow general classifications like those made in the

[laws before us] so long as there is at least a substantial relationship

between the classification and the State’s interests.”); id. (“[N]one

of this Court’s ‘gender-based classification equal protection cases

have required that the statute under consideration must be capable

of achieving its ultimate objective in every instance.’”); id. at 2377

(“Intermediate scrutiny permits a sex-based classification that, as

here, is ‘not invidious, but rather realistically reflects the fact that

the sexes are not similarly situated in certain circumstances.’”).1

1 Indeed, there are suggestions in the Court’s opinion that it might have meant

to focus its analysis even more narrowly on equal-protection cases that arise in

the sports context. See, e.g., B.P.J., 146 S. Ct. at 2376 (“the sports context USCA11 Case: 25-11881 Document: 94-1 Date Filed: 10/14/2026 Page: 56 of 59

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Second, although the Court cited its First Amendment decisions in Ward and Edge Broadcasting for support, it did so only in

addressing the first of the plaintiffs’ two “narrower” arguments—

namely, to say that the plaintiffs’ just misunderstood the level of

generality at which a proper intermediate-scrutiny analysis should

be conducted. See id. at 2376. The Court didn’t (at least explicitly)

circle back to those cases in the course of rejecting what it called

the plaintiffs’ second, “as-applied” argument. See id. at 2377.

One final reason for circumspection: Recall that, in support

of what is for our purposes the key statement—that “as-applied

challenges are not entertained when courts apply intermediate

scrutiny,” the Court cited its earlier decision in Nguyen. Id. at 2377

n.5. Not only is Nguyen an equal-protection case, but I’m not sure

I read it to say everything that the Court in B.P.J. seemed to attribute

to it. I certainly don’t find there anything that purports to expressly

foreclose as-applied challenges for all claims that trigger intermediate scrutiny.

III

So, what here? This case, of course, presents an as-applied

challenge to a content-neutral speech regulation that triggers intermediate scrutiny. See Maj. Op. at 31. Accordingly, if B.P.J.’s rule is

indeed generalizable—if, in fact, “as-applied challenges are not entertained when courts apply intermediate scrutiny or rational basis

is . . . crucial”); id. at 2377 (“the distinctive sports context”); id. at 2378

(“[e]specially in the sports context”); id. (“[p]articularly in the sports context”). USCA11 Case: 25-11881 Document: 94-1 Date Filed: 10/14/2026 Page: 57 of 59

10 Opinion of the Court 25-11881

review,” full stop, 146 S. Ct. at 2356 n.5—then CCIA’s claim failed

the moment that we concluded that intermediate scrutiny applied.

I’m reluctant to go there—at least yet.

First, there’s precedent and consistent practice—a lot of it.

We have long (and seemingly without qualm) entertained as-applied First Amendment challenges to laws that trigger intermediate

scrutiny. See, e.g., United States v. Romain, --- F.4th ----, 2026 WL

2250001, at *4 (11th Cir. Aug. 5, 2026); Moms for Liberty v. Brevard

Pub. Schs., 118 F.4th 1324, 1336–37 (11th Cir. 2024); Fort Lauderdale

Food Not Bombs v. City of Fort Lauderdale, 11 F.4th 1266, 1291–92

(11th Cir. 2021); cf. Ranch House, Inc. v. Amerson, 238 F.3d 1273,

1284–85 (11th Cir. 2001) (remanding to the district court to consider an as-applied First Amendment challenge under intermediate

scrutiny). As have our sister circuits, in cases too numerous to

count. See, e.g., Green v. U.S. Dep’t of Just., 54 F.4th 738, 745–46

(D.C. Cir. 2024); Brokamp v. James, 66 F.4th 374, 397–403 (2d Cir.

2023); 360 Virtual Drone Servs. LLC v. Ritter, 102 F.4th 263, 278–80

(4th Cir. 2024); Hines v. Pardue, 117 F.4th 769, 779–85 (5th Cir.

2024); People for the Ethical Treatment of Animals, Inc. v. Reynolds, 173

F.4th 959, 966–69 (8th Cir. 2026); Project Veritas v. Schmidt, 125 F.4th

929, 952–60 (9th Cir. 2025) (en banc). I’m hesitant to conclude that

the B.P.J. Court abrogated all of that law and convention without

a clearer indication that it really meant to extend its reasoning to

the First Amendment context. And I’d be doubly hesitant given

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that, just last year, in TikTok Inc. v. Garland, the Supreme Court itself entertained an as-applied First Amendment challenge while applying intermediate scrutiny. See 604 U.S. 56, 74–80 (2025).

Second, there’s Moody v. NetChoice, LLC, 603 U.S. 707 (2024).

That decision, too, it seems to me, stands in some tension with a

prohibition on as-applied First Amendment challenges to laws that

trigger intermediate scrutiny. The Supreme Court was crystal

clear there: As-applied challenges are the rule, and facial challenges

the rare, “hard to win” exception. Id. at 723. And for good reason.

Facial challenges “‘threaten to short circuit the democratic process’

by preventing duly enacted laws from being implemented in constitutional ways.” Id. (quoting Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 451 (2008)). But if the Supreme Court’s

point in Moody was to make as-applied challenges the new normal

in First Amendment litigation, it seems strange that the same

Court—the same nine people—would have then turned around

less than two years later and nixed as-applied challenges for the

whole range of First Amendment claims that call for intermediate

scrutiny.2 And I don’t think it makes me a result-oriented hack to

worry that a combination of Moody’s new (or newly emphasized)

2 See, e.g., Ward, 491 U.S. at 791 (content-neutral, time, place, or manner restrictions); United States v. O’Brien, 391 U.S. 367, 376 (1968) (expressive conduct); Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 562–

65 (1980) (commercial speech); City of Renton v. Playtime Theatres, Inc., 475 U.S.

41, 47–49 (1986) (regulation of secondary effects); Turner Broad., 520 U.S. at

186 (content-neutral regulation of the airwaves); Paxton, 606 U.S. at 478 (regulations that only incidentally burden protected speech).

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limitations on facial First Amendment challenges and a prohibition

on as-applied challenges in a host of contexts would lead to, well, a

lot less protection for traditionally safeguarded speech.

* * *

In the end, I’ll confess that I’m not quite sure what to make

of B.P.J.’s statement casting doubt on the viability of as-applied

challenges to laws that trigger less than strict scrutiny. But before

exporting it to the First Amendment context, I think it’s wise to

await a clearer signal from the Supreme Court.