Amicus Curiae Brief — Students Engaged in Advancing Texas, et al., Applicants v. Ken Paxton, Attorney General of Texas
Supreme Court briefJun 18, 2026
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Nos. 25A1389, 25A1390
In the Supreme Court of the United States
________________
STUDENTS ENGAGED IN ADVANCING TEXAS, ET AL.,
Applicants,
v.
KEN PAXTON, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF TEXAS,
________________
Respondent.
COMPUTER & COMMUNICATIONS INDUSTRY ASSOCIATION,
Applicant,
v.
KEN PAXTON, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF TEXAS,
________________
Respondent.
On Applications to the Honorable Samuel A. Alito, Jr.,
Associate Justice of the Supreme Court of the United States and
Circuit Justice for the Fifth Circuit
________________
BRIEF FOR AMICI CURIAE NETCHOICE, THE CATO INSTITUTE, CHAMBER OF PROGRESS,
CLAY CALVERT, THE COMPETITIVE ENTERPRISE INSTITUTE, CONSUMER CHOICE CENTER,
THE DEVELOPERS ALLIANCE, THE FOUNDATION FOR INDIVIDUAL RIGHTS AND EXPRESSION,
THE INFORMATION TECHNOLOGY AND INNOVATION FOUNDATION, THE JAMES MADISON
INSTITUTE, PARKVIEW INSTITUTE, THE PELICAN INSTITUTE FOR PUBLIC POLICY,
REASON FOUNDATION, TAXPAYERS PROTECTION ALLIANCE, TECHFREEDOM, AND
WASHINGTON LEGAL FOUNDATION IN SUPPORT OF APPLICANTS AND VACATUR
________________
Christopher J. Marchese
Paul D. Taske
NETCHOICE
1401 K St. NW, Suite 502
Washington, DC 20005
Counsel for Amicus Curiae NetChoice
Cory L. Andrews
WASHINGTON LEGAL FOUNDATION
2009 Massachusetts Ave. NW
Washington, DC 20036
Counsel for Amicus Curiae
Washington Legal Foundation
Steven P. Lehotsky
Counsel of Record
Jeremy Evan Maltz
LEHOTSKY KELLER COHN LLP
200 Massachusetts Ave. NW,
Suite 700
Washington, DC 20001
(512) 693-8350
steve@lkcfirm.com
Counsel for Amici Curiae
TABLE OF CONTENTS
Table of Authorities ....................................................................................................... ii
Interest of Amici Curiae ................................................................................................ 1
Introduction and Summary of the Argument ............................................................... 8
Argument ....................................................................................................................... 9
I.
App stores facilitate access to fully protected, non-commercial speech. .............. 9
A. Mobile apps are how many Americans access the internet, which is
full of fully protected speech, information, and tools to create yet more
speech. .............................................................................................................. 9
B. By providing access to apps, app stores help their users access the
internet’s fully protected speech. .................................................................. 13
C. Texas’s App Store Accountability Act uses content-based coverage
criteria and was animated by a content-based and censorial purpose........ 14
II. The Fifth Circuit’s conclusion that app stores facilitate access to solely
commercial speech risks erroneously rendering much of the internet
“commercial speech.” ............................................................................................ 15
III. The Fifth Circuit erred by short-circuiting the appellate process to stay the
district court’s preliminary injunction and upset the decades-old status
quo. ........................................................................................................................ 21
Conclusion .................................................................................................................... 23
i
TABLE OF AUTHORITIES
Page(s)
Cases
303 Creative LLC v. Elenis,
600 U.S. 570 (2023) ...................................................................................... 9, 16, 17
Barr v. Am. Ass’n of Pol. Consultants, Inc.,
591 U.S. 610 (2020) ................................................................................................ 14
Bartnicki v. Vopper,
532 U.S. 514 (2001) ................................................................................................ 12
Bd. of Educ. v. Pico,
457 U.S. 853 (1982) ................................................................................................ 13
Bd. of Trustees of State Univ. of N.Y. v. Fox,
492 U.S. 469 (1989) ................................................................................................ 17
Bolger v. Youngs Drug Prods. Corp.,
463 U.S. 60 (1983) .................................................................................................. 16
Brown v. Ent. Merchs. Ass’n,
564 U.S. 786 (2011) .................................................................................... 14, 16, 22
Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y.,
447 U.S. 557 (1980) ................................................................................................ 15
Citizens United v. FEC,
558 U.S. 310 (2010) .................................................................................... 12, 17, 18
City of Cincinnati v. Discovery Network, Inc.,
507 U.S. 410 (1993) ................................................................................................ 17
City of Lakewood v. Plain Dealer Publ’g Co.,
486 U.S. 750 (1988) ................................................................................................ 16
Dayton Bd. of Educ. v. Brinkman,
439 U.S. 1358 (1978) ................................................................................................ 9
Fla. Bar v. Went For It, Inc.,
515 U.S. 618 (1995) ................................................................................................ 18
Free Speech Coal., Inc. v. Paxton,
606 U.S. 461 (2025) ................................................................................................ 14
ii
Interstate Circuit, Inc. v. City of Dallas,
390 U.S. 676 (1968) ................................................................................................ 13
Joseph Burstyn, Inc. v. Wilson,
343 U.S. 495 (1952) ................................................................................................ 13
Kaplan v. California,
413 U.S. 115 (1973) ................................................................................................ 10
Lamont v. Postmaster Gen.,
381 U.S. 301 (1965) ................................................................................................ 13
Lovell v. City of Griffin,
303 U.S. 444 (1938) ................................................................................................ 12
Manhattan Cmty. Access Corp. v. Halleck,
587 U.S. 802 (2019) ................................................................................................ 13
Minneapolis Star & Trib. Co. v. Minn. Comm’r of Revenue,
460 U.S. 575 (1983) .......................................................................................... 12, 15
Moody v. NetChoice, LLC,
603 U.S. 707 (2024) .......................................................................................... 11, 23
NetChoice, LLC v. Fitch,
145 S. Ct. 2658 (2025) ........................................................................................... 22
NetChoice, LLC v. Paxton,
142 S. Ct. 1715 (2022) ............................................................................................ 22
Packingham v. North Carolina,
582 U.S. 98 (2017) .............................................................................................. 9, 10
Reed v. Town of Gilbert,
576 U.S. 155 (2015) .......................................................................................... 14, 15
Reno v. ACLU,
521 U.S. 844 (1997) ...................................................................................... 9, 10, 13
Riley v. California,
573 U.S. 373 (2014) ................................................................................................ 11
Riley v. Nat’l Fed’n of the Blind of N.C., Inc.,
487 U.S. 781 (1988) .......................................................................................... 17, 18
Smith v. California,
361 U.S. 147 (1959) ................................................................................................ 13
iii
Sorrell v. IMS Health Inc.,
564 U.S. 552 (2011) .......................................................................................... 11, 15
Turner Broad. Sys., Inc. v. FCC,
512 U.S. 622 (1994) .......................................................................................... 13, 15
United States v. United Foods, Inc.,
533 U.S. 405 (2001) ................................................................................ 9, 15, 16, 17
Van Buren v. United States,
593 U.S. 374 (2021) ................................................................................................ 20
Statutes and Regulations
16 C.F.R. § 312.10 ........................................................................................................ 20
Tex. Bus. & Com. Code § 121.022(h) ........................................................................... 14
Tex. Bus. & Com. Code § 541.101(a)(1)....................................................................... 19
Tex. Bus. & Com. Code § 541.102(a) ........................................................................... 20
Other Authorities
ACT, Fifth Circuit Lays an Egg on Age Verification,
https://perma.cc/TU3G-M2GX ............................................................................... 14
Apple App Store, Dictionnaire de l’Académie française,
https://perma.cc/WB3J-EQK4 ................................................................................ 11
Apple App Store, Top Charts: Weather, https://perma.cc/253Y-YYY6 ...................... 12
The Associated Press, AP Privacy Policy (Nov. 5, 2025),
https://perma.cc/FVH2-DCTC ................................................................................ 20
Catholic Charities USA, Privacy Policy (Oct. 31, 2023),
https://perma.cc/8R8D-EMA5 ................................................................................ 19
Google Play Store, Search: “Measurement Conversion,”
https://perma.cc/4SZ4-FUC3 .................................................................................. 12
Mozilla Support, Create Desktop Shortcut to a Website (Aug. 3, 2025),
https://perma.cc/U76E-34SL .................................................................................. 10
NTIA, Data Explorer, https://perma.cc/SM6B-SPZT ................................................. 11
PBS, PBS Privacy Policy (Apr. 11, 2023), https://perma.cc/Q9DE-N3N3 ................. 20
iv
Pet.’s Reply Br., Brown v. Ent. Merchs. Ass’n, 2010 WL 4034925 (U.S.
Oct. 8, 2010) ............................................................................................................ 16
Regulation 2016/679 of the European Parliament and of the Council of
27 April 2016, arts. 12-14, 2016 O.J. (L 119) 1 ..................................................... 20
Thomas M. Cooley, A Treatise on the Law of Torts (Chicago, Callaghan
& Co. 1879) ............................................................................................................. 12
Tushar Thakar, Mobile vs. Desktop Statistics 2026: Shocking Trends,
TechRT (Jan. 8, 2026), https://perma.cc/SB9L-E668 ............................................ 11
v
INTEREST OF AMICI CURIAE
Amici and their members represent a diverse coalition with a substantial shared
interest in the pending applications.1 Amici and their members both develop mobile
apps and use such apps to reach their audiences. Amici likewise have extensive
experience litigating—and participating as amici in cases involving—governmental
restrictions on access to online speech.
Here, the Fifth Circuit motions panel permitted Respondent Texas Attorney
General to enforce a law that transformed internet access in Texas overnight, and
could permit similar transformation nationwide. That outcome alone warrants
amici’s interest and justifies this Court’s review. Furthermore, the Fifth Circuit’s
rationale—that app stores facilitate access to solely “commercial speech,”
CCIA.App’x.4a—risks broad ramifications for amici and their members, if left
uncorrected.
NetChoice is a national trade association of e-commerce and online businesses
that share the goal of promoting convenience, choice, and commerce on the internet.
For over two decades, NetChoice has worked to increase consumer access and options
via the internet, while minimizing burdens on small businesses that are making the
internet more accessible and useful. NetChoice has opposed laws that require app
stores to verify the ages of their users and process parental consent for minors to
1 Pursuant to Supreme Court Rule 37.6, amici curiae state that no counsel for any
party authored this brief in whole or in part and no entity or person, aside from amici
curiae, their members, or their counsel, made any monetary contribution intended to
fund the preparation or submission of this brief.
1
access the fully protected speech those app stores provide. E.g., NetChoice, The App
Store “Accountability” Act Takes Power From Parents, https://perma.cc/MKJ6VD7W; Patrick Hedger, NetChoice Testifies Against ID for Apps Mandate in Virginia,
NetChoice (Feb. 12, 2026), https://perma.cc/8C4Y-C2D8.
The Cato Institute is a nonpartisan public policy research foundation founded
in 1977 and dedicated to advancing the principles of individual liberty, free markets,
and limited government. Toward that end, Cato’s Robert A. Levy Center for
Constitutional Studies publishes books and studies about legal issues, conducts
conferences, produces the Cato Supreme Court Review, and files amicus briefs.
Chamber of Progress is a tech-industry coalition that seeks to protect Internet
freedom and free speech, promote innovation and economic growth, and empower
technology customers and users. In keeping with that mission, Chamber of Progress
believes that a legal framework that permits the free exchange of ideas will benefit
society at large. Chamber of Progress’s work is supported by its corporate partners,
but its partners do not sit on its board of directors and do not have a vote on, or veto
over, its positions. Chamber of Progress does not speak for individual partner
companies and remains true to its stated principles when its partners disagree.2
Clay Calvert is a nonresident senior fellow at the American Enterprise
Institute, where he writes about technology and free speech issues, and a professor
2 A list of Chamber of Progress’s partners can be found at https://perma.cc/DW25-
MSRP.
2
emeritus at the University of Florida, where he taught media law. He has published
extensively on age-verification and parental-consent regulations.
The Competitive Enterprise Institute (“CEI”) is a nonprofit educational and
research organization headquartered in Washington, D.C., dedicated to promoting
the principles of free markets and limited government. Since its founding in 1984,
CEI has focused on raising public understanding of the problems of overregulation
through policy analysis, commentary, and litigation. CEI pursues public-interest
litigation to ensure that federal agencies and states act within the constraints of the
U.S. Constitution. CEI’s mission is to develop and advocate for policies that advance
the right to freedom, fairness, property, and prosperity for Americans.
The Consumer Choice Center (“CCC”) is an independent, nonpartisan
consumer advocacy organization founded in 2017. CCC promotes policies that expand
consumer choice, encourage innovation, and increase access to affordable goods and
services. It advocates for evidence-based, technology-neutral, and pro-growth
regulatory frameworks that advance consumer welfare. CCC works with consumers
and partner organizations across North America, Europe, and other regions, and
regularly provides analysis and commentary on regulatory, legislative, and legal
issues affecting consumers. CCC has participated in public policy debates before
legislative bodies, administrative agencies, and courts on matters concerning
consumer choice, innovation, and economic liberty.
The Developers Alliance advocates on behalf of developers, the companies
they lead, and the industries that depend on them. We help policymakers and
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stakeholders understand the specific needs of the developer workforce and advocate
for policies that responsibly advance the broader tech sector.
The Foundation for Individual Rights and Expression (“FIRE”) is a
nonpartisan nonprofit that defends the rights of all Americans to free speech and free
thought—the essential qualities of liberty. Since 1999, FIRE has successfully
defended these rights nationwide without regard to speakers’ views, through public
advocacy, strategic litigation, and participation as amicus curiae in cases involving
expressive rights, including in the digital realm. See, e.g., NetChoice, LLC v. Bonta,
170 F.4th 744 (9th Cir. 2026); Volokh v. James, 148 F.4th 71 (2d Cir. 2025), certifying
questions to N.Y. Ct. App., 267 N.E.3d 1245 (N.Y. 2025) (accepting certified question);
see also Br. for FIRE et al. as Amici Curiae Supp. Pet’r, Anthropic PBC v. U.S. Dep’t
of War (D.C. Cir. filed Apr. 22, 2026) (No. 26-1049); Br. for FIRE et al. as Amici Curiae
Supp. Pet’rs, TikTok Inc. v. Garland, 604 U.S. 56 (2025) (No. 24-656); Br. for FIRE as
Amicus Curiae Supp. Resp’ts, Moody v. NetChoice, LLC, 603 U.S. 707 (2024) (Nos.
22-277, 22-555).
The Information Technology and Innovation Foundation (“ITIF”) is an
independent 501(c)(3) nonprofit, nonpartisan research and educational institute
founded in 2006 that has been recognized repeatedly as the world’s leading think
tank for science and technology policy. ITIF’s mission is to formulate, evaluate, and
promote policy solutions that accelerate innovation and boost productivity to spur
growth, opportunity, and progress. ITIF’s goal is to provide policymakers around the
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world with high-quality information, analysis, and actionable recommendations they
can trust.
The James Madison Institute is a non-profit, non-partisan research
organization based in Tallahassee, Florida, whose north star is to advance the
principles of free markets, limited government, and economic liberty. For close to 40
years, we have championed these principles in Florida and beyond.
Parkview Institute is a non-partisan policy think tank eager to turn a great
economic future into a spectacular one by correcting mistaken notions about markets
and policy that continue to stalk both sides of the ideological aisle.
The Pelican Institute for Public Policy is Louisiana’s free market think tank
and works to ensure that every Louisianan—and every American—has the
opportunity to flourish. The Pelican Institute’s mission is to research and develop
policy solutions to address the most significant barriers to opportunity in Louisiana
and across the United States. We educate the public about the benefits of individual
liberty and free enterprise, turn great ideas into powerful policy solutions that make
a meaningful difference in people’s lives, and fight to ensure the rights of working
families are protected in state and federal courts.
Reason Foundation (“Reason”) is a nonpartisan and nonprofit public policy
think tank, founded in 1978. Reason’s mission is to promote free markets, individual
liberty, equality of rights, and the rule of law. Reason advances its mission by
publishing the critically acclaimed Reason magazine, as well as commentary on its
websites, www.reason.com and www.reason.org. To further Reason’s commitment to
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“Free Minds and Free Markets,” Reason has participated as amicus curiae in
numerous cases raising significant legal and constitutional issues, including cases
implicating free expression and digital apps. Reason also has an interest in this case
as a speaker because its most important avenue for distributing its speech and
content is via an app it makes available on all app stores.
The Taxpayers Protection Alliance (“TPA”) is a nonprofit 501(c)(4)
educational group with a focus on defending free enterprise and championing reduced
taxation and limited government principles. Founded in 2011, TPA furthers its
mission through the preparation and dissemination of articles, analyses, and opinion
pieces, and through broadcast television, social media, video, and congressional
testimony. To advance its mission, TPA—and its affiliated 501(c)(3) organization, the
Taxpayers Protection Alliance Foundation—has participated in cases in front of the
Court as amicus curiae across a range of issues, including government regulation of
electronic tobacco products, see FDA v. Wages and White Lion Invs., LLC, 604 U.S.
542, 565 n.3 (2025), and the First Amendment speech and association rights of social
media platforms infringed by two state content moderation laws, see Moody v.
NetChoice, LLC, 603 U.S. 707 (2024). TPA fights tirelessly for the rights of taxpayers
and for consumers struggling to navigate a marketplace made increasingly complex
and less free by government interference. Millions of Americans experience the
internet as a revolutionary way to speak their truth and access the speech of others,
which must be allowed without their First Amendment rights being unduly burdened.
Users’ right to use apps to access constitutionally protected speech, including
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anonymously, is in danger due to the Texas App Store Accountability Act, which
threatens the very core of online free speech.
TechFreedom is a nonprofit, nonpartisan think tank based in Washington, D.C.
It is dedicated to promoting technological progress that improves the human
condition. It opposes ever-evolving government efforts to meddle in online speech.
See, e.g., Br. of TechFreedom, NetChoice v. Jones, No. 26-1252 (4th Cir., May 22, 2026)
(opposing Virginia social media screentime cap); Br. of TechFreedom, NetChoice, LLC
v. Griffin, No. 25-1889 (8th Cir., Jan. 28, 2026) (opposing Arkansas social media ageverification law); Br. of TechFreedom, Bonta v. NetChoice, LLC, No. 23-2969 (9th Cir.,
Feb. 14, 2024) (opposing California social media “design” code).
Washington Legal Foundation is a nonprofit, public-interest law firm and
policy center with supporters nationwide. WLF promotes free enterprise, individual
rights, limited government, and the rule of law. To that end, it often appears as
amicus curiae in important First Amendment cases to oppose government efforts to
compel speech. E.g., Moody v. NetChoice, LLC, 603 U.S. 707 (2024).
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INTRODUCTION AND SUMMARY OF THE ARGUMENT
Texas has done something unprecedented. It has attempted to age-gate internet
use. And it has deputized private app-store operators as government-mandated
gatekeepers to the internet’s wealth of protected speech, information, and
speech-facilitating tools. A Fifth Circuit motions panel short-circuited the normal
appellate process to permit Respondent to immediately enforce Texas’s revolutionary
law.3 In explaining why, the Fifth Circuit declared seemingly much of the internet to
be “commercial speech” that government can regulate so long as it meets the court’s
lax application of intermediate scrutiny. The Fifth Circuit’s decision is exceedingly
important—and demonstrably wrong. The stay should be vacated. Amici submit this
brief to make three points.
First, app stores engage in—and provide their users access to—incredible
amounts of fully protected, non-commercial speech. For many Americans, mobile
apps are now the primary means to access the internet’s wealth of protected
expression, information, and speech-creating tools. Among that protected expression
are mobile apps provided by amici and their members. Texas’s App Store
Accountability Act (“Act”) regulates those app stores with a law that is content-based
both on its face and in its purpose. The Act thus triggers, and fails, strict scrutiny.
Second, the Fifth Circuit’s contrary holding—that app stores and the apps on
them engage in nothing more than “commercial speech”—is wrong as a matter of law
3 Although Judge Haynes concurred in granting the stay, she did not join in the
panel’s rationale. So references to the “Fifth Circuit’s” or “panel’s” rationale refer only
to the panel majority’s opinion.
8
and fact. Offering access to expressive, informative, and speech-facilitating apps does
far more than “propose a commercial transaction.” United States v. United Foods,
Inc., 533 U.S. 405, 409 (2001). The panel’s reasoning risks recasting much of the
internet as “commercial speech” stripped of the First Amendment’s full protections.
Third, the Fifth Circuit should not have rendered this hugely consequential
decision outside of the normal appellate procedure. The stay has massively disrupted
the “status quo” that prevailed before Texas age-gated internet use. Dayton Bd. of
Educ. v. Brinkman, 439 U.S. 1358, 1359 (1978) (Rehnquist, J., in chambers).
This Court should grant the Applications.
ARGUMENT
I.
App stores facilitate access to fully protected, non-commercial speech.
Texas attempts to restrict access to mobile apps, which are the primary way
many Americans access the internet’s wealth of fully protected speech, information,
and speech-facilitating tools. Texas has done so with a facially content-based law
animated by a content-based and censorial purpose. The Act’s unprecedented speech
burdens thus trigger strict First Amendment scrutiny.
A. Mobile apps are how many Americans access the internet, which is
full of fully protected speech, information, and tools to create yet
more speech.
The internet offers people “unlimited, low-cost capacity for communication of all
kinds.” Packingham v. North Carolina, 582 U.S. 98, 104 (2017) (quoting Reno v.
ACLU, 521 U.S. 844, 870 (1997)). All manner of speech, “from ‘pictures, films,
paintings, drawings,’ . . . to ‘oral utterance and the printed word’[] qualify for the
First Amendment’s protections . . . [when] conveyed over the Internet.” 303
9
Creative LLC v. Elenis, 600 U.S. 570, 587 (2023) (quoting Kaplan v. California, 413
U.S. 115, 119-20 (1973)).
Furthermore, the internet has been a democratizing force on information access,
where people may seek out diverse sources and underrepresented voices—not just
incumbent media giants. Online services like apps “allow a person with an Internet
connection to ‘become a town crier with a voice that resonates farther than it could
from any soapbox.’” Packingham, 582 U.S. at 107 (quoting Reno, 521 U.S. at 870). As
a result, the internet contains everything from high literature to fan fiction; sports
highlights to academic research; cutting-edge news to age-old philosophical debates;
amateur short-form videos to cinematic classics; crossword puzzles to 3D games; and
more information than any library has ever held—or could ever hold.
Over time, the way that people access the internet has changed, from bulletin
boards on modems to browsers on desktop computers to mobile apps on smartphones
and tablets. Instead of typing web addresses into a web browser, users can download
an app from an app store that provides access to the content and tools available on
web-based services.4
For many people, therefore, mobile apps are the internet. This Court observed as
much over a decade ago:
There are apps for Democratic Party news and Republican Party news; apps
for alcohol, drug, and gambling addictions; apps for sharing prayer requests;
apps for tracking pregnancy symptoms; apps for planning your budget; apps
4 In this way, apps are similar to the desktop shortcuts that browsers allow users
to create. E.g., Mozilla Support, Create Desktop Shortcut to a Website (Aug. 3, 2025),
https://perma.cc/U76E-34SL (“You can use Firefox to create a shortcut on your
computer’s desktop to a page you’ve visited.”).
10
for every conceivable hobby or pastime . . . . The average smart phone user
has installed 33 apps.
Riley v. California, 573 U.S. 373, 396 (2014). Today, more Americans report
smartphone use than desktop and laptop use. See NTIA, Data Explorer,
https://perma.cc/SM6B-SPZT; Tushar Thakar, Mobile vs.
Desktop Statistics
2026: Shocking Trends, TechRT (Jan. 8, 2026), https://perma.cc/SB9L-E668 (“As of
mid‑2025, roughly 62-64% of web traffic worldwide comes from mobile devices.”).
These apps offer their users services that run the gamut of expressive activities.
And the apps themselves come from all manner of publishers, from the Louis XIII-era
Académie Française (established in 1635 to ensure common standards for the French
language) to the latest start-up mobile developer.5 Put otherwise, app stores have
helped tear down barriers to entry, providing more people with access to more
information from more (and more diverse) sources.
Many apps are full of expressive content in their own right. That includes movies,
books, games, journalism, and myriad other forms of expressive content. It also
includes apps that “engage[] in expression” by “display[ing],” “compiling, and
curating” protected user-generated speech. Moody v. NetChoice, LLC, 603 U.S. 707,
716-17, 731 (2024).
Yet more apps provide their users with access to “information,” which is likewise
protected by the First Amendment. Sorrell v. IMS Health Inc., 564 U.S. 552, 570
(2011). This includes anything from weather forecasts to measurement conversion
5 Apple App Store, Dictionnaire de l’Académie française, https://perma.cc/WB3J-
EQK4.
11
apps.6 It also includes mobile web browsers, which are themselves apps that compete
for users based on the features they offer. As this Court has recognized, “if the act
of . . . ‘publishing’ information does not constitute speech, it is hard to imagine what
does fall within that category.” Bartnicki v. Vopper, 532 U.S. 514, 527 (2001) (citation
modified). This holding flows from the Court’s longstanding observation that the First
Amendment’s freedoms of speech and press exist, in part, to ensure the free flow of
information. Consequently, “[t]he press in its historic connotation comprehends every
sort of publication which affords a vehicle of information and opinion.” Lovell v. City
of Griffin, 303 U.S. 444, 452 (1938); see Thomas M. Cooley, A Treatise on the Law of
Torts 219 (Chicago, Callaghan & Co. 1879) (“The privilege of the press is not confined
to those who publish newspapers and other serials, but extends to all who make use
of it to place information before the public.” (emphasis added)).
Finally, apps also provide means for their users to engage in their own
expression. For instance, people can use Procreate to make digital art or BandLab to
create music. Such tools likewise receive the First Amendment’s protections, lest the
government be able to suppress speech by regulating prior steps “in the speech
process.” Citizens United v. FEC, 558 U.S. 310, 336 (2010); see, e.g., Minneapolis Star
& Trib. Co. v. Minn. Comm’r of Revenue, 460 U.S. 575, 591 (1983) (rejecting tax of
paper and ink necessary to produce newspapers).
6 See Apple App Store, Top Charts: Weather, https://perma.cc/253Y-YYY6; Google
Play Store, Search: “Measurement Conversion,” https://perma.cc/4SZ4-FUC3.
12
B. By providing access to apps, app stores help their users access the
internet’s fully protected speech.
App stores are engaged in expressive activity protected by the First Amendment.
Like web browsers before them, app stores provide users with means to access
the internet’s vast amounts of fully protected speech. So app stores are not merely
retail channels for software. They are modern distribution points for protected
expression across media: films and video services, books and audiobooks, news,
messaging, web browsing, educational tools, and games, among others. The First
Amendment has long protected distributors of expression, including booksellers, film
exhibitors, the mails, libraries, and the internet itself. E.g., Manhattan Cmty. Access
Corp. v. Halleck, 587 U.S. 802, 812 (2019) (“community bulletin boards” and
“[c]omedy clubs” hosting “open mic nights”); Reno, 521 U.S. at 870 (internet); Turner
Broad. Sys., Inc. v. FCC, 512 U.S. 622, 637-38 (1994) (cable operators); Bd. of Educ.
v. Pico, 457 U.S. 853, 868-69 (1982) (libraries); Interstate Circuit, Inc. v. City of Dallas,
390 U.S. 676, 682 (1968) (movie theaters); Lamont v. Postmaster Gen., 381 U.S. 301
(1965) (mail); Smith v. California, 361 U.S. 147, 150 (1959) (“dissemination of books
and other forms of the printed word furnish very familiar applications of these
constitutionally protected freedoms”); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495
(1952) (movies). The only difference is that app stores lack the physical restraints of
these brick-and-mortar locations, and can thus act as bookstores, research libraries,
movie theaters, record stores, video game arcades, and more—all in one convenient
place. That is, app stores facilitate access to far more expression than
brick-and-mortar analogs.
13
The Act here burdens the same constitutional interests that apply to those other
distributors by conscripting app stores into regulating access to lawful speech.
C. Texas’s App Store Accountability Act uses content-based coverage
criteria and was animated by a content-based and censorial
purpose.
The First Amendment’s “most basic” principle is that “government has no power
to restrict expression because of its message, its ideas, its subject matter, or its
content.” Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 790-91 (2011) (quotation
omitted). Consequently, “[c]ontent-based laws”—those that “appl[y] to particular
speech because of the topic discussed or the idea or message expressed”—“are
presumptively unconstitutional” and trigger “strict scrutiny.” Reed v. Town of Gilbert,
576 U.S. 155, 163-64 (2015). “Strict scrutiny is unforgiving . . . [and] fatal in fact
absent truly extraordinary circumstances.” Free Speech Coal., Inc. v. Paxton, 606 U.S.
461, 484-85 (2025).
Here, the Act is content-based both on its face and in its undisputed purpose.
Either would be sufficient to subject the Act’s speech restrictions to strict scrutiny.
First, the Act exempts particular apps from its restrictions based on “the topic
discussed” on the app. Reed, 576 U.S. at 163-64. In particular, the Act exempts apps
that provide emergency services or standardized testing. Tex. Bus. & Com. Code
§ 121.022(h). “As a result, it is inevitable that the burdens Texas’s ASAA imposes on
access to speech are applied depending on the substantive content of the speech.”
ACT, Fifth Circuit Lays an Egg on Age Verification, https://perma.cc/TU3G-M2GX.
Such exemptions subject the Act’s provisions to strict scrutiny. E.g., Barr v. Am. Ass’n
14
of Pol. Consultants, Inc., 591 U.S. 610, 619 (2020) (plurality op.) (content-based
exceptions render law content-based); Sorrell, 564 U.S. at 563-64 (similar).
Second, “‘a content-based [governmental] purpose may be sufficient in certain
circumstances to show that a regulation is content based.’” Reed, 576 U.S. at 165
(quoting Turner, 512 U.S. at 642). This Court has gone further and suggested that
the “improper censorial goals of the legislature” are enough to invalidate a law, and
not merely subject the law to strict scrutiny. Minneapolis Star, 460 U.S. at 580. Here,
the record is replete with impermissible content-based and censorial justifications for
the Act’s speech restrictions. From the Act’s enactment history to Respondent’s
defense of the law in the courts below, it is plain that Texas intends the law to restrict
minors’ access to “unsuitable” and “objectionable” “material.” CCIA.App’x.172a, 174a.
II. The Fifth Circuit’s conclusion that app stores facilitate access to solely
commercial speech risks erroneously rendering much of the internet
“commercial speech.”
Ignoring the weight of authority, the Fifth Circuit held in a single paragraph that
the Act, “at most, . . . regulates speech that ‘proposes a commercial transaction’”—
i.e., commercial speech. CCIA.App’x.4a (emphasis added) (quoting Cent. Hudson Gas
& Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557 (1980)). The panel further
suggested that the Act does not regulate speech at all. CCIA.App’x.5a n.7. This
conclusion is wrong.
A. App stores’ provision of access to apps is not commercial speech or commercial
conduct under this Court’s precedent and common sense.
This Court has cabined the First Amendment commercial-speech doctrine to
speech that “does no more than propose a commercial transaction.” United Foods, 533
15
U.S. at 409. Much like this Court’s narrow definitions of unprotected speech, the
commercial-speech doctrine must be applied strictly to avoid burdening other forms
of fully protected speech. See CCIA.App.24.
Offering access to expressive, informative, and speech-facilitating apps certainly
does “more than propose a commercial transaction.” United Foods, 533 U.S. at 409.
Time and again, this Court has rejected arguments to expand the scope of the
commercial-speech doctrine.
For example, the fact that speech is offered for profit is “insufficient by itself” to
transform speech into “commercial speech.” Bolger v. Youngs Drug Prods. Corp., 463
U.S. 60, 67 (1983). The “First Amendment extends to all persons engaged in
expressive conduct, including those who seek profit.” 303 Creative, 600 U.S. at 600;
City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 756 n.5 (1988) (“[T]he
degree of First Amendment protection is not diminished merely because the
newspaper or speech is sold rather than given away.”). The government can no more
“prohibit[]” the “selling [of] books” than it can restrict “the writing of them.” Brown,
564 U.S. at 792 n.1; id. (“Whether government regulation applies to creating,
distributing, or consuming speech makes no difference.”). In Brown itself, this Court
rejected the assertion that restricting “the sale or rental” of expression to minors
regulates mere conduct. Id. at 792 n.1.7 Otherwise, any number of publications,
7 See Pet.’s Reply Br., Brown v. Ent. Merchs. Ass’n, 2010 WL 4034925, at *3-4, *11-
18 (U.S. Oct. 8, 2010) (arguing law “cover[ed] only commercial transactions entered
into by minors outside the presence of parents”).
16
including books, newspapers, magazines, television channels, and streaming services
could be deemed commercial speech. 303 Creative, 600 U.S. at 594.
Indeed, “[s]ome of our most valued forms of fully protected speech are uttered for
a profit.” Bd. of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 482 (1989). Seeing
a movie or play often requires buying a ticket. Reading a book often requires paying
a university bookstore for a textbook or Amazon for an ebook. Streaming and buying
music requires monetary payment. The examples are boundless. Put another way,
some kind of transaction is often a necessary part “in the speech process.” Citizens
United, 558 U.S. at 336. Accordingly, the fact of such transactions does not convert
either the sale of speech or the underlying speech itself into commercial speech.
Likewise, it does not matter that app stores might also separately advertise
particular apps (qualifying as commercial speech) or that apps themselves might
include commercial speech in their broader offerings of fully protected speech. For
example, this Court has observed “that much of the material in ordinary newspapers
is commercial speech.” City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410,
423 (1993). After all, the newspaper industry long relied on advertising revenue, such
that detailed reporting on political scandals coexisted with full-page advertisements
for department-store sales. Nevertheless, newspapers do far “more than propose a
commercial transaction.” United Foods, 533 U.S. at 409. In such cases, the
commercial-speech advertisements are “inextricably intertwined with otherwise fully
protected speech.” Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 796
(1988). And the government cannot “separate the component parts of” commercial
17
speech “from the fully protected whole.” Id. So the presence of advertisements in a
publication does not permit regulating access to newspapers, any more than it can
justify regulating apps and the broader internet.
B. The Fifth Circuit erroneously concluded otherwise, and its rationale risks
being dangerously sweeping.
At core, the problems with the Fifth Circuit’s analysis are perhaps best
illustrated by replacing the word “app” with “book” in the panel’s analysis: “After all,
users browsing [a book] store can see a catalog of [books], obtain additional
information, and download or purchase [a book].” CCIA.App’x.4a. From these
observations, the panel concluded that “[a]pp listings propose commercial
transactions,” which purportedly allows Texas to impose “‘modes of regulation that
might be impermissible in the realm of noncommercial expression.’” CCIA.App’x.4a
& n.5 (quoting Fla. Bar v. Went For It, Inc., 515 U.S. 618, 623 (1995)). If the Fifth
Circuit “were correct, the Government could prohibit” people from accessing books
under the guise of regulating commercial transactions. Citizens United, 558 U.S. at
349. “This troubling assertion of brooding governmental power cannot be reconciled
with the confidence and stability in civic discourse that the First Amendment must
secure.” Id. The two additional reasons the court offered are likewise flawed.
First, the court concluded that “[a]pp listings propose commercial transactions,
regardless of whether any monetary payment is made” because “the ‘payment’ for
apps that are purportedly ‘free’ is access to user data and private information.”
18
CCIA.App’x.4a.8 As Applicants recount, the record contains no evidence supporting
this conclusion. E.g., CCIA.App.24. Besides, the fact that fully protected speech is
offered for sale does not make that expression “commercial speech.” See supra
pp.18-19. If paying money for expression is not enough to make the speech
“commercial,” purportedly “paying” with “data” cannot either.
Moreover, the Fifth Circuit’s “data-for-speech” analysis risks making much of the
internet “commercial speech.” Simply put, internet use requires some amount of data
collection and processing. Otherwise, online services could not operate and provide
the vast amount of expression and information they do. Digital services often collect
users’ Internet Protocol addresses, as well as technical data about the user’s device,
operating system, and screen resolution. Services may also use data about a user’s
preferred language, age, and preferences to inform what content the user sees. In
recognition of the internet’s reliance on “data,” true, comprehensive data-privacy
laws—including Texas’s—permit online services to collect data that is “adequate,
relevant, and reasonably necessary.” Tex. Bus. & Com. Code § 541.101(a)(1).
Consequently, the Fifth Circuit’s hasty conclusion—if taken to its logical end—
could render much of the internet commercial speech. See Catholic Charities USA,
Privacy Policy (Oct. 31, 2023), https://perma.cc/8R8D-EMA5 (“CCUSA may collect
personal or aggregate information about Users of the Website. . . . We use the
information we collect from you for the following purposes: . . . other legitimate
As Applicants note, many apps on the app stores are offered for free. See
CCIA.App.24.
8
19
business
purposes.”);
PBS,
PBS
Privacy
Policy
(Apr.
11,
2023),
https://perma.cc/Q9DE-N3N3 (“We may use cookies, web beacons, local shared
objects, and other similar technologies to collect information about your use of the
Services.”);
The
Associated
Press,
AP
Privacy
Policy
(Nov.
5,
2025),
https://perma.cc/FVH2-DCTC (“We may collect information from you automatically
when you use our Services.”). That would be contrary to this Court’s long line of
precedent evaluating online speech restrictions under traditional First Amendment
scrutiny. E.g., SEAT.App.13-14.
Second, the Fifth Circuit observed that “[a]ny minor who downloads an app must
accept its terms of service, including agreements about how the minor’s data is used.”
CCIA.App’x.5a (emphasis added). Here too, the Fifth Circuit’s “terms of service”
rationale risks stripping many websites internet-wide of the First Amendment’s
protections, and does not support the panel’s conclusion that offering apps is
“commercial speech.” “Many websites . . . authorize a user’s access only upon his
agreement to follow specified terms of service.” Van Buren v. United States, 593 U.S.
374, 394 (2021). Much like collecting data, agreeing to terms of service online is
ubiquitous because it is often required. For example, state, federal, and international
data-privacy regulations make such terms of service necessary for online services to
operate responsibly and lawfully. E.g., 16 C.F.R. § 312.10 (federal Children’s Online
Privacy Protection Act regulations requiring “retention policy”); Tex. Bus. & Com.
Code § 541.102(a) (“A controller shall provide consumers with a reasonably accessible
and clear privacy notice.”); Regulation 2016/679 of the European Parliament and of
20
the Council of 27 April 2016, arts. 12-14, 2016 O.J. (L 119) 1 (European General Data
Protection Regulation requiring privacy notice). Yet, under the panel’s rationale,
websites’ attempts to comply with law could be what strips them of their First
Amendment protections. There is no basis for that in this Court’s precedent.
If Texas wanted to regulate those terms of service—or any of their particular
terms, such as “arbitration provisions,” CCIA.App’x.5a (citation modified)—it could
have targeted the terms of service themselves. It did not. Instead, the Act burdens
threshold access to apps on app stores in particular, threatening Texans’ access to
the internet’s trove of valuable expression and expression-facilitating tools.
III. The Fifth Circuit erred by short-circuiting the appellate process to stay
the district court’s preliminary injunction and upset the decades-old
status quo.
The Fifth Circuit’s order was the product of a process that bypassed much of the
normal appellate procedure. Accordingly, it unnecessarily disrupted the status quo
ante to allow Respondent to enforce revolutionary restrictions on access to the near
sum-total of human knowledge.
For one, Respondent’s actions belie that such drastic action was necessary. If
enforcing the Act’s requirements were critical, Respondent certainly did not act like
it. As Applicants explain, Respondent waited nearly a month just to seek a stay of the
preliminary injunction in the district court. E.g., CCIA.App.13. And in the court of
appeals, Respondent did not seek expedited review. To the contrary, Respondent
asked for and received a one-month extension on its opening brief.
Even if Respondent had demonstrated the necessary diligence, the Fifth Circuit’s
order unnecessarily disrupted the status quo ante of free access to the internet’s
21
wealth of fully protected speech. Overnight, the Fifth Circuit placed unprecedented
burdens on Texans’ access to the internet’s protected speech. Of course, the Act will
impede access to long-valued sources of expression, such as the Wall Street Journal
and Disney. But the Act’s effects may be most acutely felt for the small app
developers, who (in some ways) are the internet’s main beneficiaries. Those smaller
apps may not reach their audiences without the app stores’ help. And now those app
stores are under “governmental authority, subject only to a parental veto.” Brown,
564 U.S. at 795 n.3 (emphasis omitted).
The Fifth Circuit’s process in granting the stay is not one designed to produce
decisions based on rigorous evaluation of legal arguments. Nor is it the kind of process
that makes for orderly litigation in the lower courts. It does, however, result in
applications like these—where litigants must scramble to protect their rights. In fact,
this case is not the first time the Fifth Circuit has issued stays of preliminary
injunctions in cases with substantial First Amendment implications. E.g., NetChoice,
LLC v. Paxton, 142 S. Ct. 1715, 1715-16 (2022) (order vacating stay in First
Amendment case); see NetChoice, LLC v. Fitch, 145 S. Ct. 2658 (2025) (order declining
to vacate stay in First Amendment case); id. at 2658 (Kavanaugh, J., concurring)
(“NetChoice has, in my view, demonstrated that it is likely to succeed on the
merits[.]”).
* * *
What Texas has done is unprecedented. But that does not mean this Court’s
precedents are ill-equipped to address the Act. To the contrary, well-established First
22
Amendment doctrine anticipates that new technologies will spark the same kinds of
censorial governmental actions that animated the First Amendment. E.g., Moody,
603 U.S. at 733. Under longstanding First Amendment principles, the Act’s
restrictions are unconstitutional.
CONCLUSION
The Applications should be granted.
Respectfully submitted,
Christopher J. Marchese
Paul D. Taske
NETCHOICE
1401 K St. NW, Suite 502
Washington, DC 20005
Steven P. Lehotsky
Counsel of Record
Jeremy Evan Maltz
LEHOTSKY KELLER COHN LLP
200 Massachusetts Ave.
NW, Suite 700
Washington, DC 20001
(512) 693-8350
steve@lkcfirm.com
Counsel for Amicus Curiae NetChoice
Cory L. Andrews
WASHINGTON LEGAL FOUNDATION
2009 Massachusetts Ave. NW
Washington, DC 20036
Counsel for Amici Curiae
Counsel for Amicus Curiae
Washington Legal Foundation
JUNE 2026
23
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.