Reply Brief — Computer & Communications Industry Association, Applicant v. Ken Paxton, Attorney General of Texas

No. 25A1390

In the Supreme Court of the United States

__________

COMPUTER & COMMUNICATIONS INDUSTRY ASSOCIATION, APPLICANT

v.

KEN PAXTON, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF TEXAS.

__________

ON APPLICATION TO THE HONORABLE SAMUEL A . ALITO, JR., ASSOCIATE JUSTICE OF THE

SUPREME COURT OF THE UNITED STATES AND CIRCUIT JUSTICE FOR THE FIFTH CIRCUIT

__________

REPLY IN SUPPORT OF

APPLICATION TO VACATE STAY PENDING APPEAL

__________

ELIZABETH B. PRELOGAR

EPHRAIM A. MCDOWELL

JOSHUA REVESZ

Cooley LLP

1299 Pennsylvania Ave., NW

Washington, DC 20004

(202) 842-7800

DENO HIMONAS

ELIZABETH W. SHARKEY

Wilson Sonsini

Goodrich & Rosati, PC

95 S. State Street, Suite 1000

Salt Lake City, UT 84111

(801) 401-8510

BRIAN M. WILLEN

Counsel of Record

LAUREN GALLO WHITE

EDWARD P. PERCARPIO

Wilson Sonsini

Goodrich & Rosati, PC

31 W. 52nd Street, 5th Floor

New York, NY 10019

(212) 999-5800

bwillen@wsgr.com

LAURA LEE PRATHER

CATHERINE L. ROBB

MICHAEL J. LAMBERT

REID PILLIFANT

Haynes and Boone, LLP

98 San Jacinto Blvd., Suite 1500

Austin, TX 78701

Counsel For Applicant Computer & Communications Industry Association

TABLE OF CONTENTS

PAGE(S)

INTRODUCTION ................................................................................................ 1

REASONS FOR GRANTING THE APPLICATION .......................................... 3

I.

CCIA is likely to succeed on the merits. ....................................... 3

A.

SB2420 triggers strict scrutiny because it is

content-based and regulates far more than

commercial speech. .............................................................. 3

B.

The Act’s requirements fail strict or even

intermediate scrutiny. ....................................................... 11

C.

The facial relief in this case satisfies Moody............. ...... 13

D.

The scope of the injunction is proper. ............................... 17

II.

This Court would likely grant certiorari. .................................... 18

III.

The equitable factors favor immediate relief. ............................. 19

CONCLUSION .................................................................................................. 20

i

TABLE OF AUTHORITIES

PAGE(S)

CASES

303 Creative LLC v. Elenis,

600 U.S. 570 (2023) ................................................................................... 7

Barr v. American Ass’n of Political Consultants, Inc.,

591 U.S. 610 (2020) ................................................................................... 7

Board of Trs. of State Univ. of N.Y. v. Fox,

492 U.S. 469 (1989) ................................................................................... 8

Boos v. Barry,

485 U.S. 312 (1988) ................................................................................... 4

Brown v. Entertainment Merchants Ass’n,

564 U.S. 786 (2011) ................................................................. 1, 10, 12, 15

City of Austin v. Reagan Nat’l Advert. of Austin, LLC,

596 U.S. 61 (2022) ..................................................................................... 6

City of Cincinnati v. Discovery Network, Inc.,

507 U.S. 410 (1993) ................................................................................. 11

City of Ladue v. Gilleo,

512 U.S. 43 (1994) ................................................................................. 4, 5

City of Renton v. Playtime Theatres, Inc.,

475 U.S. 41 (1986) ..................................................................................... 4

Dex Media W., Inc. v. City of Seattle,

696 F.3d 952 (9th Cir. 2012)................................................................... 18

Erznoznik v. City of Jacksonville,

422 U.S. 205 (1975) ................................................................................. 15

Florida Bar v. Went For It, Inc.,

515 U.S. 618 (1995) ................................................................................... 8

Free Speech Coal. v. Paxton,

606 U.S. 461 (2025) ......................................................................... 3, 5, 18

Hollingsworth v. Perry,

558 U.S. 183 (2010) ................................................................................. 18

ii

Kansas v. Colorado,

514 U.S. 673 (1995) ................................................................................. 20

Manhattan Cmty. Access Corp. v. Halleck,

587 U.S. 802 (2019) ................................................................................. 10

Margolin v. Nat’l Ass’n of Immigr. Judges,

146 S. Ct. 1285 (2026)....................................................................... 13, 14

Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue,

460 U.S. 575 (1983) ................................................................................... 4

Moody v. NetChoice, LLC,

603 U.S. 707 (2024) ........................................................... 2, 14, 15, 17, 18

NetChoice, LLC v. Yost,

2026 WL 1758907 (6th Cir. June 18, 2026) ........................................... 18

Packingham v. North Carolina,

582 U.S. 98 (2017) ................................................................................... 11

Reed v. Town of Gilbert,

576 U.S. 155 (2015) ........................................................................... 5, 6, 7

Reno v. ACLU,

521 U.S. 844 (1997) ............................................................................. 4, 16

Riley v. Nat’l Fed’n of the Blind of N.C.,

487 U.S. 781 (1988) ........................................................................... 10, 11

Roman Cath. Diocese of Brooklyn v. Cuomo,

592 U.S. 14 (2020) ................................................................................... 19

Rumsfeld v. Forum for Acad. & Inst. Rights, Inc.,

547 U.S. 47 (2006) ..................................................................................... 9

Smith v. California,

361 U.S. 147 (1959) ................................................................................... 8

Sorrell v. IMS Health Inc.,

564 U.S. 552 (2011) ............................................................................... 3, 4

Trump v. CASA, Inc.,

606 U.S. 831 (2025) ................................................................................. 17

Turner Broad. Sys., Inc. v. FCC,

512 U.S. 622 (1994) ............................................................................. 5, 11

iii

United States v. Salerno,

481 U.S. 739 (1987) ................................................................................. 15

United States v. United Foods, Inc.,

533 U.S. 405 (2001) ................................................................................... 7

United States v. Virginia,

518 U.S. 515 (1996) ................................................................................. 11

Van Buren v. United States,

593 U.S. 374 (2021) ................................................................................... 9

STATUTES

Children’s Online Privacy Protection Act......................................................... 13

Texas Bus. and Comm. Code § 121.021 ............................................................ 14

Texas Bus. and Comm. Code § 121.022 .................................................... 5, 6, 14

Texas Bus. and Comm. Code § 121.025 .............................................................. 8

Texas Bus. and Comm. Code § 121.026(a)(1) ..................................................... 8

Texas Bus. and Comm. Code § 121.055 .............................................................. 8

Texas Bus. and Comm. Code § 121.056(a)(1) ..................................................... 8

Texas Data Privacy and Security Act ............................................................... 13

iv

INTRODUCTION

The Texas law challenged here is a full-scale, first-of-its-kind assault on the

First Amendment. Under SB2420, Texas minors cannot use their mobile phones to

download apps that give them access to news, religious material, and entertainment

without parental consent. Likewise, Texas minors cannot make in-app purchases of

audiobooks, movies, television episodes, and other paradigmatic forms of protected

expression. As this Court held in Brown v. Entertainment Merchants Ass’n, 564 U.S.

786 (2011), prohibitions like these defy the Constitution: States lack the power “to

prevent children from hearing or saying anything without their parents’ prior

consent,” and so “punishing third parties for conveying protected speech to

children just in case their parents disapprove of that speech” is not “a proper

governmental means of aiding parental authority.” Id. at 795 n.3, 802 (emphases

omitted).

Texas’s opposition strains mightily to obscure the effects of SB2420. The State

does not contest that its law restricts minors from accessing “e-books.” Opp. 1. But

rather than defend that indefensible choice, Texas rests its opposition on the idea

that banning a minor from accessing protected speech is a permissible regulation of

“a commercial transaction”—or, “at most, commercial speech.” Id. (citation omitted).

Thus, in Texas’s telling, the Court was wrong in Brown to analyze a restriction on

minors’ purchase of videogames under ordinary First Amendment scrutiny—the

Court should simply have held that the videogame purchases were commercial

transactions that did not trigger First Amendment concerns.

1

The Fifth Circuit erred in accepting that contorted argument, and this Court

should vacate the stay order allowing Texas to enforce SB2420. Beyond Texas’s

commercial-speech error, there is no other basis to defend the Fifth Circuit’s flawed

stay ruling. Texas is not likely to successfully defend its law’s age-verification and

parental-consent requirements under strict or even intermediate scrutiny; indeed,

Texas apparently has no response to either this Court’s controlling precedent or to

the arguments made in CCIA’s application. Nor is Texas likely to succeed in its

forfeited argument based on Moody v. NetChoice, LLC, 603 U.S. 707 (2024), given

that SB2420 is categorically unconstitutional as to every app store to which its

requirements could be applied.

The remaining factors likewise favor immediate relief. This case is plainly

suitable for the Court’s plenary review: The Court has granted review in cases

involving free speech online twice in recent Terms, and there is every reason to think

this case would turn those cases into a trilogy. Finally, the equities counsel strongly

in favor of this Court’s immediate intervention. Every day that SB2420 remains in

effect, it abridges the free-speech rights of app stores, app developers, and app users.

And given Texas’s lackadaisical defense of its law, there is no reason for SB2420 to

impose those burdens while the district court’s preliminary injunction is on appeal.

2

REASONS FOR GRANTING THE APPLICATION

I.

CCIA is likely to succeed on the merits.

A.

SB2420 triggers strict scrutiny because it is content-based and

regulates far more than commercial speech.

SB2420 is a content-based regulation of speech that triggers strict scrutiny for

two reasons. First, the law is designed to suppress speech that the State views as

inappropriate for minors.

Second, the law contains expressly content-based

exceptions. Seeking to avoid strict scrutiny, Texas principally asserts that SB2420

regulates only commercial speech.

That assertion is profoundly wrong—and

profoundly dangerous. Embracing that theory would allow States to regulate much

of the internet—and all manner of expressive products created for profit—as

commercial speech subject to reduced First Amendment protections. That is not the

law.

1. a. SB2420 is content-based because its purpose is to suppress certain

categories of supposedly harmful speech. “A law can regulate the content of protected

speech, and thereby trigger strict scrutiny,” based on an impermissible “justification.”

Free Speech Coal. v. Paxton, 606 U.S. 461, 482 (2025) (citation omitted). Indeed, even

if a law “on its face appear[s] neutral as to content and speaker,” it is

“unconstitutional” if “its purpose [is] to suppress speech.” Sorrell v. IMS Health Inc.,

564 U.S. 552, 566 (2011). That is the case here. As CCIA’s application explains (at

27-28), the legislative history and official government statements about SB2420 leave

no doubt that the law “specifically [seeks] to shield minors from certain speech the

State deems objectionable or harmful.” App.26a.

3

Texas contends (at 22) that “legislative intent” is irrelevant to whether

SB2420’s aim is to suppress speech. But as just explained, this Court’s precedents

have consistently looked to whether a speech-suppressive “purpose” underlies the

law. Sorrell, 564 U.S. at 566; see, e.g., Minneapolis Star & Tribune Co. v. Minnesota

Comm’r of Revenue, 460 U.S. 575, 580 (1983) (asking whether there was

“impermissible or censorial motive on the part of the legislature”). Texas’s reliance

on the “secondary effects” framework from City of Renton v. Playtime Theatres, Inc.,

475 U.S. 41 (1986), is misplaced. Id. at 47; see Opp. 23. That framework does not

apply where, as here, the law “applies broadly to the entire universe of cyberspace,”

and its “purpose . . . is to protect children from the primary effects of” certain speech,

“rather than any ‘secondary’ effect of such speech.” Reno v. ACLU, 521 U.S. 844, 868

(1997); see Boos v. Barry, 485 U.S. 312, 321 (1988) (“Regulations that focus on the

direct impact of speech on its audience” are not properly analyzed under Renton). In

short, the State may not “burden free expression” based on the view “that disfavored

speech has adverse effects.” Sorrell, 564 U.S. at 577.

Texas claims (at 23) that the “scope and operation” of the law weigh against

application of “strict scrutiny.” Just the opposite: SB2420’s “blanket restriction” on

vast swaths of protected expression only confirms that strict scrutiny is the proper

standard. Reno, 521 U.S. at 868. Indeed, this Court has “voiced particular concern”

about laws restricting “an entire medium of expression.” City of Ladue v. Gilleo, 512

U.S. 43, 55 (1994); see id. (citing cases).

Although such laws may appear

“evenhanded[],” Opp. 24, “the danger they pose to the freedom of speech is readily

4

apparent—by eliminating a common means of speaking, such measures can suppress

too much speech,” City of Ladue, 512 U.S. at 55. SB2420 poses precisely that danger.

b. In addition, SB2420 “regulate[s] the content of protected speech . . . ‘on its

face’” because it contains content-based exceptions. Free Speech Coal., 606 U.S. at

482 (citation omitted). As Texas recognizes (at 27), the Act exempts certain types of

apps from the parental-consent requirement—namely, apps providing emergency

services and standardized testing. § 121.022(h). So while a minor would need to

obtain parental consent before downloading a news app—or virtually any other app—

he would not need such consent before downloading an app providing SAT exams or

access to a crisis hotline. Because SB2420’s exceptions “single[] out specific subject

matter for differential treatment,” they trigger strict scrutiny.

Reed v. Town of

Gilbert, 576 U.S. 155, 164, 169 (2015).

Texas errs in contending (at 28) that SB2420’s exceptions “are not contentbased.” The State first insists (id.) that the standardized-testing exception “concerns

the speaker, not the content of speech.” But the exception is both speaker-based and

content-based. Standardized testing is a “specific subject matter,” so exempting apps

focusing on that subject is a “content based” legislative action. Reed, 576 U.S. at 169.

And even if the standardized-testing exception can also be viewed as speaker-based,

“laws favoring some speakers over others demand strict scrutiny when the

legislature’s speaker preference reflects a content preference.” Turner Broad. Sys.,

Inc. v. FCC, 512 U.S. 622, 658 (1994). Here, the exemption for standardized-testing

5

apps reflects a clear legislative preference for standardized-testing content over other

content.

Texas fares no better in arguing (at 27) that the “emergency-services

exception” is not content-based because such “applications provide a particular

function.” Again, that exception evinces the State’s preference for certain speakers

(emergency-service providers) and certain content (“9-1-1 emergency services,” “crisis

hotline[s],” or “emergency assistance service[s],” § 121.022(h)(1)(A)(i)-(iii)). The fact

that the exempted apps also serve a particular function is immaterial. As this Court

has recognized, “a regulation of speech cannot escape classification as facially

content-based simply by swapping an obvious subject-matter distinction for a

‘function or purpose’ proxy that achieves the same result.” City of Austin v. Reagan

Nat’l Advert. of Austin, LLC, 596 U.S. 61, 74 (2022). Music apps serve the function

of playing music, and news apps serve the function of providing news—but if SB2420

exempted music and news apps from its strictures, those exemptions would

undoubtedly be content-based. So too here.

Texas also claims (at 29) that standardized-testing and emergency-services

apps are not “favored” over other apps. That is wrong. A minor need not obtain

parental consent to download the exempted apps—meaning that those apps can

disseminate their content to minors more easily than other apps. Accordingly, the

exempted apps (and their content) “are given more favorable treatment” than all

other apps—which is “a paradigmatic example of content-based discrimination.”

Reed, 576 U.S. at 169.

6

Texas has no cogent response to Barr v. American Ass’n of Political

Consultants, Inc., 591 U.S. 610 (2020). See Opp. 29. There, the plurality held that a

“law favor[ing] speech made for collecting government debt over political and other

speech” was “a content-based restriction on speech.” Barr, 591 U.S. at 619. The same

logic applies to SB2420’s preference for standardized-testing and emergency-services

speech over other speech. Texas’s suggestion (at 29) that the emergency-services

exception could “survive[] strict scrutiny” ignores that the State bears the burden of

establishing that the exception is narrowly tailored to a compelling interest—which

it has not even attempted to meet.

Finally, “severability principles” do not advance Texas’s position. Opp. 30.

Even if the standardized-testing and emergency-services exceptions were severable,

the “content-based” nature of those exceptions would still render the “law” “subject to

strict scrutiny.” Barr, 591 U.S. at 621 (quoting Reed, 576 U.S. at 165). And the law

cannot survive strict scrutiny (or any form of heightened scrutiny), as explained

below.

2.

SB2420 does not regulate mere commercial speech.

This Court has

repeatedly recognized that full First Amendment protections “extend[] to all persons

engaged in expressive conduct, including those who seek profit.” 303 Creative LLC v.

Elenis, 600 U.S. 570, 600 (2023).

Commercial-speech doctrine applies only to

expression that “does no more than propose a commercial transaction.” United States

v. United Foods, Inc., 533 U.S. 405, 409 (2001). Here, SB2420 targets expression that

does far more than propose a commercial transaction: It applies to the downloading

7

of virtually any app (including free ones) and virtually any content within an app

(including e-books or newspaper articles). The speech at issue thus looks nothing like

the type of speech this Court has deemed commercial in nature. See, e.g., Florida Bar

v. Went For It, Inc., 515 U.S. 618, 623 (1995) (“lawyer advertising”); Board of Trs. of

State Univ. of N.Y. v. Fox, 492 U.S. 469, 472 (1989) (“demonstrating and offering

products for sale”). As amici explain, the Fifth Circuit’s flawed commercial-speech

holding is illustrated by “replacing the word ‘app’ with ‘book’ in the panel’s

analysis: . . . ‘users browsing [a book] store can see a catalog of [books], obtain

additional information, and download or purchase [a book].’” Br. of Amici Curiae

NetChoice et al. 18 (quoting App.4a). No one would think that a law regulating

bookstores and book sales targets commercial speech merely because customers pay

for books, see Smith v. California, 361 U.S. 147, 150 (1959)—and the same logic

should apply to app stores and in-app content sales.

Texas offers no persuasive defense of the Fifth Circuit’s commercial-speech

ruling.

Texas asserts (at 20) that SB2420 “regulates commercial transactions”

because app users “must agree to contractual terms and conditions on important

issues such as data privacy.” But that is a misdirection: Unlike Texas’s actual dataprivacy statute, see Appl. 33, SB2420 does not regulate app stores’ privacy protections

or collection and use of personal data (other than with respect to new categories of

age-verification data that the Act itself brings into existence, see §§ 121.025;

121.026(a)(1), (3); 121.055; 121.056(a)(1), (3)).

Instead, SB2420 requires age

verification for all app-store account creation (a prerequisite for accessing the speech

8

that app stores disseminate)—regardless of the app stores’ “contractual terms” or

“data privacy” practices.

Opp. 20.

And the Act requires parental consent for

downloading all apps and purchasing all in-app content—no matter whether and how

apps use minors’ personal data.

Indeed, Texas’s argument would threaten to transform almost all expression

on the internet into commercial speech. To operate effectively, online services must

necessarily collect certain data (e.g., about the user’s IP address) and use certain data

(e.g., about the user’s language preferences). See Br. of Amici Curiae NetChoice et al.

19. Likewise, “[m]any 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). Yet in Texas’s (and the Fifth Circuit’s) view, any website or app that combines

those common features—data collection, use, and terms of service—would

automatically become commercial speech subject to broad state regulation. That view

is untenable: If directly paying money for books does not transform transactions into

commercial speech, indirectly “paying” with “data” does not either.

Texas’s analogies are misconceived.

Laws “deny[ing] drivers’ licenses to

children under sixteen,” “usury laws,” and “regulat[ions of] . . . shopping mall[s]”

target conduct, not speech. Opp. 20-21. And it is well established that the “regulation

of conduct” generally “does not violate the First Amendment,” even if it “incidentally

affects expression.” Rumsfeld v. Forum for Acad. & Inst. Rights, Inc., 547 U.S. 47, 70

(2006). Here, by contrast, SB2420 targets expression by directly imposing threshold

burdens on the distribution of and access to speech on apps. It thus resembles a law

9

requiring age verification before a person may enter a bookstore and parental consent

before a minor may purchase a book.

And it resembles the law in Brown v.

Entertainment Merchants Ass’n, 564 U.S. 786 (2011), which “prohibit[ed] the sale or

rental of ‘violent video games’ to minors,” absent parental consent. Id. at 789. Such

laws do not regulate commercial speech—indeed, in Brown, the dissenting Justices

did not even hint at a commercial-speech argument.

Texas also insists (at 21-22) that because parents may decide to “disallow[] a

child from having any access to a mobile device,” the State itself may bar “children’s

access to specific software applications” without parental consent. But the First

Amendment “constrains governmental actors and protects private actors.”

Manhattan Cmty. Access Corp. v. Halleck, 587 U.S. 802, 804 (2019). Thus, the First

Amendment has nothing to say about a parent’s voluntary decision to prevent her

child from using apps, or about use of parental-control tools that speech platforms

voluntarily provide. But “it does not follow that the state has the power to prevent

children from hearing or saying anything without their parents’ prior consent.”

Brown, 564 U.S. at 795 n.3; see id. (emphasizing that the First Amendment bars laws

that “impose governmental authority, subject only to a parental veto”).

Finally, even if SB2420 sweeps in some commercial speech, the result would

be the same.

Speech loses “its commercial character when it is inextricably

intertwined with otherwise fully protected speech.” Riley v. Nat’l Fed’n of the Blind

of N.C., 487 U.S. 781, 796 (1988).

Indeed, “much of the material in ordinary

newspapers is commercial speech,” and yet newspapers receive full First Amendment

10

protection. City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 423 (1993).

Thus, whether apps involve “commercial transactions” and “contractual terms” is

immaterial. Opp. 21. Even accepting that premise, apps also facilitate a “wide array

of protected First Amendment activity on topics ‘as diverse as human thought.’”

Packingham v. North Carolina, 582 U.S. 98, 105 (2017) (citation omitted). “[T]aken

as a whole,” the expression regulated by SB2420 cannot be reduced to commercial

speech. Riley, 487 U.S. at 796.

B.

The Act’s requirements fail strict or even intermediate scrutiny.

Texas will not likely succeed in arguing that SB2420 passes any form of

heightened scrutiny. The State does not even attempt to argue that SB2420 satisfies

strict scrutiny. And its intermediate-scrutiny arguments misstate the government’s

burden, ignore on-point analysis from this Court’s decision in Brown, and fail to

engage with CCIA’s arguments.

1. As the State acknowledges (at 26), Texas created no record and proffered no

“evidence” in support of SB2420. And under both strict and intermediate scrutiny,

Texas bears the burden of showing that its law is sufficiently related to a weighty

state interest. United States v. Virginia, 518 U.S. 515, 533 (1996); see Appl. 36. With

no record evidence, Texas cannot carry that burden. While Texas responds (at 26) by

citing Turner Broadcasting System, that case backfires on the State: There, the Court

initially rejected the government’s intermediate-scrutiny arguments because of a

“paucity of evidence” and other “deficienc[ies] in th[e] record.” 512 U.S. at 667-68

(plurality opinion).

11

2.

Beyond that basic evidentiary deficiency, Texas is wrong (at 25) that

SB2420 furthers any “important interest in advancing parental consent.” Again,

Brown’s holding that a state generally lacks “the power to prevent children from

hearing or saying anything without their parents’ prior consent” is dispositive. 564

U.S. at 795 n.3; see supra at 10-11. And “leaving that aside, [Texas] cannot show that

the Act’s restrictions meet a substantial need of parents who wish to restrict their

children’s access to [apps] but cannot do so,” particularly given the utter lack of record

evidence on Texas’s side. Brown, 564 U.S. at 803. Texas therefore cannot overcome

Brown—which is no doubt why Texas’s amici rely on the dissenting opinions in Brown

but ignore the Court’s holding. See Br. of Amicus Curiae Inst. for Family Studies 1619 (citing Brown, 564 U.S. at 822-23 (Thomas, J., dissenting); and id. at 851 (Breyer,

J., dissenting)).

Texas’s parental-consent justification fails for a second reason, too: SB2420’s

“entire effect is only in support of what the State thinks parents ought to want,”

regardless of what they do want (and regardless of the ample parental-control tools

already available to them). Brown, 564 U.S. at 804. The Act does not permit parents

to opt out of its parental-approval regime—or even to give blanket consent to a

seventeen-year-old’s app downloads or in-app purchases. Instead, all Texas parents

must approve every download or purchase individually, regardless of how much they

trust their teens. As one amicus puts it, “no matter what each parent believes about

the degree of autonomy that is best for each child, the State of Texas requires that

the parents constantly look over their children’s shoulders.” Br. of Amicus Curiae

12

Patriot Voices 3. “Rather than vindicate parental authority, SB 2420 hampers it.”

Id.; see SEAT Appl. 25 (similar).

3. Finally, Texas’s opposition provides no basis to conclude that SB2420 is

tailored to advance Texas’s interest in “protecting children’s data, safety, and

privacy.” Opp. 27. As CCIA’s application noted, those interests are thoroughly

addressed by other federal and state statutes—like the Texas Data Privacy and

Security Act and the Children’s Online Privacy Protection Act—that do not prevent

minors from accessing protected speech. Appl. 32-34. Texas says nothing whatsoever

about that argument, confirming that it cannot satisfy any form of heightened

scrutiny.

C.

The facial relief in this case satisfies Moody.

Texas’s opposition leans heavily on the claim that “the district court did not

follow the standard for facial challenges set forth in Moody.” Opp. 14. That argument

is both forfeited and wrong.

1. To start, Texas does not contest that it failed to raise its Moody objection in

the district court and so has failed to preserve it on appeal. See Appl. 37 (citing

Texas’s opposition to preliminary-injunction motion, App.154a-181a, which does not

mention Moody). That forfeiture matters: As this Court emphasized just last month,

courts “rely on the parties to frame the issues for decision and decide only the

questions presented” in the parties’ briefing. Margolin v. Nat’l Ass’n of Immigr.

Judges, 146 S. Ct. 1285, 1288 (2026) (per curiam) (internal quotation marks and

citation omitted). Thus, while Texas has the temerity to complain (at 14) that the

district court “turned to Moody in a brief, one-paragraph analysis,” that choice stems

13

from Texas’s own failure to raise the issue. This Court should not reward Texas’s

decision to defend its law on grounds that it “never asserted” in the district court.

Margolin, 146 S. Ct. at 1288 (citation omitted).

2. But even excusing Texas’s forfeiture, this case differs from Moody. The risk

of “facial challenges” is that they might “prevent[] duly enacted laws from being

implemented in constitutional ways.” Moody, 603 U.S. at 723 (citation omitted).

Thus, Moody holds that courts hearing facial challenges must “determine a law’s full

set of applications” rather than cherry-picking exemplars. Id. at 718. Here, there is

no constitutional way of implementing SB2420 against any app store—and so every

regulated entity would succeed in an as-applied challenge to the law.

Despite its lengthy discussion of the case, see Opp. 15-20, Texas barely engages

with the two-step analysis that Moody prescribes. As Moody explained, the “first step

in the proper facial analysis” is to ask: “[w]hat activities, by what actors, do the laws

prohibit or otherwise regulate?” 603 U.S. at 724. In Moody, that question was

difficult given the ambiguity about which “platform[s] or function[s]” were actually

covered by the law and were engaged in protected expression. Id. at 725. But here,

the question is easy: The law regulates app stores by requiring them to verify users’

ages and to obtain parental consent for any use of the app store, including at the

moment of sign-up. See §§ 121.021-.022. Texas has no answer to this basic point: It

does not dispute that CCIA’s members (including Google, Apple, and Amazon) are the

“near exclusive[] source of downloadable apps.” App.161a; see Opp. 18. And it does

not dispute that those members engage in protected expression in curating their app

14

stores. See Appl. 21. Thus, unlike in Moody, there is no uncertainty about “what the

law covers” and whether the covered entities engage in protected speech. 603 U.S. at

725 (alterations and citation omitted).

The “next order of business”—deciding “which of the law’s applications violate

the First Amendment”—is also straightforward. Moody, 603 U.S. at 725. Texas does

not contest that every app store offers access to a vast range of protected expression—

including news, entertainment, education, and religion. Because Texas has no valid

interest in restricting minors’ access to that expression, SB2420’s age-verification and

parental-consent provisions are invalid in their application to each app store—that

is, invalid as to “every covered platform” to which they could conceivably be applied.

Id. That across-the-board invalidity is the hallmark of a successful facial challenge.

See United States v. Salerno, 481 U.S. 739, 745 (1987).

It does not matter that app stores contain “utility applications” like

“calculators or appliance controls” that, according to Texas, are not protected speech.

Opp. 17.

A physical-world analogy refutes Texas’s argument: If Texas required

minors to obtain parental consent before entering any bookstore, that law would be

facially unconstitutional under Brown and the cases that precede it. Brown, 564 U.S.

at 794; see, e.g., Erznoznik v. City of Jacksonville, 422 U.S. 205, 212 (1975). And the

analysis would not change just because nearly every bookstore sells some goods—

bookmarks, stationery, wrapping paper, and so on—that are not “communicative.”

Opp. 17.

Texas chose to impose SB2420’s onerous parental-consent and age-

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verification demands at the app store level and so must live with the legal

consequences of that choice.

Put differently, Texas’s arguments rest on a misunderstanding of how an asapplied challenge to SB2420 would work. If Google or Apple or Amazon sued to

challenge the law as applied to their specific app store, the challenge would succeed:

SB2420 restricts the free-speech rights of each app store (as well as app developers,

minors, and adults who must undergo age verification). See Appl. 21. And even if

Texas persuaded a court that only the dissemination of “communicative applications”

is protected, Opp. 17, that argument would go at most to the scope of injunctive relief

and not to its availability. All of that is a far cry from Moody, where the Court could

not determine which as-applied challenges would succeed and which would fail.

Moreover, it would be improper to craft an injunction limited to the

dissemination of expressive applications.

App stores cannot constitutionally be

required to determine—on pain of civil penalties and punitive damages—which of

millions of apps provide access to protected speech and which do not. See Reno, 521

U.S. at 883-84 (“Nor, given the vast array of plaintiffs, the range of their expressive

activities, and the vagueness of the statute, would it be practicable to limit our

holding to a judicially defined set of specific applications.”). If it wishes to regulate

in this space, Texas must shoulder the burden of drafting a constitutional law—it

cannot turn app stores into app-by-app gatekeepers of protected speech.

The bottom line is that SB2420 imposes onerous age-verification and parentalconsent requirements that are not constitutional as applied to any app store. SB2420

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thus does not present Moody’s central concern. There is no ambiguity about “which

of the law’s applications are constitutionally permissible and which are not.” 603

U.S. at 744. And there is no need to further “evaluate the full scope of the law’s

coverage” prior to invalidating SB2420. Id. Accordingly, even if the Moody argument

had not been forfeited on appeal, Texas is not likely to succeed in pressing it.

D.

The scope of the injunction is proper.

Nor is Texas likely to succeed on its half-hearted argument (at 31) that the

district court’s preliminary injunction is improperly “universal.” Again, Texas does

not contest that it failed to preserve that argument in district court. See App.154a181a (not citing Trump v. CASA, Inc., 606 U.S. 831 (2025)). So again, Texas cannot

demonstrate a likelihood of success on its forfeited objection.

Even setting forfeiture aside, Texas’s argument is irrelevant to the case at

hand. As Texas acknowledges (at 31), “broad” relief is required if CCIA prevails:

Every major app store is run by a CCIA member, and so a CCIA-specific injunction

fully protects the universe of app stores. Therefore—and particularly given Texas’s

decision not to litigate the scope of relief below—the proper remedy is for this Court

to vacate the Fifth Circuit’s stay in its entirety, permitting the district court to

consider any properly presented motion to narrow its injunction.

Alternatively,

should this Court wish to vacate the Fifth Circuit’s stay only as to app stores run by

CCIA’s members, CCIA has no objection—there would be no practical difference

between that relief and wholesale vacatur.

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II.

This Court would likely grant certiorari.

There is at least a “reasonable probability” that this Court would grant review

if the Fifth Circuit adheres to its stay panel’s analysis. Hollingsworth v. Perry, 558

U.S. 183, 190 (2010) (per curiam).

1. As Texas acknowledges (at 10), the “First Amendment issues” in this case

are “important.” That importance is magnified given that SB2420 has spurred a wave

of copycat legislation. See Appl. 19 & n.5. This Court regularly grants review of

significant First Amendment questions, even in the absence of circuit splits—as, for

example, in Brown. And in the Court’s last three Terms, it has taken up two cases

asking how traditional First Amendment principles apply to state efforts “to regulate

online entities.” Moody, 603 U.S. at 716; see Free Speech Coal., 606 U.S. at 465.

Particularly given States’ ongoing efforts to pass new sweeping laws regulating online

expression, this Court is likely to continue that trend by granting review here.

2.

Certiorari is all the more appropriate because the Fifth Circuit’s

commercial-speech analysis is an outlier throughout the courts of appeals. As CCIA’s

application demonstrated, Appl. 17-19, other appellate tribunals properly recognize

that speech does not lose its protected character just because it is sold for profit. See,

e.g., Dex Media W., Inc. v. City of Seattle, 696 F.3d 952, 957-58 (9th Cir. 2012). Despite

recounting the facts of those cases at length (at 11-13), Texas does not explain how

the stay panel’s decision is consistent with those rulings. See supra at 7-11.

The Sixth Circuit’s opinion last week in NetChoice, LLC v. Yost, 2026 WL

1758907 (6th Cir. June 18, 2026), confirms that certiorari is likely. The court of

appeals confronted a challenge to an Ohio law that requires parental consent for

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minors younger than 16 to sign up for a content-based subset of social-media sites.

Id. at *3 (opinion of Clay, J.).

There, as here, the State’s Attorney General

“defend[ed]” the law “as a legitimate exercise of the state’s prerogative to regulate

contracting with minors.” Id. at *1. But none of the Sixth Circuit judges on the panel

accepted that argument: Judge Clay’s opinion upholds the law under strict scrutiny

id. at *13; Judge Batchelder’s concurrence in the judgment addressed only Moody, id.

at *19; and Judge Ritz’s dissent would have invalidated the law under strict scrutiny,

id. at *34.

That range of approaches—none of which tracks the stay panel’s

conclusion in this case—sharpens the need for this Court’s further review in this area.

3. Finally, Texas is wrong to contend (at 10) that “this case will likely present

a poor vehicle” because “the district court failed to hold Plaintiffs” to the Moody

standard. As already explained, the district court’s injunction fully complied with

Moody, even though Texas forfeited the Moody issue. Similarly, Texas’s argument

(at 13) that the “Fifth Circuit’s decision is fully consistent” with Brown and Free

Speech Coalition cannot be reconciled with those cases, for the reasons discussed

above.

III.

The equitable factors favor immediate relief.

Texas’s equitable arguments repeat the flaws in its merits analysis. It is

settled that any “loss of First Amendment freedoms” causes irreparable harm, Roman

Cath. Diocese of Brooklyn v. Cuomo, 592 U.S. 14, 19 (2020) (per curiam) (citation

omitted), and, conversely, that the State has no interest in enforcing an

unconstitutional law, see id. at 19-20. Texas never contends otherwise: Its equitable

arguments all rest on the notion (at 33-34) that the Act “likely complies with the First

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Amendment.” Because that claim is incorrect, Texas’s equitable arguments fail—

even before considering the significant operational and monetary burdens that

SB2420 imposes on app stores and app developers. See Appl. 39.

Finally, Texas’s litigation conduct underscores that the equities are lopsided.

SB2420 was scheduled to become effective on January 1, 2026. See App.100a. But

Texas waited an entire month before seeking to stay the district court’s injunction,

meaning that the Act became effective for the first time on May 28. See App.40a

(emphasizing “Paxton’s month-long delay in requesting an emergency stay”).

“[E]quity aids the vigilant and not those who slumber on their rights.” Kansas v.

Colorado, 514 U.S. 673, 687 (1995) (citation omitted). In light of Texas’s failure to

act with diligence in defense of its law, the Fifth Circuit erred by allowing SB2420 to

take effect while this case makes its way through the appellate process.

CONCLUSION

This Court should vacate the Fifth Circuit’s stay order.

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Dated: June 24, 2026

ELIZABETH B. PRELOGAR

EPHRAIM A. MCDOWELL

JOSHUA REVESZ

Cooley LLP

1299 Pennsylvania Ave., NW

Washington, DC 20004

(202) 842-7800

DENO HIMONAS

ELIZABETH W. SHARKEY

Wilson Sonsini

Goodrich & Rosati, PC

95 S. State Street, Suite 1000

Salt Lake City, UT 84111

(801) 401-8510

Respectfully submitted,

/S/ BRIAN M. WILLEN

BRIAN M. WILLEN

Counsel of Record

LAUREN GALLO WHITE

EDWARD P. PERCARPIO

Wilson Sonsini

Goodrich & Rosati, PC

31 W. 52nd Street, 5th Floor

New York, NY 10019

(212) 999-5800

bwillen@wsgr.com

LAURA LEE PRATHER

CATHERINE L. ROBB

MICHAEL J. LAMBERT

REID PILLIFANT

Haynes and Boone, LLP

98 San Jacinto Blvd., Suite 1500

Austin, Texas 78701

Counsel for Applicant CCIA

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