The U.S. Fifth Circuit Court of Appeals, based in New Orleans, Louisiana, has indicated it will reconsider a ruling on Texas's Securing Children Online Through Parental Empowerment (SCOPE) Act, a state age verification law adopted in 2023. Chief Judge Jennifer Walker Elrod granted a petition to consider the case en banc, meaning the full bench of judges on the circuit court will issue a ruling.

En Banc Review of SCOPE Act

The Fifth Circuit's decision to reconsider the ruling en banc was announced in a court filing last week. En banc proceedings involve all judges seated on the circuit court issuing a ruling on a particular case, especially if a prior proceeding did not meet the expectations of some parties. Such petitions are described as extremely rare.

The SCOPE Act, also identified as House Bill (HB) 18, was adopted and signed into law in 2023, with enforcement initiated on September 1, 2024. The law requires digital platforms to verify age and obtain verifiable parental consent before collecting personal data from minors or allowing them to create accounts. The SCOPE Act also mandates age verification for virtually all platform use. The office of Attorney General Ken Paxton, a Republican, interprets the law as primarily applying to "digital services that provide an online platform for social interaction between users that ... allow users to create a public or semi-public profile to use the service, and ... allow users to create or post content that can be viewed by other users of the service." This broad definition builds on existing state law created by HB 1181 and Senate Bill (SB) 2420.

The case challenging the constitutionality of the SCOPE Act comprises two consolidated suits: Computer and Communications Industry Association & NetChoice v. Paxton and Students Engaged in Advancing Texas et al. v. Paxton. Plaintiffs in both suits claim that the SCOPE Act violates the rights of adult web users, as the law attempts to regulate interactions platforms have with minors under the age of 18 while operating within the Texas digital space.

On October 28, 2026, Chief Judge Elrod ordered that a prior ruling on the case from over the summer was vacated. The order stated that the cause "shall be reheard by the court en banc with oral argument on a date hereafter to be fixed." The vacated ruling was a panel opinion issued on July 24, 2026, which had blocked a content filtering policy deemed to be in direct conflict with existing federal law, specifically Section 230 of the Communications Decency Act of 1996. Vacatur removes the panel decision as the court’s operative precedent while the en banc court considers the appeals. It does not decide the constitutionality of the challenged Texas provisions. The clerk will set supplemental briefing, and the court will hear argument on a later schedule.

Broader Implications for Digital Platforms and Section 230

Section 230 is widely regarded as the "First Amendment of the internet" and has been central to lawsuits challenging age verification laws. This includes challenges to HB 1181 and SB 2420. The recent Elrod ruling, nonetheless, vacates the July 24 opinion. The consolidated matters involve First Amendment objections brought by technology-industry and student plaintiffs. Because the rehearing order is procedural, the parties’ merits positions remain unresolved in the Fifth Circuit. Any existing district-court orders are governed by their own terms unless altered by a further appellate order.

The SCOPE Act also covers "digital services such as message boards, chat rooms, video channels, or a main feed that presents users [with] content created and posted by other users," according to Paxton's office.

Corey Silverstein, an attorney representing adult entertainment clients, stated that this case and its latest developments warrant close attention from industry members. Silverstein noted a "substantial risk that the full Fifth Circuit will reverse or significantly narrow the panel’s Section 230 ruling." He added that granting rehearing signals that a majority of the active judges want to revisit the decision, though it does not establish how they will ultimately vote.

For the adult industry, Silverstein indicated that the concern extends beyond this particular Texas law. He explained that a ruling narrowing Section 230 protection for content moderation could encourage other states to impose their own filtering mandates. Silverstein advised taking the threat of an adverse ruling seriously, while recognizing that Texas still faces meaningful legal obstacles.

Precedent and Related Texas Legislation

AVN previously reported on HB 1181, an age verification bill that explicitly targets adult entertainment websites with website-level age-gating requirements. This prompted the Free Speech Coalition, an adult industry trade group, to sue Attorney General Paxton and the state of Texas alongside the parent companies of major adult tube websites. That case reached the U.S. Supreme Court, where the conservative majority of the high court ruled that age verification targeting pornography websites was constitutional.

AVN also reported on SB 2420, known as the App Store Accountability Act. This legislation was additionally sent to the Supreme Court on the emergency docket but was denied.

Key Facts

  • The U.S. Fifth Circuit Court of Appeals will reconsider a ruling on Texas's SCOPE Act en banc.
  • Chief Judge Jennifer Walker Elrod granted the petition for en banc review on October 28, 2026.
  • The SCOPE Act, adopted in 2023 and enforced September 1, 2024, mandates age verification and parental consent for minors on digital platforms.
  • The en banc review vacates a July 24, 2026, panel opinion that blocked a content filtering policy in conflict with Section 230 of the Communications Decency Act.
  • The case involves consolidated challenges from the Computer and Communications Industry Association & NetChoice and Students Engaged in Advancing Texas.
  • Attorney Corey Silverstein advises the adult industry to closely monitor the case due to potential implications for Section 230 and content moderation.