Texas app store case offers states a path to protect children online

Does the U.S. Constitution prevent state laws allowing parents to be involved in their children’s choices to enter into contracts in app stores? We have argued that carefully crafted laws can ensure that parents are involved and children are protected in app stores without limiting anyone’s freedom of speech. Some recent developments in a Texas lawsuit provide support for this argument.

In 2025, Utah enacted an App Store Accountability Act. The bill allows parents – whose children are harmed when an app store contracts with children without the parents’ involvement – to bring an action for damages. Since that time, other states, like Alabama and Louisiana, have enacted similar laws.

Texas approved its app store law a few months after Utah’s. It was immediately challenged in federal court, and an initial order blocked the law from going into effect. The trial judge suggested the Texas app store regulation was analogous to a law barring children from entering a bookstore.

The state asked the U.S. Court of Appeals for the Fifth Circuit to allow its law to go into effect while the lawsuit was ongoing. The judges determined Texas could enforce its law while the case was pending because “the district court committed several reversible errors.”

The court explained:

App store transactions are commercial in nature. After all, users browsing an app store can see a catalog of applications, obtain additional information, and download or purchase an application. App listings propose commercial transactions, regardless of whether any monetary payment is made. In fact, the “payment” for apps that are purportedly “free” is access to user data and private information.

Any minor who downloads an app must accept its terms of service, including agreements about how the minor’s data is used. Some terms require minors to waive the right to sue by agreeing to “arbitration pr[o]visions that no child can understand.” Detailed user data, including that of minors, is the lifeblood of the app store monetization ecosystem. Because, at most, intermediate scrutiny applies to this commercial speech, Texas need only establish a “reasonable fit” between its goal and corresponding restrictions without needing to satisfy “a least-restrictive-means requirement.”

Even if the court were to assume that Texas law impacted some speech, the court said the law “likely directly and materially advances Texas’s substantial interest in protecting children’s data, safety, and privacy in a digital world.”

An industry association asked for an emergency stay at the U.S. Supreme Court. Justice Samuel Alito referred the decision to the entire court, and the justices affirmed the 5th Circuit’s decision. That decision did not require a written opinion, but the primary consideration in deciding whether to grant an emergency order is whether the party seeking the order is likely to succeed in its argument.

At the very least, this suggests Texas has a very good chance of convincing the courts that its law is constitutional.

The next step in this case is for the parties to present their oral arguments before a panel of judges on the 5th Circuit. Once the 5th Circuit rules, the losing party can appeal either to all of the judges on the 5th Circuit or to the U.S. Supreme Court.

The court decisions in this case will provide important direction to states about how to ensure parents and children can navigate technology safely and together. There is no reason that this protection and the protection of fundamental rights of free speech cannot coexist.

The task for the states and national government is to ensure these joint protections. The Texas case, so far, suggests it can be done.