WLF Urges Supreme Court to Vacate Fifth Circuit Stay Allowing Texas to Enforce App Store Accountability Act

“The Fifth Circuit has licensed unprecedented governmental gatekeeping of online speech through private app stores.”
—Cory L. Andrews, WLF General Counsel & Vice President of Litigation

Click here for WLF’s brief.

(Washington, DC)— Washington Legal Foundation (WLF) today joined a coalition amicus brief urging the U.S. Supreme Court to vacate the U.S. Court of Appeals for the Fifth Circuit’s stay of the preliminary injunction against enforcement of Texas’s App Store Accountability Act. Amici contend that the Fifth Circuit wrongly recharacterized app stores as engaging solely in commercial speech. That holding threatens vast amounts of fully protected speech and allows a content-based law to take effect without full appellate review. WLF joined 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, Taxpayers Protection Alliance, and TechFreedom on the amicus brief.

The case stems from Texas Senate Bill 2420. The law requires app stores to verify every user’s age, affiliate minor accounts with parents or guardians, and obtain specific parental consent—with detailed disclosures—for each minor app download or in-app purchase. It also requires app stores to share age and consent data with developers. Developers must assign age ratings to apps and purchases and verify compliance using that data. On December 23, 2025, the district court enjoined the law as likely unconstitutional under the First Amendment. In June 2026 the Fifth Circuit stayed that injunction after one-sided briefing.

Amici argue that the Act is content-based both in its purpose and on its face. These features trigger strict scrutiny, which the law cannot survive. The amicus brief further contends that the Fifth Circuit’s commercial-speech holding, if left intact, would reclassify access to much of the internet as commercial speech subject to lesser protection. That result would impose heavy compliance costs on app stores and developers, chill innovation, and undermine consumer choice in the digital marketplace. The brief was drafted by Steven P. Lehotsky and Jeremy Evan Maltz of Lehotsky Keller Cohn LLP.