To: Members of the Colorado General Assembly
From: NetChoice Litigation Center  
Date: April 28, 2025
Re: Constitutional Challenge to Senate Bill 25-086 Account Suspension and Termination Provisions  
This memorandum analyzes the constitutional issues of Senate Bill 25-086's provisions requiring social media platforms to suspend and terminate user accounts for certain "subject uses." We conclude that these provisions violate the First Amendment as impermissible content-based restrictions on speech that fail strict scrutiny analysis. Additionally, the law imposes unconstitutional prior restraints on speech and compels private actors to restrict protected expression in violation of established Supreme Court precedent.
The Account Suspension and Termination Provisions Constitute Content-Based Restrictions Subject to Strict Scrutiny
Contrary to the State's analysis, S.B. 25-086's account suspension and termination requirements constitute content-based restrictions that must be evaluated under strict scrutiny, not intermediate scrutiny. The law explicitly requires platforms to take action based on the content of user communications, as determinations about whether a user engaged in "subject uses" necessarily involve examining the substance of speech.
In Reed v. Town of Gilbert, the Supreme Court clarified that laws are content-based if they "appl[y] to particular speech because of the topic discussed or the idea or message expressed." 576 U.S. 155, 163 (2015). Under S.B. 25-086, there can be no question that the law is content-based because platforms must evaluate user content to determine if it constitutes a "subject use" that warrants account suspension or termination. This content-based distinction triggers strict scrutiny, which requires that the law be "narrowly tailored to serve compelling state interests." Id. at 163.[1]
The Law Fails Strict Scrutiny Analysis 
  

While protecting children and public safety are compelling governmental interests, S.B. 25-086 is not narrowly tailored to achieve these interests, and thus fails strict scrutiny.[2]
First, the bill's definitions of "subject uses" are overly broad and vague. Terms like "sexually exploitative material" could encompass a wide range of protected expression beyond illegal content, including artistic or educational materials. The Supreme Court has consistently held that restrictions on protected speech must be drawn with narrow specificity to avoid chilling protected expression. See Reno v. ACLU, 521 U.S. 844, 874 (1997).
Second, the law imposes a mandatory punishment—account termination—that is disproportionate to many potential violations. A user who posts a single questionable item, even mistakenly, could face complete removal from a platform that serves as a critical forum for contemporary discourse. In Packingham v. North Carolina, the Court emphasized the unique importance of social media as "the modern public square" where citizens engage in "a wide array of protected First Amendment activity." 582 U.S. 98, 105-106 (2017).
Because S.B. 25-086 requires account termination for violations, it effectively implements a system of prior restraints by permanently barring users from future expression on platforms based on past conduct. The Supreme Court has long recognized that prior restraints on speech bear "a heavy presumption against [their] constitutional validity." Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 558 (1976). Such permanent bans on accessing the “modern public square” are not narrowly tailored.
The Law Unconstitutionally Deputizes Private Actors as Roving Censors for the State
S.B. 25-086 compels private websites to restrict user speech in ways that violate established First Amendment principles. By mandating that platforms terminate accounts based on ambiguously defined "subject uses," the law forces websites to err on the side of censorship to avoid potential liability. This undermines the rights of individuals to access social media services where they can “speak and listen, and then, after reflection, speak and listen once more.” Packingham, 582 U.S. at 104. And it would restrict the editorial discretion of social media websites in determining what content and audience they wish to curate. Moody v. NetChoice, 603 U.S. 707 (2024) (holding that the First Amendment protects a website’s right of editorial discretion).
Other courts have likewise found that government intrusion on a website’s free choices related to its policies and their enforcement unconstitutionally violate the First Amendment. See X Corp. v. Bonta, 116 F.4th 888 (9th Cir., 2024).
Distinctions from Cases Cited in Support of the Bill
  

The State's reliance on precedent permitting restrictions on "speech integral to criminal conduct" is misplaced. That doctrine applies to direct speech acts that constitute crimes (such as solicitation or fraud), not to platforms that merely host user content. S.B. 25-086 improperly extends liability to platforms and forces them to remove users entirely from their services.
The State's attempt to distinguish Packingham is also unpersuasive. While Packingham involved a broader restriction, the Court's core concern was the unprecedented exclusion of individuals–even convicted sex offenders–from the "modern public square." Claiming that S.B. 25-086 would survive constitutional challenge reads Packingham far too narrowly. S.B. 25-086 raises similar concerns raised by the Packingham Court by mandating permanent exclusion from significant channels of communication based on potentially isolated violations. 
Nor does S.B. 25-086 require a criminal conviction to effectuate the permanent termination of an account. In this respect, S.B. 25-086 is far broader than the law at issue in Packingham. That broader application would necessarily chill more speech than the law in Packingham.
Even if the State were correct that intermediate scrutiny would apply, this bill represents yet another “prophylaxis upon prophylaxis approach” because laws already exist criminalizing the acts Colorado attempts to cover here. Accordingly, even under intermediate scrutiny, that is “a significant indicator that the regulation may not be necessary for the interest it seeks to protect.”  FEC v. Cruz, 596 U.S. 289, 306 (2022). 


CONCLUSION
Senate Bill 25-086's account suspension and termination provisions constitute unconstitutional content-based restrictions on speech that fail strict scrutiny analysis. The provisions also impose impermissible prior restraints on speech and unconstitutionally compel private platforms to restrict protected expression. We therefore recommend that the House uphold Governor Polis’ veto of SB 25-086.
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As always, we offer ourselves as a resource to discuss any of these issues with you in further detail, and  we appreciate the opportunity to provide you with our thoughts on this important matter.


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[1] Indeed, SB 25-086 is content-based at least three times over because it lists a content-based exception to the law, namely “shopping or e-commerce” and “news, sports, and entertainment.” A law’s content-based exceptions require analysis under strict scrutiny. See NetChoice v. Yost, 2025 U.S. Dist. LEXIS 72372 (S.D. Ohio, Apr. 16, 2025) (discussing content-based definitions and exceptions and applying strict scrutiny); NetChoice v. Griffin, 2025 U.S. Dist. LEXIS 61278 (similar).
[2] This memorandum assumes that Colorado could assert a compelling interest in protecting minors, but it is not clear that the removal requirements advance that goal given the provision does not limit violations to communications involving minors.