NetChoice, LLC v. Jonathan Skrmetti

RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 26a0250p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ┐ NETCHOICE, LLC, │ Plaintiff-Appellant, │ │ v. > No. 25-5660 │ │ JONATHAN THOMAS SKRMETTI, in his official capacity │ as the Tennessee Attorney General & Reporter, │ Defendant-Appellee. │ ┘ Appeal from the United States District Court for the Middle District of Tennessee at Nashville. No. 3:24-cv-01191—Eli J. Richardson, District Judge. Argued: February 4, 2026 Decided and Filed: August 28, 2026 Before: BATCHELDER, CLAY, and RITZ, Circuit Judges. _________________ COUNSEL ARGUED: Erin E. Murphy, CLEMENT & MURPHY, PLLC, Alexandria, Virginia, for Appellant. J. Matthew Rice, OFFICE OF THE TENNESSEE ATTORNEY GENERAL & REPORTER, Nashville, Tennessee, for Appellee. ON BRIEF: Scott A. Keller, LEHOTSKY KELLER COHN LLP, Washington, D.C., Joshua P. Morrow, LEHOTSKY KELLER COHN LLP, Austin, Texas, for Appellant. J. Matthew Rice, Matthew D. Cloutier, OFFICE OF THE TENNESSEE ATTORNEY GENERAL & REPORTER, Nashville, Tennessee, Thomas McCarthy, Cameron T. Norris, CONSOVOY MCCARTHY, PLLC, Arlington, Virginia, for Appellee. Aaron Mackey, ELECTRONIC FRONTIER FOUNDATION, San Francisco, California, Kevin A. Golembiewski, OFFICE OF THE FLORIDA ATTORNEY GENERAL, Tallahassee, Florida, James R. Marsh, MARSH LAW FIRM PLLC, New York, New York, for Amici Curiae. BATCHELDER, J., delivered the opinion of the court in which RITZ, J., concurred. CLAY, J. (pp. 22–31), delivered a separate dissenting opinion.  No. 25-5660 NetChoice, LLC v. Skrmetti Page 2 _________________ OPINION _________________ ALICE M. BATCHELDER, Circuit Judge. Plaintiff NetChoice, LLC, a trade association of internet companies, sought a preliminarily injunction barring Defendant Tennessee Attorney General and Reporter Jonathan Skrmetti’s enforcement of Tennessee’s Protecting Children from Social Media Act (“The Act”), Tenn. Code §§ 47-18-5701–5706. At its core, The Act requires social-media companies to verify the ages of their prospective account holders and, if a prospective account holder is a minor, obtain parental consent before allowing the minor to become an account holder. Id. § 47-18-5703(a). According to NetChoice, its members now face unrecoverable statutory-compliance costs and stand to have their and their users’ freedom of speech abridged by Skrmetti’s enforcement of The Act. The district court denied NetChoice’s motion for a preliminary injunction, finding that NetChoice had not shown irreparable harm to its members at this juncture. NetChoice v. Skrmetti, No. 3:24-CV-01191, 2025 WL 1710228, at *14–15 (M.D. Tenn. June 18, 2025). In particular, the district court deemed NetChoice’s members’ alleged loss of First Amendment freedoms insufficiently imminent and certain. Id. at *9–12. And the court dismissed outright NetChoice’s assertion of irreparable harm from unrecoverable statutory-compliance costs. Id. at *12–14. Having found an absence of this dispositive factor, the district court denied the motion without considering the other preliminary-injunction factors. Id. at *14–15. We cannot agree with the district court’s survey of NetChoice’s claimed irreparable harm. The kinds of harm asserted by NetChoice meet our threshold requirement of irreparability. See Commonwealth v. Biden, 57 F.4th 545, 556 (6th Cir. 2023) (unrecoverable compliance costs); Roman Cath. Diocese of Brooklyn v. Cuomo, 592 U.S. 14, 19 (2020) (loss of First Amendment freedoms). And while the asserted “injury ‘must be both certain and immediate,’ not ‘speculative or theoretical,’” D.T. v. Sumner Cnty. Schs., 942 F.3d 324, 327 (6th Cir. 2019) (citation omitted), it need not be already underway before a movant may seek preliminary relief, particularly when the alleged harm takes the form of deterred or chilled speech. Here, the Act’s enforcement mechanism, combined with Skrmetti’s statements made in  No. 25-5660 NetChoice, LLC v. Skrmetti Page 3 the course of this litigation, indicate that NetChoice’s alleged harm—if arising from an actual violation of its members’ rights—is “likely, not remediable at final judgment, and immediate.” Fischer v. Thomas (“Fischer II”), 78 F.4th 864, 868 (6th Cir. 2023). The district court’s assessment to the contrary was an abuse of discretion. But a facial (or, in the case of the alleged First Amendment harm, theoretical) showing of irreparable harm is not the end of the road. Unrecoverable compliance costs may satisfy a threshold finding of irreparable harm, but “the peculiarity and size of a harm affects its weight in the equitable balance . . . .” Biden, 57 F.4th at 556 (citations omitted). And irreparable harm can arise from the loss of First Amendment freedoms only insofar as those First Amendment freedoms were actually lost. In other words, this latter form of irreparable harm is intimately bound up with the movant’s showing on the first preliminary-injunction factor: likelihood of success on the merits. See Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998). Further, NetChoice must address the remaining factors (the balance of the equities and the public interest), and the court must still “weigh the strength of the four factors against one another.” D.T., 942 F.3d at 326. Finally, any remedy to which NetChoice is entitled must be “tailored to redress [its] particular injury.” See Ohio v. Becerra, 87 F.4th 759, 784 (6th Cir. 2023) (quoting Gill v. Whitford, 585 U.S. 48, 73 (2018)). But the district court did not reach these steps. Because the first consideration of a challenge to a novel statute is normally not the province of this court, see Fair Hous. Ctr. of Metro. Detroit v. Singh Senior Living, LLC, 124 F.4th 990, 993 (6th Cir. 2025), we VACATE the district court’s order denying NetChoice’s motion for a preliminary injunction and REMAND for further consideration of that motion consistent with this decision. I. A. Social Media and Minors The State of Tennessee is one of many states concerned about its minor residents’ wellbeing as social media becomes an ever more pervasive part of those minors’ lives.1 1See, e.g., NetChoice, LLC v. Fitch, 606 U.S. ---, 145 S. Ct. 2658 (2025) (Mississippi); NetChoice, LLC v. Yost, 180 F.4th 268 (6th Cir. 2026) (Ohio); Comput. & Commc’ns Indus. Ass’n v. Uthmeier, No. 25-11881, 2025  No. 25-5660 NetChoice, LLC v. Skrmetti Page 4 According to Attorney General Skrmetti, “children’s constant access to social media has fueled a crisis.” Appellee Skrmetti’s Br. at 1. He asserts that minors’ use of social media has “displaced [their] . . . in-person socializing, schoolwork, sleep, sports, reading, and other hobbies”; “warped [their] social development”; “allow[ed] for lurking, bullying, and anonymous hostilities”; “reduc[ed] kids’ attention spans”; “produced ‘a dramatic increase in teen mental illness’”; “catalyzed youth suicides”; and become “a powerful tool [for sexual predators] to lure, groom, sextort, and otherwise victimize kids.” Id. at 5–8 (citations omitted). Skrmetti’s briefing before this court contends that some or all of these troubling trends are confirmed by “[m]ountains of research.” Id. at 6 (citation omitted). NetChoice challenges the quality of Skrmetti’s evidence. See Appellant NetChoice’s Reply Br. at 28. For example, it argues that “[m]ost prior research to date” on the effects of social media “has been correlational,” id. (quoting Surgeon General Report, R. 30-14, PageID 452, 459), and characterizes one of the key pieces of Skrmetti’s evidence as “supported by only speculative assertions,” id. (citing Kristopher E. Kaliebe Decl., R. 28, PageID 235–39, 243, 245, 253). Alternatively, NetChoice argues that, even if Skrmetti’s cited sources do establish that certain social media websites are harmful, the sources should be understood to demonstrate harm only for the specific websites actually evaluated in each source and not for the “significant fraction” of regulated websites which have not been specifically addressed. Id. B. The Protecting Children from Social Media Act In response to what they saw as significant harm to the state’s minor citizens, Tennessee’s elected representatives passed and its Governor signed The Act. See Tenn. Code. §§ 47-18-5701–5706. The Act applies to “social media compan[ies],” defined as “interactive computer service[s] . . . that provide[] a social media platform”: a “website or internet WL 3458571 (11th Cir. Nov. 25, 2025) (Florida); NetChoice, LLC v. Bonta (Bonta II), 170 F.4th 744, (9th Cir. 2026) (California); Comput. & Commc’ns Indus. Ass’n v. Paxton, 747 F. Supp. 3d 1011 (W.D. Tex. 2024) (Texas); NetChoice, LLC v. Reyes, 748 F. Supp. 3d 1105 (D. Utah 2024) (Utah); NetChoice, LLC v. Griffin, No. 5:23-CV- 5105, 2025 WL 978607 (W.D. Ark. Mar. 31, 2025) (Arkansas); NetChoice v. Skrmetti, No. 3:24-CV-01191, 2025 WL 1710228 (M.D. Tenn. June 18, 2025) (Tennessee); NetChoice v. Carr, 789 F. Supp. 3d 1200 (N.D. Ga. 2025) (Georgia); NetChoice v. Weiser, 808 F. Supp. 3d 1223 (D. Colo. 2025) (Colorado); NetChoice v. Brown, No. CV RDB-25-0322, 2025 WL 3267786 (D. Md. Nov. 24, 2025) (Maryland); NetChoice v. Murrill, 812 F. Supp. 3d 594 (M.D. La. 2025) (Louisiana); NetChoice, v. Jones, 822 F. Supp. 3d 656 (E.D. Va. 2026) (Virginia); NetChoice v. Hilgers, --- F. Supp. 3d ----, No. 4:26-CV-3149, 2026 WL 1850018 (D. Neb. June 27, 2026) (Nebraska).  No. 25-5660 NetChoice, LLC v. Skrmetti Page 5 application” that “[a]llows a person to create an account” and “[e]nables an account holder to communicate with other account holders and users through posts.” Id. § 47-18-5702(8)–(9). “Post[s]” are defined as “content that an account holder makes available on a social media platform for other account holders and users to consume.” Id. § 47-18-5702(7). “Content” is defined in turn as “text, image, or video” but “[d]oes not include interactive gaming or educational entertainment.” Id. § 47-18-5702(2). The Act excludes from the definition of “[s]ocial media platform” certain entities, including broadband-internet providers and email platforms. Id. § 47-18-5702(9). At the core of The Act is an age-verification requirement aimed at securing parental consent for minors—unemancipated Tennesseans who are “[k]nown or reasonably believed by a social media platform to be under eighteen (18) years of age,” id. § 47-18-5702(4)—to create social media accounts. “A social media company shall verify the age of an individual who attempts to become an account holder, at the time the individual attempts to become an account holder.” Id. § 47-18-5703(a)(1). “If the individual is a minor, then the social media company must verify the express parental consent for the minor to become an account holder,” and the “social media company shall prohibit a minor from becoming an account holder” without that consent. Id. § 47-18-5703(a)(2). “Parent,” as defined by The Act, means a “parent, guardian, or person who has custody of, or person who has caregiving authority over, the minor.” Id. § 47- 18-5702(5). Parental consent may be revoked. Id. § 47-18-5703(b). The statute forbids social media companies and third parties from “retain[ing] personally identifying information that was used to verify age or parental consent.” Id. § 47-18-5703(c). The Act also requires social media companies to “provide a minor account holder’s parent with means for the parent to supervise the minor’s account.” Id. § 47-18-5704. Those means must include at minimum “options for the parent to view privacy settings on the account, set daily time restrictions, and implement breaks during which the minor cannot access the account.” Id. Waivers and limitations of the protections and requirements of The Act are prohibited as void, notwithstanding any contract or choice of law provision. Id. § 47-18-5706. Skrmetti, as Tennessee Attorney General and Reporter, has enforcement authority under The Act against any social media company which he “believes . . . is engaged in, has engaged in,  No. 25-5660 NetChoice, LLC v. Skrmetti Page 6 or is about to engage in an act or practice prohibited by [The Act],” so long as he believes “that proceedings would be in the public interest.” § 47-18-5705(a). The Act authorizes him (“supplementary to all other powers and remedies otherwise provided by law”) to conduct an investigation, bring a legal action against the social media company, and recover penalties and other relief, all in accordance with certain investigation and enforcement provisions of Tennessee’s Consumer Protection Act. Id. § 47-18-5705 (incorporating id. § 47-18-106 (investigation protocols), § 47-18-108 (enforcement protocols)). The potential penalties are not insignificant. Should Skrmetti succeed in an enforcement action, a court may enjoin the social media company’s “unlawful” activities, require a form of restitution against harmed persons, temporarily or permanently revoke the company’s business-operating license, levy civil penalties up to $1,000 per violation, and award to the State reasonable costs and expenses—including attorney’s fees—of both the investigation and the enforcement action. Id. § 47-18-108(a)–(b). Subsequent knowing violations of a previous injunction carry a civil penalty up to $2,000 per violation. Id. § 47-18-108(c). C. NetChoice’s Challenge NetChoice, a trade association of internet companies, brought this suit on October 3, 2024, to stop enforcement of The Act. NetChoice’s members operate several websites that NetChoice claims are “social media websites” as defined by The Act: Automattic’s Tumblr; Discord; Dreamwidth; Meta’s Facebook, Instagram, and Threads; Nextdoor; Pinterest; Reddit; Snap Inc.’s Snapchat; X; and Google’s YouTube. Appellant NetChoice’s Br. at 6–7, 7 n.2 (citation modified). NetChoice represents that its “members’ websites publish, disseminate, display, compile, create, curate, and distribute a wide range of valuable and protected expression.” Decl. of NetChoice Gen. Couns. Bartlett Cleland, R. 8-2, PageID 61. Seeking declaratory and injunctive relief under 28 U.S.C. § 2201 and 42 U.S.C. § 1983, NetChoice’s complaint argues that The Act abridges the freedom of speech enshrined in the First Amendment and applied against the states by the Fourteenth Amendment to the United States Constitution. NetChoice also invokes the “void for vagueness” doctrine, arguing that The Act’s coverage provision is incompatible with due process. At the same time as their filing of the complaint, NetChoice moved for a preliminary injunction of Skrmetti’s enforcement of The Act.  No. 25-5660 NetChoice, LLC v. Skrmetti Page 7 The Act went into effect on January 1, 2025, at which point NetChoice’s motion remained pending. After the judge assigned to the case recused himself, NetChoice renewed its motion for a preliminary injunction on January 16, and this time supplemented it with a motion for a temporary restraining order (“TRO”). The newly assigned judge denied NetChoice’s TRO and preliminary-injunction motions on February 14 and June 18, respectively. See Skrmetti, 2025 WL 1710228, at *1, *5. NetChoice appeals from the latter denial. II. “Four factors determine when a court should grant a preliminary injunction: (1) whether the party moving for the injunction is facing immediate, irreparable harm, (2) the likelihood that the movant will succeed on the merits, (3) the balance of the equities, and (4) the public interest.” D.T., 942 F.3d at 326 (citing Benisek v. Lamone, 585 U.S. 155, 158 (2018) (per curiam)). “We review a district court’s decision to deny a preliminary injunction under an abuse-of-discretion standard. But that can be misleading. While we apply deferential review to a district court’s fact findings and its ultimate judgment about whether to grant the preliminary injunction, we treat a mistake of law as an abuse of discretion.” PCC Airfoils, LLC v. Daugherty, 176 F.4th 509, 512 (6th Cir. 2026) (citations omitted). In effect, “we review the law de novo, the facts for clear error, and the district court’s remedial decision for an abuse of discretion.” U.S. Sportsmen’s All. Found. v. Ctrs. for Disease Control & Prevention, 167 F.4th 813, 818 (6th Cir. 2026) (citation omitted). In its decision, the district court identified an apparent tension between “[p]ublished Sixth Circuit case law [that] stands unmistakably for the proposition that these four items are factors rather than requirements,” Skrmetti, 2025 WL 1710228, at *5 n.11 (citing D.T., 942 F.3d at 326– 27), and other cases that “describe these as all being requirements,” id. (citing D.T., 942 F.3d at 328–29 (Nalbandian, J., concurring)). Judge Nalbandian’s concurrence in D.T. expounds upon this point, contrasting this court’s usual refrain that “these are factors to be balanced, not prerequisites to be met,” D.T., 942 F.3d at 328 (citation modified), with the Supreme Court’s articulation of the preliminary-injunction inquiry: “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor,  No. 25-5660 NetChoice, LLC v. Skrmetti Page 8 and that an injunction is in the public interest,” id. (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). Judge Nalbandian concludes his concurrence by acknowledging “our prevailing caselaw” favoring the balancing approach but “question[ing] whether the balancing analysis itself aligns with Winter.” Id. at 329. The district court took a different approach: “The Court believes that it needs to choose between the two approaches . . . . And the Court believes that it should follow the latter line of cases, i.e., those that treat the standard as involving requirements rather than factors.” Skrmetti, 2025 WL 1710228, at *5 n.11. Perhaps this is the correct reading of Winter, or perhaps this Circuit’s cases applying Winter have the correct view. See, e.g., PCC Airfoils, 176 F.4th at 513 (“A strong showing as to one factor may ‘outweigh[ ]’ a weaker showing as to another factor.” (quoting Winter, 555 U.S. at 23–24)). But “vertical stare decisis is absolute.” Ramos v. Louisiana, 590 U.S. 83, 124 n.5 (2020) (Kavanaugh, J., concurring in part). Nor can we overrule this court’s prior holdings applying Winter; only the Supreme Court or this court sitting en banc may do so. Wright v. Spaulding, 939 F.3d 695, 700 (6th Cir. 2019). And our current standard is clear: “[t]he preliminary injunction factors do not represent a list of ‘prerequisites to be met,’” and only when a movant utterly fails to satisfy one of the first two factors—likelihood of success on the merits or irreparable harm—can we say that the preliminary injunction is unwarranted without consideration of the other factors or without balancing of the four in light of one another. PCC Airfoils, 176 F.4th at 513 (citation omitted). The district court correctly held that it is generally “‘well within its province’ when it denies a preliminary injunction based solely on the lack of an irreparable injury.” Skrmetti, 2025 WL 1710228, at *14 (quoting D.T., 942 F.3d at 327). But, for the reasons laid out below, its assessment of NetChoice’s irreparable injury resulted in an abuse of discretion. Because our decision today encompasses only that factor, the district court must assess and weigh the remaining factors on remand. Irreparable harm is an “indispensable” part of a successful motion for a preliminary injunction. D.T., 942 F.3d at 327. In assessing this factor, we “ask[] whether, without an injunction, a plaintiff will likely suffer harm before final judgment that cannot be remedied at final judgment.” Fischer II, 78 F.4th at 868. In other words, NetChoice “must show harm that is  No. 25-5660 NetChoice, LLC v. Skrmetti Page 9 likely, not remediable at final judgment, and immediate.” Id.; see also D.T., 942 F.3d at 327 (“To merit a preliminary injunction, an injury ‘must be both certain and immediate,’ not ‘speculative or theoretical.’” (citation omitted)). If NetChoice fails this test, then “there’s no need to grant relief now as opposed to at the end of the lawsuit.” D.T., 942 F.3d at 327. NetChoice advances two forms of irreparable harm that its members will suffer because of Skrmetti’s enforcement of The Act: unrecoverable statutory-compliance costs and loss of First Amendment liberties. We address each in turn. A. Statutory Compliance Costs “[C]omplying with a regulation later held invalid almost always produces the irreparable harm of nonrecoverable compliance costs.” Biden, 57 F.4th at 556 (quoting Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 220–21 (1994) (Scalia, J., concurring in part)). This court has repeatedly recognized that unrecoverable compliance costs are sufficient to satisfy our baseline expectation of irreparable harm. See e.g., id. at 555–56; Tennessee v. Dep’t of Educ., 104 F.4th 577, 613 (6th Cir. 2024) (motion for a preliminary injunction); Kentucky v. EPA, No. 23-3216, 2023 WL 11871967, at *4 (6th Cir. July 25, 2023) (order) (motion to stay enforcement pending appeal); In re MCP No. 185, No. 24-7000, 2024 WL 3650468, at *4 (6th Cir. Aug. 1, 2024) (order) (motion to stay a final rule pending review). “We recognize that some of our sister circuits have held that compliance costs do not qualify as irreparable harm because they commonly result from new government regulation.” Biden, 57 F.4th at 556 (citing Freedom Holdings, Inc. v. Spitzer, 408 F.3d 112, 115 (2d Cir. 2005); Am. Hosp. Ass’n v. Harris, 625 F.2d 1328, 1331 (7th Cir. 1980); A.O. Smith Corp. v. FTC, 530 F.2d 515, 527 (3d Cir. 1976)). “But in our view, the peculiarity and size of a harm affects its weight in the equitable balance, not whether it should enter the calculus at all.” Id. (citing Nat’l Fed’n of Indep. Bus. v. Dep’t of Lab., Occupational Safety & Health Admin., 595 U.S. 109, 120 (2022); Thunder Basin, 510 U.S. at 220–21 (Scalia, J., concurring in part)). This makes sense. Preliminary injunctions help prevent Pyrrhic victories. If a plaintiff is forced into costly compliance for which there is no recourse at the end of its successful litigation, then that litigation is, at least in part, in vain. Here, NetChoice alleges that at least two of its  No. 25-5660 NetChoice, LLC v. Skrmetti Page 10 members—Nextdoor and Dreamwidth—face such costs. See Decl. of Nextdoor Head of Customer Experience Gautham Pai, R. 8-3, PageID 81–83 (alleging that, among other effects of The Act, the estimated cost of identifying a potential user’s identity would “dwarf” Nextdoor’s average quarterly revenue per user); Decl. of Dreamwidth Co-Owner Denise Paolucci, R. 8-4, PageID 89, 92, 98 (alleging that compliance with The Act will require additional staffing or third-party support for which Dreamwidth does not have the financial capacity). And NetChoice contends that, should it prevail on the merits of its case, its members would not be able to recover compliance costs from Tennessee “because the State has sovereign immunity.” Appellant NetChoice’s Br. at 29. We see no reason why these harms should not “weigh[] in the equitable balance.” Biden, 57 F.4th at 556. The district court erroneously interpreted Biden as “declin[ing] to disagree with multiple other circuits that have held that (at least in the particular circumstances there involved) compliance costs (including unrecoverable compliance costs) fail to qualify as irreparable harm because compliance costs ‘commonly result from new government regulation.’” Skrmetti, 2025 WL 1710228, at *14 (citation omitted). In other words, the district court read Biden as affirming the out-of-circuit decisions in Freedom Holdings, American Hospital Association, and A.O. Smith, and requiring NetChoice to show some other “particular circumstances” beyond the imposition of “mere ‘ordinary compliance costs.’” Id. (quoting Freedom Holdings, 408 F.3d at 115). But this is not what we said in Biden. We acknowledged the Second, Third, and Seventh Circuit’s prior cases addressing irreparable harm but explicitly disagreed with those decisions: “But in our view, the peculiarity and size of a harm affects its weight in the equitable balance, not whether it should enter the calculus at all.” Biden, 57 F.4th at 556 (emphasis added). Nor was Biden invoking non-irreparable harm in this holding. Contra Skrmetti, 2025 WL 1710228, at *13. The context of Biden’s holding reveals that the “harm” there means irreparable harm: The preceding sentences discuss other circuit’s treatment of unrecoverable compliance costs as “irreparable harm,” and the citations that follow refer to the Supreme Court’s consideration of the same. See Biden 57 F.4th at 556 (emphasis added). In sum, NetChoice’s alleged compliance costs—even if common and small—are irreparable and enter the preliminary-injunction balance.  No. 25-5660 NetChoice, LLC v. Skrmetti Page 11 Skrmetti offers a few reasons why we should not credit NetChoice’s unrecoverable compliance costs as irreparable harm. None of them demonstrates a lack of irreparable harm, at least not a complete lack. First, Skrmetti argues that “NetChoice cannot prove compliance costs for non-compliant social-media companies.” Appellee Skrmetti’s Br. at 30. But our irreparable- harm inquiry asks whether the harm “is likely, not remediable at final judgment, and immediate,” Fischer II, 78 F.4th at 868, not whether it has already occurred. As is often the case in a pre- enforcement challenge, the party seeking a preliminary injunction faces unrecoverable compliance costs or the penalty of noncompliance. In this pre-enforcement-challenge posture, it makes little sense to expect NetChoice actually to incur unrecoverable compliance costs before we credit those costs as irreparable harm. Second, Skrmetti posits that “[a] vague statement from ‘[o]ne member’ hardly qualifies as a clear showing that ‘each NetChoice covered member’ would face ‘great expense.’” Appellee Skrmetti’s Br. at 30 (quoting Appellant NetChoice’s Br. at 29). This point is well taken, to an extent. As we recognized in Biden, “the peculiarity and size of a harm affects its weight in the equitable balance.” 57 F.4th at 556. But this does not mean that NetChoice fails to demonstrate any irreparable harm. See PCC Airfoils, 176 F.4th at 514 (“Instead of creating a heightened standard of evidentiary proof for each factor individually, the ‘clear showing’ phrase clarifies that, on balance, the four preliminary injunction factors must clearly weigh in the plaintiff's favor to qualify for injunctive relief.”). As we see it, NetChoice provides sufficient evidence that at least two of its members, Nextdoor and Dreamwidth, will likely incur unrecoverable compliance costs, perhaps even significant costs. Nextdoor provides an actual cost estimate. And while Dreamwidth’s assertion is less defined, it is not speculative, particularly since “complying with a regulation later held invalid almost always produces the irreparable harm of nonrecoverable compliance costs.” Biden, 57 F.4th at 556 (citation modified). For these members, the district court should have considered their compliance costs as irreparable harm in the equitable balance, but only insofar as the harm’s proven weight warranted. See, e.g., In re MCP No. 185, 2024 WL 3650468, at *4 (acknowledging the government’s estimation that the stay-petitioners’ compliance costs were “small relative to the rule’s overall benefits,” but still determining a stay was warranted because the petitioners were likely to succeed on the merits).  No. 25-5660 NetChoice, LLC v. Skrmetti Page 12 Third, Skrmetti contends that NetChoice’s members should have already incurred the at- issue costs in compliance with other statutes. In particular, Skrmetti points to Nextdoor’s and Dreamwidth’s terms of service, in which they ostensibly require parental consent for potential users under the age of 13 (or forbid those potential users outright) pursuant to the Federal Trade Commission’s (FTC) Children’s Online Privacy Protection Rule (COPPA). But COPPA differs markedly from The Act. The Act requires covered social media companies to “verify the age” of potential account holders. Tenn. Code § 47-18-5703(a)(1). COPPA makes it “unlawful for any operator of a website or online service directed to children, or any operator that has actual knowledge that it is collecting or maintaining personal information from a child, to collect personal information from a child in a manner that violates the regulations prescribed” by the rule. 16 C.F.R. § 312.3 (emphasis added); see also id. § 312.2 (creating further exceptions for “mixed audience website[s],” which need only determine whether their visitors are under the age of 13 using means “reasonably calculated, in light of available technology,” to accomplish that end). The FTC admits that COPPA will not “prevent children from lying about their age to register for general audience sites or online services whose terms of service prohibit their participation.” Complying with COPPA: Frequently Asked Questions, FED. TRADE COMM’N (last modified Jan. 2025), https://www.ftc.gov/business-guidance/resources/complying-coppa- frequently-asked-questions (last visited Aug. 26, 2026). Since we see daylight between Nextdoor’s and Dreamwidth’s presumed compliance under COPPA and their expected compliance under The Act, alleged compliance with the former does not eliminate the cost of complying with the latter. Finally, Skrmetti argues that the alleged compliance costs are not actually unrecoverable because NetChoice can sue Tennessee’s officials for damages under 42 U.S.C § 1983. According to Skrmetti, this traps NetChoice in a catch-22: NetChoice’s damages are unrecoverable only if Tennessee’s officials are entitled to qualified immunity, which in turn requires “that no ‘clearly established’ law prohibits enforcement of [T]he Act.” Appellee Skrmetti’s Br. at 31 (quoting Pearson v. Callahan, 555 U.S. 223, 232 (2009)). And NetChoice must prove that it is likely to succeed on the merits, which, in Skrmetti’s view, requires a “clear showing” of that likelihood. Id. (quoting Enchant Christmas Light Maze & Mkt. Ltd. v. Glowco, LLC, 958 F.3d 532, 539 (6th Cir. 2020)).  No. 25-5660 NetChoice, LLC v. Skrmetti Page 13 This argument fails for two reasons. First, as we recently clarified in PCC Airfoils, the “clear showing” requirement applies to the overall balance of the four preliminary-injunction factors; it does not “creat[e] a heightened standard of evidentiary proof for each factor individually.” 176 F.4th at 514. Second, the clearly-established-law and likelihood-of-success inquiries speak to altogether different issues. “Put simply, qualified immunity protects ‘all but the plainly incompetent or those who knowingly violate the law.’” Mullenix v. Luna, 577 U.S. 7, 12 (2015) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). Our focus in the qualified-immunity analysis is notice. “Look[ing] to the decisions of the Supreme Court, and then to the case law of this circuit,” we ask whether a constitutional right was “clearly established at the time of the infringement” such that “a reasonable official would understand that what he is doing violates that right.” Gragg v. Ky. Cabinet for Workforce Dev., 289 F.3d 958, 964 (6th Cir. 2002) (citation modified). On the other hand, a court assessing a preliminary-injunction movant’s likelihood of success on the merits need not limit itself to enjoining activity that is apparently unlawful “in the light of pre-existing law.” See id. (citation omitted). To the extent these qualitatively different analyses can be stacked against one another, likelihood of success is a lower threshold than actual success, see Dutton v. Shaffer, 171 F.4th 858, 879 (6th Cir. 2026), which is in turn a lower threshold than proving clearly established law. Skrmetti also misplaces his reliance on L. W. by & through Williams v. Skrmetti, 83 F.4th 460 (6th Cir. 2023), aff’d sub nom. United States v. Skrmetti, 605 U.S. 495 (2025). There, we held that the plaintiff sought to “[c]onstitutionaliz[e] new areas of American life,” “not something [that] federal courts should do lightly.” Id. at 471. Here, there is nothing particularly groundbreaking about NetChoice’s constitutional arguments against The Act. Applying established constitutional rights to new facts does not “extend the constitutional guarantees to new territory” as contemplated by L.W. See id. The question is whether NetChoice can demonstrate a likelihood of success or even actual success on the merits without creating a sea change in constitutional law (at least on the magnitude of recognizing new constitutional rights) on the one hand or overcoming Tennessee officials’ qualified immunity on the other. Without judging the merits of NetChoice’s case, we think there is ample ground between these posts. At  No. 25-5660 NetChoice, LLC v. Skrmetti Page 14 the very least, the district court must first consider those merits arguments before making such a determination. In sum, the district court abused its discretion when it discredited outright assertions of irreparable harm from unrecoverable compliance costs made by at least two NetChoice members. These costs “weigh[] in the equitable balance” to the extent that their proven weight deserves. See Biden, 57 F.4th at 556. On remand, the district court should also consider whether unrecoverable compliance costs may sustain an injunction only for the members that actually allege them. See Becerra, 87 F.4th at 783–84 (limiting preliminary injunctive relief to the “only plaintiff . . . that provided the requisite facts and affidavits” to demonstrate irreparable harm); see also Gill, 585 U.S. at 73 (“A plaintiff’s remedy must be tailored to redress the plaintiff’s particular injury.” (citation omitted)). B. Freedom of Speech NetChoice also maintains that its members face irreparable harm from The Act’s foreseeable abridgement of their freedom of speech. “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Roman Cath. Diocese, 592 U.S. at 19 (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality opinion)). Still, the First Amendment is not an irreparable-harm talisman; the alleged harm must still be “likely, not remediable at final judgment, and immediate,” Fischer II, 78 F.4th at 868, though, as a rule, a restriction on the present or imminent exercise of one’s rights satisfies the second requirement, cf. id. at 868–69 (finding no irreparable harm arising from the prosecution of past speech because damages would be sufficient recompense for an erroneous prosecution and because there was no chance that the prosecution would chill the future exercise of the right during the course of the litigation); Hess v. Oakland Cnty., 174 F.4th 981, 995–96 (6th Cir. 2026) (similar). So long as the plaintiff’s loss of First Amendment freedoms is “‘both certain and immediate,’ not ‘speculative or theoretical,’” D.T., 942 F.3d at 327 (citation omitted), we presume irreparable harm. In assessing the certainty and immediacy of the loss of a plaintiff’s freedom of speech, we generally ask whether the plaintiff wants to speak “‘now’ rather than at some unknown future  No. 25-5660 NetChoice, LLC v. Skrmetti Page 15 date” “well into the future.” Defending Educ. v. Olentangy Loc. Sch. Dist. Bd. of Educ., 158 F.4th 732, 760–61 (6th Cir. 2025) (citation omitted); see also Fischer II, 78 F.4th at 868 (finding no immediate harm from a campaign-speech restriction when there was no looming election). We also consider whether the purported restriction actually hampers the plaintiff’s speech. See Moms for Liberty - Wilson Cnty., Tennessee v. Wilson Cnty. Bd. of Educ., 155 F.4th 499, 516 (6th Cir. 2025) (finding no irreparable harm from two purported speech restrictions that were “no longer operative” and for which the plaintiffs had “offer[ed] no evidence indicating that either might be reinstituted and applied in the future”). But we do so keeping in mind that a restriction may violate the freedom of speech through actual enforcement and its chilling effect. See Hess, 175 F.4th at 995–96. The district court held that NetChoice’s purported First Amendment harms did not qualify as irreparable harm because Skrmetti’s enforcement of The Act—and by extension the chilling effect of its potential enforcement—was insufficiently certain and immediate. Skrmetti, 2025 WL 1710228, at *9–12. In reaching this conclusion, the court looked for guidance from our caselaw addressing Article III standing in the context of a pre-enforcement statutory challenge. See id. at *10. In that comparable inquiry, we determine whether the plaintiff faces a “credible threat of enforcement” by asking whether the plaintiff alleges “chill[ed] speech” and considering four factors: (1) Does the relevant prosecuting entity have a prior history of enforcing the challenged provision against the plaintiffs or others? (2) Has that entity sent warning letters to the plaintiffs regarding their conduct? (3) Does the challenged regulatory regime make enforcement easier or more likely? and (4) Did the prosecuting entity refuse to disavow enforcement of the challenged provision against the plaintiffs? Fischer v. Thomas (“Fischer I”), 52 F.4th 303, 307; see also McKay v. Federspiel, 823 F.