Over the last few years, it’s felt like the age verification debate has gotten progressively stupider. People keep insisting that it must be necessary, and when others point out that there are serious privacy and security concerns that will likely make things worse, not better, we’re told that we have to do it anyway.
Let’s head down under for just one example. Almost exactly a year ago, the Australian government released a report on age verification, noting that the technology was simply a privacy and security nightmare. At the time, the government felt that mandating such a technology was too dangerous:
“It is clear from the roadmap at present, each type of age verification or age assurance technology comes with its own privacy, security, effectiveness or implementation issues,” the government’s response to the roadmap said.
The technology must work effectively without circumvention, must be able to be applied to pornography hosted outside Australia, and not introduce the risk to personal information for adults who choose to access legal pornography, the government stated.
“The roadmap makes clear that a decision to mandate age assurance is not yet ready to be taken.”
That’s why we were a bit surprised earlier this year when the government announced a plan to run a pilot program for age verification. However, as we pointed out at the time, just hours after the announcement of that pilot program, it was revealed that a mandated verification database used for bars and clubs in Australia was breached, revealing sensitive data on over 1 million people.
You would think that might make the government pause and think more deeply about this. But apparently that’s not the way they work down under. The government is now exploring plans to officially age-gate social media.
The federal government could soon have the power to ban children from social media platforms, promising legislation to impose an age limit before the next election.
But the government will not reveal any age limit for social media until a trial of age-verification technology is complete.
The article is full of extremely silly quotes:
Prime Minister Anthony Albanese said social media was taking children away from real-life experiences with friends and family.
“Parents are worried sick about this,” he said.
“We know they’re working without a map. No generation has faced this challenge before.
“The safety and mental and physical health of our young people is paramount.
“Parents want their kids off their phones and on the footy field. So do I.”
This is ridiculous on all sorts of levels. Many families stay in touch via social media, so taking kids away from it may actually cut off their ability to connect with “friends and families.”
Yes, there are cases where some kids cannot put down phones and where obvious issues must be dealt with, as we’ve discussed before. But the idea that this is a universal, across-the-board problem is nonsense.
Hell, a recent study found that more people appeared to be going into the great outdoors because of seeing it glorified on social media. Some are worried that people are too focused on the great outdoors because it’s being overly glorified on social media.
Again, there’s a lot of nuance in the research that suggests this is not a simple issue of “if we cut kids off of social media, they’ll spend more time outside.” Some kids use social media to build up their social life which can lead to more outdoor activity, while some don’t. It’s not nearly as simple as saying that they’ll magically go outdoors and play sports if they don’t have social media.
Then you combine that with the fact that the Australian government knows that age verification is inherently unsafe, and this whole plan seems especially dangerous.
But, of course, politicians love to play into the latest moral panic.
South Australian Premier Peter Malinauskas said getting kids off social media required urgent leadership.
“The evidence shows early access to addictive social media is causing our kids harm,” he said.
“This is no different to cigarettes or alcohol. When a product or service hurts children, governments must act.”
Except, it’s extremely different than cigarettes and alcohol, both of which are actually consumed by the body and insert literal toxins into the bloodstream. Social media is speech. Speech can influence, but you can’t call it inherently a toxin or inherently good or bad.
The statement that “addictive social media is causing our kids harm” is literally false. The evidence is way more nuanced, and there remain no studies showing an actual causal relationship here. As we’ve discussed at length (backed up by multiple studies), if anything the relationship may go the other way, with kids who are already dealing with mental health problems resorting to spending more time on social media because of failures by the government to provide resources to help.
In other words, this rush to ban social media for kids is, in effect, an attempt by government officials to cover up their own failures.
The government could be doing all sorts of things to actually help kids. It could invest in better digital literacy, training kids how to use the technology more appropriately. It could provide better mental health resources for people of all ages. It could provide more space and opportunities for kids to freely spend time outdoors. These are all good uses of the government’s powers that tackle the issues they claim matter here.
Surveilling kids and collecting private data on them which everyone knows will eventually leak, and then banning them from spaces that many, many kids have said make their lives and mental health better, seems unlikely to help.
Of course, it’s only at the very end of the article linked above that the reporters include a few quotes from academics pointing out that age verification could create privacy and security problems, and that such laws could backfire. But the article never even mentions that the claims made by politicians are also full of shit.
The U.S. Seventh Circuit Court of Appeals has allowed Indiana’s age verification law to go into effect — even as the Supreme Court has suggested a similar law in Texas might be unconstitutional. The Seventh Circuit panel handed down this ruling, letting the law go into effect just weeks after the U.S. Supreme Court decided to take up a case challenging Texas’s nearly identical age verification law.
The high court just granted cert in that case, Free Speech Coalition et al v. Paxton. Free Speech Coalition (FSC), the trade group representing the adult content industry, sued Texas Attorney General Ken Paxton in a bid to block Texas’ HB 1181 law, which mandated age verification for adult content sites.
That law is quite similar to the one Indiana passed. In the Texas case, a split panel at the Fifth Circuit found HB 1181 to be constitutional, despite the Texas federal district court ruling that existing precedent made it clear that age verification mandates were unconstitutional. The Supreme Court agreed to review the 5th Circuit’s decision allowing the law to go into effect, but in the process they declined to block HB 1181 while litigation played out.
Indiana Attorney General Todd Rokita appealed the injunction to the Seventh Circuit. There, the majority opinion deferred to the Supreme Court’s allowance of Texas HB 1181 to stay in effect through the course of FSC v. Paxton as justification for the Indiana law to be enforced.
In other words, Indiana should be able to enforce its own law as well because SCOTUS is allowing Texas to enforce its law for now. The judges did this as a means to maintain “judicial efficiency.” They also put the case regarding the Indiana law on hold until the Supreme Court rules on Texas’ law.
While the judges concurred on staying the injunction against SB 17, Seventh Circuit Judge Illana D. Rovner dissented in part. Judge Rovner wasn’t convinced by Indiana’s argument that it was in the state’s interest to enforce the law, per the horrid precedent set by the Fifth Circuit, when it found age verification rules specifically targeting porn websites to be constitutional. Judge Rovner characterized these types of laws as potentially “burdensome.”
Consider this portion of Judge Rovner’s dissenting opinion:
“[We] impose a cost on the businesses and individuals that have to comply with the Act, and curtail their First Amendment rights, based solely on an unreasoned stay denial even though the only court decision as to this Indiana statute held that the burden is unconstitutional. And such a precedent could have drastic consequences in a future case where the economic burden of a statute was even greater by subjecting the parties to that burden while awaiting the Supreme Court’s decision without ever considering the relative harms to the parties.”
All three of the Seventh Circuit judges – Judges Frank H. Easterbrook, Amy J. St. Eve, and Rovner – determined SB 17 to be “functionally identical” to HB 1181. And since HB 1181 is already being enforced and the Supreme Court allowed it to stay in force during the ongoing litigation, it was deemed fair to follow this ruling and allow SB 17 to go into force as well. Rovner does note it is troubling they granted the motion to allow SB 17 to be enforced without ever considering the harm an age verification mandate would have on the suing platforms and users.
“Here…the district court held that the statute was unconstitutional, and granted a preliminary injunction, enjoining it on First Amendment grounds and denying the motion to stay that injunction. The result, of course, is that the Indiana statute has never been in force, unlike the Texas statute. We have not yet had the opportunity to consider the appeal on the merits, and therefore, the current state in our case is that the plaintiffs have not been required to comply with the burdensome requirements of the Act.”
The Seventh Circuit declined to rule on the constitutionality of SB 17, unlike the Fifth Circuit in the case of Texas HB 1181. It only looked at whether or not the law could go into effect now or should be stayed.
Rovner rightly points out that the Supreme Court’s decision to grant cert in the Paxton case should cause some more careful thinking by the Seventh Circuit. It at least indicates that some at the Supreme Court feel the case in the Fifth was decided incorrectly.
One could as easily argue that the Court’s grant of certiorari signals a concern with the Fifth Circuit’s determination of constitutionality, and favors leaving the district court’s determination in place.
When reviewing these laws, it’s reasonable to think SCOTUS might believe that the Fifth Circuit erred in using rational basis (or, similarly, that it erred in how it applied that scrutiny). That would explain why it took the case. And thus, Rovner is correct that it’s a bit odd for the Seventh Circuit to effectively bless the Fifth Circuit’s approach right at the very moment the Supreme Court had indicated it may have problems.
Rovner also points out that the majority’s decision in the Seventh Circuit claims to be in favor of keeping the “status quo,” but that makes no sense, given that Indiana’s law has never been in force, and this move puts it into force:
Here, in contrast, the district court held that the statute was unconstitutional, and granted a preliminary injunction, enjoining it on First Amendment grounds and denying the motion to stay that injunction. The result, of course, is that the Indiana statute has never been in force, unlike the Texas statute. We have not yet had the opportunity to consider the appeal on the merits, and therefore, the current state in our case is that the plaintiffs have not been required to comply with the burdensome requirements of the Act. If we were to alter that status quo, we should do so only by considering the stay on the merits and determining that a stay is appropriate under that analysis
Either way, for now the law is in effect, and Rokita can go after adult content sites for not making use of age verification while we wait for the Supreme Court to determine if the Fifth Circuit was correct in the first place.
Michael McGrady covers the legal and tech side of the online porn business, among other topics.
It’s never about the children. Supporters of age verification laws, book bans, drag show bans, and abortion bans always claim they’re doing these things to protect children. But it’s always just about themselves. They want to impose their morality on other adults. That’s all there is to it.
Abortion bans are just a way to strip women of bodily autonomy. If it was really about cherishing children and new lives, these same legislators wouldn’t be routinely stripping school lunch programs of funding, introducing onerous means testing to government aid programs, and generally treating children as a presumptive drain on society.
The same goes for book bans. They claim they want to prevent children from accessing inappropriate material. But you can only prevent children from accessing it by removing it entirely from public libraries, which means even adults will no longer be able to read these books.
The laws targeting drag shows aren’t about children. They’re about punishing certain people for being the way they are — people whose mere existence seems to be considered wholly unacceptable by bigots with far too much power.
The slew of age verification laws introduced in recent years are being shot down by courts almost as swiftly as they’re enacted. And for good reason. Age verification laws are unconstitutional. And they’re certainly not being enacted to prevent children from accessing porn.
Of course, none of the people pushing this kind of legislation will ever openly admit their reasons for doing so. But they will admit it to people they think are like-minded. All it takes is a tiny bit of subterfuge to tease these admissions out of activist groups that want to control what content adults have access to — something that’s barely hidden by their “for the children” facade.
As Shawn Musgrave reports for The Intercept, a couple of people managed to coax this admission out of a former Trump official simply by pretending they were there to give his pet project a bunch of cash.
“I actually never talk about our porn agenda,” said Russell Vought, a former top Trump administration official, in late July. Vought was chatting with two men he thought were potential donors to his right-wing think tank, the Center for Renewing America.
For the last three years, Vought and the CRA have been pushing laws that require porn websites to verify their visitors are not minors, on the argument that children need to be protected from smut. Dozens of states have enacted or considered these “age verification laws,” many of them modeled on the CRA’s proposals.
[…]
But in a wide-ranging, covertly recorded conversation with two undercover operatives — a paid actor and a reporter for the British journalism nonprofit Centre for Climate Reporting — Vought let them in on a thinly veiled secret: These age verification laws are a pretext for restricting access to porn more broadly.
“Thinly veiled” is right. While it’s somewhat amusing Vought was taken in so easily and was immediately willing to say the quiet part loud when he thought cash was on the line, he’s made his antipathy towards porn exceedingly clear. As Musgrave notes in his article, Vought’s contribution to Project 2025 — a right-wing masturbatory fantasy masquerading as policy proposals should Trump take office again — almost immediately veers into the sort of territory normally only explored by dictators and autocrats who relied heavily on domestic surveillance, forced labor camps, and torture to rein in those who disagreed with their moral stances.
Pornography, manifested today in the omnipresent propagation of transgender ideology and sexualization of children, for instance, is not a political Gordian knot inextricably binding up disparate claims about free speech, property rights, sexual liberation, and child welfare. It has no claim to First Amendment protection. Its purveyors are child predators and misogynistic exploiters of women. Their product is as addictive as any illicit drug and as psychologically destructive as any crime. Pornography should be outlawed. The people who produce and distribute it should be imprisoned. Educators and public librarians who purvey it should be classed as registered sex offenders. And telecommunications and technology firms that facilitate its spread should be shuttered.
Perhaps the most surprising part of this paragraph (and, indeed, a lot of Vought’s contribution to Project 2025) is that it isn’t written in all caps with a “follow me on xTwitter” link attached. These are not the words of a hinged person. They are the opposite — the ravings of a man in desperate need of a competent re-hinging service.
And he’s wrong about everything in this paragraph, especially his assertion that pornography is not a First Amendment issue. It is. That’s why so many of these laws are getting rejected by federal courts. The rest is hyperbole that pretends it’s just bold, common sense assertions. I would like to hear more about the epidemic of porn overdoses that’s leaving children parentless and overloading our health system. And who can forget the recent killing sprees of the Sinoloa Porn Cartel, which has led to federal intervention from the Mexican government?
But the most horrifying part is Vought’s desire to imprison people for producing porn and converting librarians to registered sex offenders just because their libraries carry some content that personally offends his sensibilities.
These are the words and actions of people who strongly support fascism so long as they’re part of the ruling party. They don’t care about kids, America, democracy, or the Constitution. They want a nation of followers and the power to punish anyone who steps out of line. The Center for Renewing America is only one of several groups with the same ideology and the same censorial urges. These are dangerous people, but their ideas and policy proposals are now so common it’s almost impossible to classify it as “extremist.” There are a lot of Americans who would rather see the nation destroyed than have to, at minimum, tolerate people and ideas they don’t personally like. Their ugliness needs to be dragged out into the open as often as possible, if only to force them to confront the things they’ve actually said and done.
Texas is one of eight states that have enacted laws that force adults to prove their age before accessing porn sites. Soon it will try to persuade the Supreme Court that its law doesn’t violate the First Amendment.
Good luck with that.
These laws are unconstitutional: They deny adults the well-established right to access constitutionally protected speech.
Texas’ H.B. 1181 forces any website made up of one-third or more adult content to verify every visitor’s age. Some adult sites have responded to the law by shutting down their services in Texas. The Free Speech Coalition challenged the law on First Amendment grounds, arguing that mandatory age verification does more than keep minors away from porn — the law nannies adults as well, barring them from constitutionally protected speech.
The district court agreed with the challengers. Laws regulating speech because of its content (i.e., because it is sexually explicit) are presumed invalid. Under strict scrutiny, the state must show that its regulation is narrowly tailored to serve a compelling government interest. In other words, the government needs an exceptionally good reason to regulate, and it can’t regulate more speech than necessary.
The case will turn on what level of scrutiny applies. Protecting minors from obscene speech is a permissible state interest, as the Fifth Circuit court established when it applied the lowest form of scrutiny — rational basis review — to uphold the law. But not all speech that is obscene to minors is obscene to adults. Judge Higginbotham, dissenting from the Fifth Circuit’s decision, pointed out that kids might have no right to watch certain scenes from Game of Thrones — but adults do.
Inpreviouscasesregulating minors’ access to explicit content, the Supreme Court applied strict scrutiny specifically because the laws restricted adult access to protected speech. Texas hopes to get around decades of precedent by arguing that there is no way that age verification “could reasonably chill adults’ willingness” to visit porn sites. If adults don’t care about age verification, Texas reasons, nothing in the law stops them from viewing sexually explicit material: No protected speech is regulated.
There’s just one problem: Adults do care about age verification.
H.B. 1181 bars age verification providers from retaining “identifying” information. But nothing in the law stops providers from sharing that same info, and people are rightly concerned about whether their private sexual desires will stay private. That you visited an adult site is bad enough. Getting your personal Pornhub search history leaked along with your government ID is enough to make even the most shameless person consider changing their name and becoming a hermit.
Texas swears up and down that age verification tech is secure, but that doesn’t inspire confidence in anyone following cybersecurity news. Malware is out there. Data leaks happen.
A bored employee glancing at your driver’s license as you walk into the sex shop is not the same thing as submitting to a biometric face scan and algorithmic ID verification, by order of the government, before you can press play on a dirty video. Just thinking about it kills the mood, which may be part of the point.
Texas pretends there’s no difference between the bored bouncer and biometric scans, but if you knew the bouncer had an encyclopedic, inhuman ability to remember every name and face that came through the door and loose lips, well, you wouldn’t go there either.
Hand-waving away these differences is the kind of thing you only do if you’re highly ideologically motivated. But normal people are very reasonably concerned about whether their personal sexual preferences will be leaked to their boss, mother-in-law, or fellow citizens. Mandatory age verification turns people off of viewing porn entirely, and it chills their free expression.
Sexual preferences are private and sensitive; they’re exactly the type of thing you don’t want leaking. So, of course, sexual content is a particularly juicy target for would-be hackers and extortionists. People pay handsomely to keep “sextortion” quiet. If you’re worried about your privacy and you don’t trust the age verification software (you shouldn’t), you’re likely to avoid the risk up front. One adult site says only 6% of visitors go through age verification and that even fewer succeed. Thus the chilling effect: even though adult access to porn is technically legal, people are so afraid of having their ID and last watched video plastered across the internet that they stop watching in the first place.
If the Supreme Court recognizes this and applies strict scrutiny, it will ask whether less restrictive means could protect minors. Back in 2004, the Court tossed out COPA, a law requiring credit card verification to access sexually explicit materials, reasoning that blocking and filtering software would protect minors without burdening adult speech. Today’s filtering software is far more effective than what was available twenty years ago — as the district court found — and, notably, filtering software doesn’t scan adults’ faces.
Sex — a “subject of absorbing interest to mankind,” as one justice once put it — matters. Adults have the right to sexually explicit speech, free of the fear that their identifying information will be leaked or sent to the state. Texas can and should seek to protect kids without stoking that fear.
Santana Boulton is a legal fellow at TechFreedom and a Young Voices contributor. Her commentary has appeared in TechDirt. Follow her on X: @santanaboulton.
Just when you thought the internet was safe from the meddling minds of the Supreme Court, the Justices have decided to take another crack at reviewing whether or not a new set of state regulations of the internet violates the First Amendment. And this time, it has a “but won’t you think of the children online” element to it as well.
Just a day after concluding decisions for the last term and (thankfully) not destroying the internet with its NetChoice decisions, the Supreme Court released a new order list regarding petitions for cert and announced that it would be taking Free Speech Coalition’s challenge to Texas’ internet age verification law, giving it yet another chance to potentially screw up the internet (or, hopefully, to reinforce free speech rights).
If you haven’t been following this case, it’s an important one for the future of privacy and speech online, so let’s bring everyone up to speed.
Two decades ago, there was an early moral panic about kids on the internet, and Congress went nuts passing a variety of laws aiming to “protect the children online.” Two of the bigger attempts — the Communications Decency Act and the Child Online Protection Act — were dumped as unconstitutional in Reno v. ACLU and Ashcroft v. ACLU.
Among other things, the Reno case established that the First Amendment still applies in online scenarios (meaning governments can’t pass laws that suppress free speech online) and the Ashcroft case established that age restricting access to content online was unconstitutional as it failed “strict scrutiny” (necessary to uphold a law that has an impact on speech). In large part, it failed strict scrutiny because it was not the “least restrictive means” of protecting children and would both likely block kids from accessing content they had a First Amendment right to access while also blocking adults from content they had a right to access.
However, we’re deep in the midst of a very similar moral panic about “the kids online” these days, despite little actual evidence to support the fearmongering. Nonetheless, a ton of states have been passing all kinds of “protect the kids online” laws. This is across both Republican and Democrat-controlled states, so it’s hardly a partisan type of moral panic.
Multiple courts have been (rightly) tossing these laws out as unconstitutional one after another, with many (rightly) pointing to the decision in Ashcroft and pointing out that the Supreme Court already decided this.
Many of the age verification laws (especially those in Republican-controlled states) have been focused specifically on adult content websites, saying those sites in particular are required to age gate. And while it makes sense that children should not have easy access to pornographic content, there are ways to limit such access without using problematic age verification technology, which puts privacy at risk and is not particularly effective. Indeed, just a couple weeks ago, an age verification vendor used by many internet companies was found to have leaked personal data on millions of people.
Allowing age verification laws online would do tremendous damage to the internet, to kids, and to everyone. It would create a regime where anonymity online would be effectively revoked, and people’s private data would be at risk any time they’re online. People keep pitching ideas around “privacy-protective age verification” which is one of those concepts, like “safe backdoors to encryption,” that politicians seem to think is doable, but in reality is impossible.
One of the many states that passed such a law was Texas, and like most other states (the only exceptions to date have been on procedural grounds in states where a suit can’t be filed until someone takes action against a site for failing to age-gate) the district court quickly tossed out the law as obviously unconstitutional under the Ashcroft ruling.
But, just months later, the Fifth Circuit (as it has been known to do the past few years) decided that it could ignore Supreme Court precedent, overturn the lower court, and put the law back into effect. I wrote a big long post explaining the nutty thinking behind all this, but in effect, the Fifth Circuit decided that it didn’t have to follow Ashcroft because that only dealt with “strict scrutiny,” and the Judges on the Fifth Circuit believed that a law like this need only face intermediate scrutiny, and on that basis the law was fine.
Again, this bucked every possible precedent. And just last week, as yet another trial court, this time in Indiana, threw out a similar law, the judge there walked through all the many reasons the Fifth Circuit got things wrong (the Indiana court was not bound by the Fifth Circuit, but the state of Indiana had pointed to the Fifth’s ruling in support of its law).
Back in April, we had explained why it was important for the Supreme Court to review the Fifth Circuit’s bizarre ruling, and that’s where things stand now, thanks to them granting cert.
Of course, it’s anyone’s guess as to how the Supreme Court will rule, though there are a few signs that suggest it may use this to smack down the Fifth Circuit and remind everyone that Ashcroft was decided correctly. First, especially this past term, the Supreme Court has been aggressively smacking down the Fifth Circuit and its series of crazy rogue rulings. So it’s already somewhat primed to look skeptically at rulings coming out of the nation’s most ridiculous appeals court.
Second, if the Fifth’s reasoning wasn’t nutty, then there would be little to no reason to take the case. Again, the Court already handled nearly this very issue twenty years ago, and the Fifth Circuit is the first to say it can just ignore that ruling.
That said, any time the Supreme Court takes up an internet issue, you never quite know how it’s going to end up, especially given Justice Kagan’s own comment on herself and her colleagues that “these are not, like, the nine greatest experts on the internet.”
On top of that, any time you get into “for the children” moral panics, people who might otherwise be sensible seem to lose their minds. Hopefully, the Supreme Court takes a more sober approach to this case, but I recognize that “sober analysis” and this particular Supreme Court are not always things that go together.
We keep pointing out that, contrary to the uninformed opinion of lawmakers across both major parties, laws that require age verification are clearly unconstitutional*.
Such laws have been tossed out everywhere as unconstitutional, except in Texas (and even then, the district court got it right, and only the 5th Circuit is confused). And yet, we hear about another state passing an age verification law basically every week. And this isn’t a partisan/culture war thing, either. Red states, blue states, purple states: doesn’t matter. All seem to be exploring unconstitutional age verification laws.
Indiana came up with one last year, which targeted adult content sites specifically. And, yes, there are perfectly good arguments that kids should not have access to pornographic content. However, the Constitution does not allow for any such restriction to be done in a sloppy manner that is both ineffective at stopping kids and likely to block protected speech. And yet, that’s what every age-gating law does. The key point is that there are other ways to restrict kids’ access to porn, rather than age-gating everything. But they often involve this thing called parenting.
The court starts out by highlighting that geolocating is an extraordinarily inexact science, which is a problem, given that the law requires adult content sites to determine when visitors are from Indiana and to age verify them.
But there is a problem: a computer’s IP address is not like a return address on an envelope because an IP address is not inherently tied to any location in the real world but consists of a unique string of numbers written by the Internet Service Provider for a large geographic area. (See id. ¶¶ 12–13). This means that when a user connects to a website, the website will only know the user is in a circle with a radius of 60 miles. (Id. ¶ 14). Thus, if a user near Springfield, Massachusetts, were to connect to a website, the user might be appearing to connect from neighboring New York, Connecticut, Rhode Island, New Hampshire, or Vermont. (Id.). And a user from Evansville, Indiana, may appear to be connecting from Illinois or Kentucky. The ability to determine where a user is connecting from is even weaker when using a phone with a large phone carrier such as Verizon with error margins up to 1,420 miles. (Id. ¶¶ 16, 19). Companies specializing in IP address geolocation explain the accuracy of determining someone’s state from their IP address is between 55% and 80%. (Id. ¶ 17). Internet Service Providers also continually change a user’s IP address over the course of the day, which can make a user appear from different states at random.
Also, users can hide their real IP address in various ways:
Even when the tracking of an IP address is accurate, however, internet users have myriad ways to disguise their IP address to appear as if they are located in another state. (Id. ¶ B (“Website users can appear to be anywhere in the world they would like to be.”)). For example, when a user connects to a proxy server, they can use the proxy server’s IP address instead of their own (somewhat like having a PO box in another state). (Id. ¶ 22). ProxyScrape, a free service, allows users to pretend to be in 129 different countries for no charge. (Id.). Virtual Private Network (“VPN”) technology allows something similar by hiding the user’s IP address to replace it with a fake one from somewhere else.
All these methods are free or cheap and easy to use. (Id. ¶¶ 21–28). Some even allow users to access the dark web with just a download. (Id. ¶ 21). One program, TOR, is specifically designed to be as easy to use as possible to ensure as many people can be as anonymous as possible. (Id.). It is so powerful that it can circumvent Chinese censors.
The reference to “Chinese censors” is a bit weird, but okay, point made: if people don’t want to appear as if they’re from Indiana, they can do so.
The court also realizes that just blocking adult content websites won’t block access to other sources of porn. The ruling probably violates a bunch of proposed laws against content that is “harmful to minors” by telling kids how to find porn:
Other workarounds include torrents, where someone can connect directly to another computer—rather than interacting with a website—to download pornography. (Id. ¶ 29). As before, this is free. (Id.). Minors could also just search terms like “hot sex” on search engines like Bing or Google without verifying their age. (Id. ¶ 32–33). While these engines automatically blur content to start, (Glogoza Decl. ¶¶ 5–6), users can simply click a button turning off “safe search” to reveal pornographic images, (Sonnier Decl. ¶ 32). Or a minor could make use of mixed content websites below the 1/3 mark like Reddit and Facebook
And thus, problem number one with age verification: it’s not going to be even remotely effective for achieving the policy goals being sought here.
With this background, it is easy to see why age verification requirements are ineffective at preventing minors from viewing obscene content. (See id. ¶¶ 14–34 (discussing all the ways minors could bypass age verification requirements)). The Attorney General submits no evidence suggesting that age verification is effective at preventing minors from accessing obscene content; one source submitted by the Attorney General suggests there must be an “investigation” into the effectiveness of preventive methods, “such as age verification tools.
And that matters. Again, even if you agree with the policy goals, you should recognize that putting in place an ineffective regulatory regime that is easily bypassed is not at all helpful, especially given that it might also restrict speech for non-minors.
Unlike the 5th Circuit, this district court in Indiana understands the precedents related to this issue and knows that Ashcroft v. ACLU already dealt with the main issue at play in this case:
In the case most like the one here, the Supreme Court affirmed the preliminary enjoinment of the Child Online Protection Act. See Ashcroft II, 542 U.S. at 660–61. That statute imposed penalties on websites that posted content that was “harmful to minors” for “commercial purposes” unless those websites “requir[ed the] use of a credit card” or “any other reasonable measures that are feasible under available technology” to restrict the prohibited materials to adults. 47 U.S.C. § 231(a)(1). The Supreme Court noted that such a scheme failed to clear the applicable strict scrutiny bar. Ashcroft II, 542 U.S. at 665–66 (applying strict scrutiny test). That was because the regulations were not particularly effective as it was easy for minors to get around the requirements, id. at 667– 68, and failed to consider less restrictive alternatives that would have been equally effective such as filtering and blocking software, id. at 668–69 (discussing filtering and blocking software). All of that is equally true here, which is sufficient to resolve this case against the Attorney General.
Indiana’s Attorney General points to the 5th Circuit ruling that tries to ignore Ashcroft, but the judge here is too smart for that. He knows he’s bound by the Supreme Court, not whatever version of Calvinball the 5th Circuit is playing:
Instead of applying strict scrutiny as directed by the Supreme Court, the Fifth Circuit applied rational basis scrutiny under Ginsberg v. New York, 390 U.S. 629 (1968), even though the Supreme Court explained how Ginsberg was inapplicable to these types of cases in Reno, 521 U.S. at 865–66. The Attorney General argues this court should follow that analysis and apply rational basis scrutiny under Ginsberg.
However, this court is bound by Ashcroft II. See Agostini v. Felton, 521 U.S. 203, 237–38 (1997) (explaining lower courts “should follow the case which directly controls”). To be sure, Ashcroft II involved using credit cards, and Indiana’s statute requires using a driver’s license or third-party identification software.10 But as discussed below, this is not sufficient to take the Act beyond the strictures of strict scrutiny, nor enough to materially advance Indiana’s compelling interest, nor adequate to tailor the Act to the least restrictive means.
And thus, strict scrutiny must apply, unlike in the 5th Circuit, and this law can’t pass that bar.
Among other things, the age verification in this law doesn’t just apply to material that is obscene to minors:
The age verification requirements do not just apply to obscene content and also burden a significant amount of protected speech for two reasons. First, Indiana’s statute slips from the constitutional definition of obscenity and covers more material than considered by the Miller test. This issue occurs with the third prong of Indiana’s “material harmful to minors” definition, where it describes the harmful material as “patently offensive” based on “what is suitable matter for . . . minors.” Ind. Code § 35- 49-2-2. It is well established that what may be acceptable for adults may still be deleterious (and subject to restriction) to minors. Ginsberg, 390 U.S. at 637 (holding that minors “have a more restricted right than that assured to adults to judge and determine for themselves what sex material they may read or see”); cf. ACLU v. Ashcroft, 322 F.3d 240, 268 (3d Cir. 2003) (explaining the offensiveness of materials to minors changes based on their age such that “sex education materials may have ‘serious value’ for . . . sixteen-year-olds” but be “without ‘serious value’ for children aged, say, ten to thirteen”), aff’d sub nom. in relevant part, 542 U.S. 656 (2004). Put differently, materials unsuitable for minors may not be obscene under the strictures of Miller, meaning the statute places burdens on speech that is constitutionally protected but not appropriate for children
Also, even if the government has a compelling interest in protecting kids from adult content, this law doesn’t actually do a good job of that:
To be sure, protecting minors from viewing obscene material is a compelling interest; the Act just fails to further that interest in the constitutionally required way because it is wildly underinclusive when judged against that interest. “[A] law cannot be regarded as protecting an interest ‘of the highest order’ . . . when it leaves appreciable damage to that supposedly vital interest unprohibited.” …
The court makes it clear how feeble this law is:
To Indiana’s legislature, the materials harmful to minors are not so rugged that the State believes they should be unavailable to adults, nor so mentally debilitating to a child’s mind that they should be completely inaccessible to children. The Act does not function as a blanket ban of these materials, nor ban minors from accessing these materials, nor impose identification requirements on everybody displaying obscene content. Instead, it only circumscribes the conduct of websites who have a critical mass of adult material, whether they are currently displaying that content to a minor or not. Indeed, minors can freely access obscene material simply by searching that material in a search engine and turning off the blur feature. (Id. ¶¶ 31–33). Indiana’s legislature is perfectly willing “to leave this dangerous, mind-altering material in the hands of children” so long as the children receive that content from Google, Bing, any newspaper, Facebook, Reddit, or the multitude of other websites not covered.
The court also points out how silly it is that the law only applies to sites with a high enough threshold (33%) of adult content. If the goal is to block kids’ access to porn, that’s a stupid way to go about it. Indeed, the court effectively notes that a website could get around the ban just by adding a bunch of non-adult imagery content.
The Attorney General has not even attempted to meet its burden to explain why this speaker discrimination is necessary to or supportive of to its compelling interest; why is it that a website that contains 32% pornographic material is not as deleterious to a minor as a website that contains 33% pornographic material? And why does publishing news allow a website to display as many adult-images as it desires without needing to verify the user is an adult? Indeed, the Attorney General has not submitted any evidence suggesting age verification would prohibit a single minor from viewing harmful materials, even though he bears the burden of demonstrating the effectiveness of the statute. Ultimately, the Act favors certain speakers over others by selectively imposing the age verification burdens. “This the State cannot do.” Sorrell v. IMS Health Inc., 564 U.S. 552, 580 (2011). The Act is likely unconstitutional.
In a footnote, the judge highlights an even dumber part of the law: that the 33% is based on the percentage of imagery, and gives a hypothetical of a site that would be required to age gate:
Consider a blog that discusses new legislation the author would like to see passed. It contains hundreds of posts discussing these proposals. The blog does not include images save one exception: attached to a proposal suggesting the legislature should provide better sexual health resources to adult-entertainment performers is a picture of an adult-entertainer striking a raunchy pose. Even though 99% of the blog is core political speech, adults would be unable to access the website unless they provide identification because the age verification provisions do not trigger based on the amount of total adult content on the website, but rather based on the percentage of images (no matter how much text content there is) that contain material harmful to minors.
The court suggests some alternatives to this law, from requiring age verification for accessing any adult content (though, it notes that’s also probably unconstitutional, even if it’s less restrictive) to having the state offer up free filtering and blocking tech for parents to make use of for their kids:
Indiana could make freely available and/or require the use of filtering and blocking technology on minors’ devices. This is a superior alternative. (Sonnier Decl. ¶ 47 (“Internet content filtering is a superior alternative to Internet age verification.”); see also Allen Decl. ¶¶ 38–39 (not disputing that content filtering is superior to age verification as “[t]he Plaintiff’s claim makes a number of correct positive assertions about content filtering technology” but noting “[t]here is no reason why both content filtering and age verification could not be deployed either consecutively or concurrently”)). That is true for the reasons discussed in the background section: filtering and blocking software is more accurate in identifying and blocking adult content, more difficult to circumvent, allows parents a place to participate in the rearing of their children, and imposes fewer costs on third-party websites.
And thus, due to the fact that the law is pretty obviously unconstitutional, the judge grants the injunction, blocking the law from going into effect. Indiana will almost certainly appeal and we’ll have to just keep going through this nonsense over and over again.
Thankfully, Indiana is in the 7th Circuit, not the 5th, so there’s at least somewhat less of a chance for pure nuttery on appeal.
As more and more governments try to pass more and more laws requiring age verification, some of us keep pointing out that age verification will cause a ton of harm. For all the talk of how it’s necessary to “protect the children,” the only way to verify ages is to collect a ton of private information on people, which then makes that information a target.
People like Jonathan Haidt in his new book like to pretend that there’s some magical way of doing privacy-protective age verification by outsourcing it to a third party, but that just passes the buck and makes that third party a target. Just a few weeks ago, we talked about this a bit in the context of Australia, where a third-party age ID verification vendor used by bars had a breach, leaking more than 1 million customer records.
Of course, some people would say, “but that’s a bar, that’s different than a website.”
Well, then, this new story should catch your attention. First reported by 404 Media, AU10TIX, an Israeli-based online identification company used by TikTok, ExTwitter, Uber, LinkedIn, PayPal, Fiverr and others has been leaking drivers’ licenses. For over a year.
The set of credentials provided access to a logging platform, which in turn contained links to data related to specific people who had uploaded their identity documents, Hussein showed. The accessible information includes the person’s name, date of birth, nationality, identification number, and the type of document uploaded such as a drivers’ license. A subsequent link then includes an image of the identity document itself; some of those are American drivers’ licenses.
The data also appears to include results from AU10TIX’s verification process, with a field for “liveness” reading “true”; the “probability” of that conclusion on a scale of 0 to 1, with a potential result being 0.9486029; and other fields called “DocumentAuthenticity” and “OverallQuality.” More results appear to relate to AU10TIX’s comparison of a photo of the person’s face to their uploaded document, with another section referencing a photo called “PhotoForFaceComparison.jpg.”
Another screenshot from the tool shows a line chart with one axis labeled “clientOrganizationName.” That axis includes “TikTok_Shop_Creator,” “Impersonation_XCorp,” and “uber-carshare-passport,” apparent references to the three tech giants.
Cool, cool. Nothing to be concerned about there at all.
Just last year, when Elon first hired this company to provide identification services for ExTwitter, we warned that these systems are not at all reliable and can be a threat to privacy. Turns out we were right.
As always, collecting unnecessary data makes you a target. And this data became a target and was exposed. The way we minimize that is not by forcing more companies to collect more such data. It’s to not need to collect such data in the first place.
This isn’t a case where someone just discovered this breach and no harm was done. Indeed, it appears that significant harm was done here:
The credentials appear to have been harvested by malware in December 2022, and first posted to a Telegram channel in March 2023, according to timestamps and messages from the Telegram channel that posted the credentials online. 404 Media downloaded these credentials and found the name matched that of someone who lists their role on LinkedIn as a Network Operations Center Manager at AU10TIX. The file contained a wealth of passwords and authentication tokens for various services used by the employee, including tools from Salesforce and Okta, as well as the logging service itself.
So this data has been out there for over a year. And shared. Widely. For over a year.
Can lawmakers please stop requiring more companies to harm everyone’s privacy this way? These breaches are only going to keep happening, and they’re only going to get worse the more and more ignorant policymakers keep forcing more companies to collect more such data, based on a myth that age verification will magically make the internet safe and wholesome. It won’t.
Apparently, the world needs even more terrible bills that let ignorant senators grandstand to the media about how they’re “protecting the kids online.” There’s nothing more serious to work on than that. The latest bill comes from Senators Brian Schatz and Ted Cruz (with assists from Senators Chris Murphy, Katie Britt, Peter Welch, Ted Budd, John Fetterman, Angus King, and Mark Warner). This one is called the “The Kids Off Social Media Act” (KOSMA) and it’s an unconstitutional mess built on a long list of debunked and faulty premises.
It’s especially disappointing to see this from Schatz. A few years back, I know his staffers would regularly reach out to smart people on tech policy issues in trying to understand the potential pitfalls of the regulations he was pushing. Either he’s no longer doing this, or he is deliberately ignoring their expert advice. I don’t know which one would be worse.
The crux of the bill is pretty straightforward: it would be an outright ban on social media accounts for anyone under the age of 13. As many people will recognize, we kinda already have a “soft” version of that because of COPPA, which puts much stricter rules on sites directed at those under 13. Because most sites don’t want to deal with those stricter rules, they officially limit account creation to those over the age of 13.
In practice, this has been a giant mess. Years and years ago, Danah Boyd pointed this out, talking about how the “age 13” bit is a disaster for kids, parents, and educators. Her research showed that all this generally did was to have parents teach kids that “it’s okay to lie,” as parents wanted kids to use social media tools to communicate with grandparents. Making that “soft” ban a hard ban is going to create a much bigger mess and prevent all sorts of useful and important communications (which, yeah, is a 1st Amendment issue).
Schatz’s reasons put forth for the bill are just… wrong.
No age demographic is more affected by the ongoing mental health crisis in the United States than kids, especially young girls. The Centers for Disease Control and Prevention’s Youth Risk Behavior Survey found that 57 percent of high school girls and 29 percent of high school boys felt persistently sad or hopeless in 2021, with 22 percent of all high school students—and nearly a third of high school girls—reporting they had seriously considered attempting suicide in the preceding year.
Gosh. What was happening in 2021 with kids that might have made them feel hopeless? Did Schatz and crew simply forget about the fact that most kids were under lockdown and physically isolated from friends for much of 2021? And that there were plenty of other stresses, including millions of people, including family members, dying? Noooooo. Must be social media!
Studies have shown a strong relationship between social media use and poor mental health, especially among children.
Note the careful word choice here: “strong relationship.” They won’t say a causal relationship because studies have not shown that. Indeed, as the leading researcher in the space has noted, there continues to be no real evidence of any causal relationship. The relationship appears to work the other way: kids who are dealing with poor mental health and who are desperate for help turn to the internet and social media because they’re not getting help elsewhere.
Maybe offer a bill that helps kids get access to more resources that help them with their mental health, rather than taking away the one place they feel comfortable going? Maybe?
From 2019 to 2021, overall screen use among teens and tweens (ages 8 to 12) increased by 17 percent, with tweens using screens for five hours and 33 minutes per day and teens using screens for eight hours and 39 minutes.
I mean, come on Schatz. Are you trolling everyone? Again, look at those dates. WHY DO YOU THINK that screen time might have increased 17% for kids from 2019 to 2021? COULD IT POSSIBLY BE that most kids had to do school via computers and devices at home, because there was a deadly pandemic making the rounds?
Maybe?
Did Schatz forget that? I recognize that lots of folks would like to forget the pandemic lockdowns, but this seems like a weird way to manifest that.
I mean, what a weird choice of dates to choose. I’m honestly kind of shocked that the increase was only 17%.
Also, note that the data presented here isn’t about an increase in social media use. It could very well be that the 17% increase was Zoom classes.
Based on the clear and growing evidence, the U.S. Surgeon General issued an advisory last year, calling for new policies to set and enforce age minimums and highlighting the importance of limiting the use of features, like algorithms, that attempt to maximize time, attention, and engagement.
Wait. You mean the same Surgeon General’s report that denied any causal link between social media and mental health (which you falsely claim has been proved) and noted just how useful and important social media is to many young people?
From that report, which Schatz misrepresents:
Social media can provide benefits for some youth by providing positive community and connection with others who share identities, abilities, and interests. It can provide access to important information and create a space for self-expression. The ability to form and maintain friendships online and develop social connections are among the positive effects of social media use for youth. , These relationships can afford opportunities to have positive interactions with more diverse peer groups than are available to them offline and can provide important social support to youth. The buffering effects against stress that online social support from peers may provide can be especially important for youth who are often marginalized, including racial, ethnic, and sexual and gender minorities. , For example, studies have shown that social media may support the mental health and well-being of lesbian, gay, bisexual, asexual, transgender, queer, intersex and other youths by enabling peer connection, identity development and management, and social support. Seven out of ten adolescent girls of color report encountering positive or identity-affirming content related to race across social media platforms. A majority of adolescents report that social media helps them feel more accepted (58%), like they have people who can support them through tough times (67%), like they have a place to show their creative side (71%), and more connected to what’s going on in their friends’ lives (80%). In addition, research suggests that social media-based and other digitally-based mental health interventions may also be helpful for some children and adolescents by promoting help-seeking behaviors and serving as a gateway to initiating mental health care.
Did Schatz’s staffers just, you know, skip over that part of the report or nah?
The bill also says that companies need to not allow algorithmic targeting of content to anyone under 17. This is also based on a widely believed myth that algorithmic content is somehow problematic. No studies have legitimately shown that of current algorithms. Indeed, a recent study showed that removing algorithmic targeting leads to people being exposed to more disinformation.
Is this bill designed to force more disinformation on kids? Why would that be a good idea?
Yes, some algorithms can be problematic! About a decade ago, algorithms that tried to optimize solely for “engagement” definitely created some bad outcomes. But it’s been a decade since most such algorithms have been designed that way. On most social media platforms, the algorithms are designed in other ways, taking into account a variety of different factors, because they know that optimizing just on engagement leads to bad outcomes.
Then the bill tacks on Cruz’s bill to require schools to block social media. There’s an amusing bit when reading the text of that part of the law. It says that you have to block social media on “federally funded networks and devices” but also notes that it does not prohibit “a teacher from using a social media platform in the classroom for educational purposes.”
But… how are they going to access those if the school is required by law to block access to such sites? Most schools are going to do a blanket ban, and teachers are going to be left to do what? Show kids useful YouTube science videos on their phones? Or maybe some schools will implement a special teacher code that lets them bypass the block. And by the end of the first week of school half the kids in the school will likely know that password.
What are we even doing here?
Schatz has a separate page hyping up the bill, and it’s even dumber than the first one above. It repeats some of the points above, though this time linking to Jonathan Haidt, whose work has been trashed left, right, and center by actual experts in this field. And then it gets even dumber:
Big Tech knows it’s complicit – but refuses to do anything about it…. Moreover, the platforms know about their central role in turbocharging the youth mental health crisis. According to Meta’s own internal study, “thirty-two percent of teen girls said that when they felt bad about their bodies, Instagram made them feel worse.” It concluded, “teens blame Instagram for increases in the rate of anxiety and depression.”
This is not just misleading, it’s practically fraudulent misrepresentation. The study Schatz is citing is one that was revealed by Frances Haugen. As we’ve discussed, it was done because Meta was trying to understand how to do better. Indeed, the whole point of that study was to see how teens felt about using social media in 12 different categories. Meta found that most boys felt neutral or better about themselves in all 12 categories. For girls, it was 11 out of 12. It was only in one category, body image, where the split was more pronounced. 32% of girls said that it made them feel worse. Basically the same percentage said it had no impact, or that it made them feel better.
Also, look at that slide’s title. The whole point of this study was to figure out if they were making kids feel worse in order to look into how to stop doing that. And now, because grandstanders like Schatz are falsely claiming that this proves they were “complicit” and “refuse to do anything about it,” no social media company will ever do this kind of research again.
Because, rather than proactively looking to see if they’re creating any problems that they need to try to fix, Schatz and crew are saying “simply researching this is proof that you’re complicit and refuse to act.”
Statements like this basically ensure that social media companies stick their heads in the sand, rather than try to figure out where harm might be caused and take steps to stop that harm.
Why would Schatz want to do that?
That page then also falsely claims that the bill does not require age verification. This is a silly two-step that lying politicians claim every time they do this. Does it directly mandate age verification? No. But, by making the penalties super serious and costly for failing to stop kids from accessing social media that will obviously drive companies to introduce stronger age verification measures that are inherently dangerous and an attack on privacy.
Perhaps Schatz doesn’t understand this, but it’s been widely discussed by many of the experts his staff used to talk to. So, really, he has no excuse.
The FAQ also claims that the bill will pass constitutional muster, while at the same time admitting that they know there will be lawsuits challenging it:
Yes. As, for example, First Amendment expert Neil Richards explains, “[i]nstead of censoring the protected expression present on these platforms, the act takes aim at the procedures and permissions that determine the time, place and manner of speech for underage consumers.” The Supreme Court has long held that the government has the right to regulate products to protect children, including by, for instance, restricting the sale of obscene content to minors. As Richards explains: “[i]n the same way a crowded bar or nightclub is no place for a child on their own”—or in the way every state in the country requires parental consent if it allows a minor to get a tattoo—“this rule would set a reasonable minimum age and maturity limitation for social media customers.”
While we expect legal challenges to any bill aimed at regulating social media companies, we are confident that this content-neutral bill will pass constitutional muster given the government interests at play.
There are many reasons why this is garbage under the law, but rather than breaking them all down (we’ll wait for judges to explain it in detail), I’ll just point out the major tell is in the law itself. In the definition of what a “social media platform” is in the law, there is a long list of exceptions of what the law does not cover. It includes a few “moral panics of yesteryear” that gullible politicians tried to ban and were found to have violated the First Amendment in the process.
It explicitly carves out video games and content that is professionally produced, rather than user-generated:
Remember the moral panics about video games and TV destroying kids’ minds? Yeah. So this child protection bill is hasty to say “but we’re not banning that kind of content!” Because whoever drafted the bill recognized that the Supreme Court has already made it clear that politicians can’t do that for video games or TV.
So, instead, they have to pretend that social media content is somehow on a whole different level.
But it’s not. It’s still the government restricting access to content. They’re going to pretend that there’s something unique and different about social media, and that they’re not banning the “content” but rather the “place” and “manner” of accessing that content. Except that’s laughable on its face.
You can see that in the quote above where Schatz does the fun dance where he first says “it’s okay to ban obscene content to minors” and then pretends that’s the same as restrictions on access to a bar (it’s not). One is about the content, and one is about a physical place. Social media is all about the content, and it’s not obscene content (which is already an exception to the First Amendment).
And, the “parental consent” for tattoos… I mean, what the fuck? Literally 4 questions above in the FAQ where that appears Schatz insists that his bill has nothing about parental consent. And then he tries to defend it by claiming it’s no different than parental consent laws?
The FAQ also claims this:
This bill does not prevent LGBTQ+ youth from accessing relevant resources online and we have worked closely with LGBTQ+ groups while crafting this legislation to ensure that this bill will not negatively impact that community.
I mean, it’s good you talked to some experts, but I note that most of the LGBTQ+ groups I’m aware of are not listed on your list of “groups supporting the bill” on the very same page. That absence stands out.
And, again, the Surgeon General’s report that you misleadingly cited elsewhere highlights how helpful social media can be to many LGBTQ+ youth. You can’t just say “nah, it won’t harm them” without explaining why all those benefits that have been shown in multiple studies, including the Surgeon General’s report, somehow don’t get impacted.
There’s a lot more, but this is just a terrible bill that would create a mess. And, I’m already hearing from folks in DC that Schatz is trying to get this bill added to the latest Christmas tree of a bill to reauthorize the FAA.
It would be nice if we had politicians looking to deal with the actual challenges facing kids these days, including the lack of mental health support for those who really need it. Instead, we get unconstitutional grandstanding nonsense bills like this.
Everyone associated with this bill should feel ashamed.
The Supreme Court has made it pretty clear that age verification laws for websites violate the First Amendment. It’s had a couple of shots at this and really seemed to indicate that such laws are unconstitutional because age verification would block First Amendment-protected content from people who should be allowed to see it.
So, it was little surprise when a Texas district court ruled that Texas’ law saying adult content websites need to include a form of age verification was unconstitutional. The ruling was detailed and careful.
Which means it was no surprise when the Fifth Circuit did the Fifth Circuit thing and overturned the lower court decision. I already went into the weeds on how silly the opinion was, but it does this weird tapdance where it pretends it can effectively ignore those cases that discussed age verification, because those cases all involved “strict scrutiny” and the judges on the panel felt that this could use a lower standard of “rational basis.”
This is wrong for all the reasons we talked about in that last post, and you probably don’t need another 16 paragraphs in this article about the differences between strict scrutiny and rational basis.
The Free Speech Coalition, who brought the original case, have filed a cert petition for the Supreme Court to hear the case. On the same day, they also filed an emergency petition on what is generally known as the “shadow docket,” asking for the court to stop the enforcement of the law, at least until the Supreme Court has reviewed their cert petition.
Shadow docket applications from each circuit go up to specific Justices, and Justice Alito gets to review the 5th Circuit. This seems unfortunate, given he’s the Justice most likely to go along with their nonsense.
On Tuesday, Alito rejected the request for a stay (without comment).
The Free Speech Coalition put out a statement, mostly about the fact that they’re still focused on getting the main show, the cert petition, picked up by the Supreme Court, and this may just be a temporary bump in the road.
While the Supreme Court has denied our application to stay the Fifth Circuit’s decision upholding age verification requirements in Texas, our petition for full merits review before the Supreme Court remains pending. We look forward to continuing this challenge, and others like it, in the federal courts. The ruling by the Fifth Circuit remains in direct opposition to decades of Supreme Court precedent, and we remain hopeful that the Supreme Court will grant our petition for certiorari and reaffirm its lengthy line of cases applying strict scrutiny to content-based restrictions on speech like those in the Texas statute we’ve challenged. We will continue to fight for the right to access the internet without intrusive government oversight.
While perhaps not the most surprising turn of events, it is still a frustrating interim bit of nonsense. Hopefully the petition is granted and the full case can be heard by other Justices who might better remember how the First Amendment works.
