Age verification laws face free speech legal challenges.
State Legislation on Age Verification for Internet Platforms Faces Setbacks in Court
State legislation mandating age verification through government IDs for access to internet platforms hit significant setbacks in court this week, revealing that the path for similar legislation around the country may not be as clear as it appeared.
The state of Texas had legislation requiring users to verify their ages to access pornographic content blocked on Thursday on the basis of being unconstitutional. The same day, a separate federal court issued a preliminary injunction blocking Arkansas from enforcing a law that requires users to verify their age before making new social media accounts. While the laws deal with different parts of the internet, the court orders raise similar problems related to how users’ ages and identities should affect access.
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“The two decisions are a resounding victory for free speech on the internet,” Ari Cohn, a free speech counsel at Techfreedom, told the Washington Examiner. While the rulings deal with rules that are new in terms of the technology used, they turn on old speech-related questions that courts have decided in the past.
One central consideration is the Supreme Court’s 1997 ruling in Reno v. ACLU, Techfreedom Internet Policy Counsel Corbin Bernhold told the Washington Examiner. The decision declared that sections of the Communications Decency Act of 1996 restricting adult content through age verification were unconstitutional.
The courts have upheld this decision several times since the initial ruling. The U.S. Court of Appeals for the 3rd Circuit ruled in 2003 that requiring age verification chills speech and harms those who desire to be anonymous. The court ruled again in favor of not requiring age restrictions in 2008, noting that “many users who are not willing to access information non-anonymously will be deterred from accessing the desired information.”
Nevertheless, lawmakers in favor of age verification rules may not be deterred. Gov. Spencer Cox (R-UT), one of the first governors to sign age verification legislation for social media, argued that Reno was “wrongly decided” and that “new facts” demanded the states to act. Cox said that the internet has changed and cited the rise of platforms such as Facebook and X, the social media website previously called Twitter, as proof of a need for rules related to age.
The legal process will have to play out before the final fate of the Texas and Arkansas laws is determined. However, analysts do not expect the decisions to deter state leaders from continuing to push similar legislation. State lawmakers know that their voters wish to see them take action, Jason Kelley, the director of activism at the Electronic Frontier Foundation, told the Washington Examiner. Residents typically do not pay attention to what happens after the passage of legislation.
The Injunctions
U.S. District Judge David Alan Ezra granted a preliminary injunction blocking H.B. 1181, Texas’s newly passed age verification law, a day before it would go into effect. Ezra ruled that the law violated First Amendment rights and claimed that better tools than an outright ban could be used to address parental concerns about children’s rights.
Texas intends to challenge the injunction, a representative of the attorney general’s office told the Washington Examiner.
District Judge Timothy Brooks offered a similar injunction that same day, stating that Arkansas’s social media age verification law violated First Amendment rights and singled out certain types of speech to be regulated.
“We’re pleased the court sided with the First Amendment and stopped Arkansas’ unconstitutional law from censoring free speech online and undermining the privacy of Arkansans, their families, and their businesses as our case proceeds,” Chris Marchese, the director of the NetChoice Litigation Center, said. NetChoice is a right-leaning advocacy group promoting tech policies on Capitol Hill.
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Age verification legislation has cropped up around the country. Louisiana enacted restrictions on adult content in January, requiring users to verify their identities through a government-operated website before accessing adult content. Several states enacted copycat bills. Some of the leading pornographic websites, including Pornhub, responded by cutting off access to their content within the states.
Congress is considering legislation that could include similar restrictions. Sens. Brian Schatz (D-HI) and Tom Cotton (R-AK) introduced the Protecting Kids on Social Media Act in April, a bill that would set a minimum age of 13 for users to be allowed to have accounts on social media apps such as Instagram or TikTok, while users between the ages of 13 and 17 would require parental approval. Tech industry representatives argue that this legislation could threaten user privacy and parental rights.
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