Silver Linings, Not Silver Bullets
At the end of June, the Supreme Court of the United States reached its decision in Free Speech Coalition v. Paxton, ruling in favor of a Texas law that requires age verification for access to websites that host explicit content. The decision is a break from precedent and presents a heightened risk to user privacy, but not a green light for all forms of age verification.
The Texas law in question, House Bill (HB) 1181, dictates that if more than ⅓ of the content on a website is “sexual material harmful to minors,” then age verification is required for all users of the platform. Because of the specific language of the bill, adults could still be required to verify their age in order to access the other non-explicit two-thirds of the website. The bill is broad and will implicate a significant amount of Texas internet-users into its age verification process.
The Supreme Court ruled that HB1181 does not warrant “strict scrutiny,” rather just “intermediate scrutiny.” Thomas Berry, director of the Cato Institute’s Robert Levy Center for Constitutional Studies, breaks down the distinction between the two. “Because the Court applied only intermediate (rather than strict) scrutiny, the Court did not require Texas to prove that it could achieve the state’s interest in protecting children in a way that imposed less of a burden on adults.” In other words, Texas does not need to look for a solution that answers the free speech and privacy issues that accompany the age verification law. In the past, laws with such major implications have been subject to strict scrutiny and a higher burden of proof that the proposed legislative remedy is the only possible way.
The immediate effect of this ruling is that adults will have a more difficult time accessing content online. This is the natural consequence to adding more entry obstacles. Moreover, age verification processes inherently involve the turning over of sensitive information, such as a driver’s license that contains one’s date of birth, home address, and other identifying characteristics. There is no silver bullet process for accurately verifying age that does not require the transfer of private personal data.
The silver lining of this ruling is that it limits the “intermediate scrutiny” standard and allowance to age verification processes for adult websites with content that is explicit for minors. The social media age verification laws that have appeared across the country over the last few years are not affected by the decision in Free Speech Coalition v. Paxton. Time and time again, social media bans and restrictions have failed to pass legal scrutiny because they involve barriers to all protected speech, not just that which is obscene. States do not, and should not have, license to use the Paxton ruling to justify encroaching upon Constitutionally protected rights.
The temptation to treat the internet like a club, where you flash an ID upon entry and forget the rest, is strong. In fact, Justice Kagan emphasizes this in her dissenting opinion, pointing out that the analogy ignores the nature of data and private information in the online age. Flashing an ID is far different than uploading one or transmitting it digitally. The analogy also fails to pass muster when considering the expanse of the internet as a host for Constitutionally protected free speech, both obscene and not. There is no silver bullet for protecting youth online, but there are stronger alternatives to eroding the free speech and privacy of millions of internet users. The bright side of the recent ruling is in its limitations—innovators and lawmakers can use this silver lining as an opportunity to enhance education and resources that empower families and youth navigate the internet safely without adding more regulations and barriers to free speech.
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