WASHINGTON – Leading conservative think tank the American Enterprise Institute has published an op-ed written by one of its senior fellows criticizing the 5th Circuit’s passage of Texas’ controversial age verification law.
The play, written by Daniel Lyons and published On Friday, the institute’s AEIdeas series concluded that the 5th Circuit judges’ ideological hostility to adult content has led them to “undermine the fundamental principles of the rule of law in pursuit of their pet policy goals.” ”
“Because online activities are inherently communicative, the regulation of online expression is often complicated by the First Amendment,” Lyons writes. “But this is apparently not an issue that bothers the Fifth Circuit. In Free Speech Coalition v. Paxton, the court upheld a Texas law requiring pornographic websites to verify the age of their visitors – overturning two Supreme Court rulings that found such laws unconstitutional and deliberately blurring the difference between the offline world and cyberspace was ignored. ”
Lyons points out that it is clear to most Internet law scholars why previous age verification statutes were imposed by the courts.
“More than two decades ago, at the dawn of the Internet age, two Supreme Court cases, Reno v. ACLU and Ashcroft v. ACLU, struck down similar efforts by Congress to require age verification by pornographic websites,” he explains out. “Although minors may generally be prohibited from accessing sexual material, adults have a First Amendment right to consume non-obscene pornography. Because age verification threatened to chill adult speech, the Court applied strict scrutiny and struck down both laws because it found that age verification was not the least restrictive means of limiting minors’ access without harming adult speech.”
According to Lyons, the 5th Circuit’s conclusion is that the U.S. Supreme Court struck down two federal statutes because the parties relied on the wrong standard of review, and that 25 years of internet law precedent based on those decisions failed to recognize the error,” laughable’.
Appellate judges, the op-ed concludes, “cannot solve social problems by ignoring Supreme Court precedent with which they disagree. This gave the Ninth Circuit a bad reputation regarding death penalty cases toward the end of the twentieth century, and the Fifth Circuit unfortunately seems to be following in its footsteps today.
“There was once a time when conservatives portrayed such ploys as judicial activism.”