WASHINGTON – The Free Speech Coalition (FSC) urged the U.S. Supreme Court in a brief filed Monday to strike down Texas’ age verification law as unconstitutional.
The American Civil Liberties Union, the ACLU of Texas, and Quinn Emanuel today filed a brief with the Supreme Court on behalf of the Free Speech Coalition (FSC) and other plaintiffs in Free Speech Coalition v. Paxton, arguing that Texas’ age verification provision HB 1181 violates the First Amendment by inappropriately burdening adults’ right to access sexual content online.
HB 1181 requires any website that publishes content that is one-third or more “harmful to minors” – a broad category that includes virtually all explicit content – to force their visitors to provide digital IDs or other proof of age before being allowed to access the website. published material, regardless of what is on the other two-thirds of the site.
“Adults in America have a First Amendment right to read about sexual health, watch R-rated movies, watch porn, and otherwise access information about sex if they choose. They should be able to exercise that right as they see fit, without having to worry about disclosing their personally identifiable information in the process,” said Vera Eidelman, staff attorney at the ACLU Speech, Privacy and Technology Project. “Rather than requiring adults to give up their privacy to view and read content the government doesn’t like, lawmakers should focus on shaping a safer internet through things like voluntary content filters, which give control to people, and not to the government.”
Texas maintains that this provision is about protecting minors from accessing sexual content deemed harmful to them, not regulating unfavorable content, but it does not merely restrict minors’ access. It also restricts adults’ access, requiring them to identify themselves online and burdening their ability to exercise their First Amendment rights to view sexual content or other material on a regulated site. As the letter explains, requiring individuals to verify their age before accessing this protected expression deprives people of anonymity and threatens individuals (for example, those who do not have government identification or whose age is incorrectly identified by the relevant technology ) to deny access to certain websites. . Such a restriction is unnecessary given the availability of other options, such as content filtering, that could achieve the government’s goal while reducing the burden on expression.
“While the Texas law sounds reasonable on its face, in practice it is extremely burdensome and invasive, effectively deterring adults from accessing legal content,” said Alison Boden, executive director of the Free Speech Coalition. “To make matters worse, this law – and others like it – fails to achieve its stated goal of protecting children online, despite forcing adult content creators and consumers to operate under the threat of surveillance and censorship.”
At the same time, the law will not achieve its stated goal. Because the law only applies if one-third of a site’s content is explicit, social media sites that offer much of the same content but as a smaller portion of their overall offering avoid the law’s requirement. And search engines are completely exempt, meaning minors can access the exact same sexual content online through such sites. Furthermore, the law’s requirement that regulated sites provide unscientific health warnings about the negative effects of exposure to pornography illustrates the state’s distaste for the regulated speakers.
Before the case reached the Supreme Court, a district court briefly blocked the law’s application, concluding that the law’s age verification provision would unconstitutionally chill adult speech. However, a divided Fifth Circuit panel vacated that order, reasoning that the burden that age verification provisions place on adults’ First Amendment rights need only have a rational basis—and not be subject to strict scrutiny—because the goal is to protect children. Unless the Supreme Court issues a reversal, this decision will overturn decades of precedent protecting adults’ free speech.
In previous cases brought by the ACLU, the Supreme Court has repeatedly ruled that requiring users to verify their age to access protected content is unconstitutional when less restrictive alternatives are available, such as filtering software. In Reno v. ACLU, the Supreme Court unanimously ruled that the anti-indecency provisions of the 1996 Communications Decency Act, also intended to protect children, violated the First Amendment’s guarantee of free speech in part because of the burden it placed on adults. In Ashcroft v. ACLU, the Court held that a law nearly identical to the Texas law must pass strict scrutiny because it limited adults’ access to protected sexual expression. Where a less restrictive alternative exists – for example the voluntary installation of filtering software on minors’ devices – the government cannot impose age verification on adults in the name of protecting children.
Free Speech Coalition v. Paxton is one of several cases in which the ACLU has urged courts to reject age verification programs that would undermine the freedom of speech of Internet users, part of the organization’s long tradition of protecting free speech online defend.
The ACLU’s brief in Free Speech Coalition v. Paxton is part of the ACLU’s Supreme Court docket of Joan and Irwin Jacobs.