ACLU Comment on Senate Vote to Allow Internet Providers to Sell Consumer Data

At the ACLU’s Civil Rights in the Digital Age AI Summit, leaders convened to evaluate the civil rights landscape of artificial intelligence and tech, and how we can call for policies that center privacy, fairness, and equity.

SAN ANTONIO – The American Civil Liberties Union, the ACLU of Texas, and several other legal advocacy groups filed an amicus brief today in CCIA v. Paxton, arguing that a Texas law that restricts social media content for minors violates the First Amendment. “If allowed to go into effect, this law will stifle young people’s creativity and cut them off from public discourse,” said Lauren Yu, legal fellow with the ACLU’s Speech, Privacy, and Technology Project. “The government can’t protect minors by censoring the world around them, or by making it harder for them to discuss their problems with their peers. This law would unconstitutionally limit young people’s ability to express themselves online, develop critical thinking skills, and discover new perspectives, and it would make the entire internet less free for us all in the process.” The brief argues that House Bill 18 (“the SCOPE Act”) restricts young people’s ability to use social media and blocks them from viewing content they have a constitutional right to see. The law, which was enjoined by a court last year, would require minors to register their age with social media platforms and would require platforms to filter content based on an overly broad definition of “harmful to minors” that includes any content that “promote, glorifies, or facilitates” a long list of topics, including eating disorders, bullying, and self-harm. “The government should not be able to decide what’s best for every child,” said Chloe Kempf, staff attorney from the ACLU of Texas. “This law would isolate kids who need community support, hinder families who want their children to learn about the world around them, and open the door to sweeping bans — from Romeo and Juliet to content that is critical of the government. What’s framed as protecting our children is harming them — by censoring their access to the ideas and information they need to prepare for their futures.” The Supreme Court has repeatedly held that minors have robust First Amendment rights, including online. Even when the goal is to protect children, the brief argues, the government cannot infringe upon core expressive activity. The brief was filed in support of Computer & Communications Industry Association (CCIA) and NetChoice. CCIA & NetChoice originally filed suit against H.B. 18 in 2024. The amicus brief was filed in the Western District of Texas and was signed by the Cato Institute, the Student Press Law Center, TechFreedom, Wikimedia, and the Woodhull Freedom Foundation. The brief can be viewed online here.

As AI increasingly makes decisions in hiring, policing, and social services, the ACLU’s Civil Rights in the Digital Age Summit focuses on promoting responsible AI design to ensure technology protects rights and serves justice for all.

WASHINGTON – The Supreme Court issued a blow to freedom of speech and privacy today by upholding Texas legislation that requires invasive age verification to access online content. Today’s ruling conflicts with decades of Supreme Court precedent protecting the free speech rights of adults to access sexual content online. But it is also a limited opinion that does not permit age verification for non-sexual content online. “The Supreme Court has departed from decades of settled precedents that ensured that sweeping laws purportedly for the benefit of minors do not limit adults’ access to First Amendment-protected materials,” said Cecillia Wang, national legal director of the American Civil Liberties Union. “The Texas statute at issue shows why those precedents applying strict scrutiny were needed. The legislature claims to be protecting children from sexually explicit materials, but the law will do little to block their access, and instead deters adults from viewing vast amounts of First Amendment-protected content.” Texas’s H.B. 1181 mandates that any website where one-third or more of its content is deemed sexual in a way that is “harmful to minors” must require visitors to prove they are adults before accessing the site. The act defines “sexual material harmful to minors” as material that is obscene from the perspective of an average person considering the material’s effect on minors. “Today's decision does not mean that age verification can be lawfully imposed across the internet,” said Vera Eidelman, senior staff attorney with the ACLU Speech, Privacy and Technology Project. “With this decision, the court has carved out an unprincipled pornography exception to the First Amendment. The Constitution should protect adults’ rights to access information about sex online, even if the government thinks it is too inappropriate for children to see." The Supreme Court reversed the Fifth Circuit’s ruling that mere rational basis scrutiny applies, instead imposing intermediate scrutiny, but it affirmed the Fifth Circuit Court’s ultimate conclusion that the law survives – and refused to apply strict scrutiny, as challenges to content-based laws typically do. However, the Texas law burdens adults’ ability to access sexual materials, requiring individuals to disclose personal information vulnerable to surveillance and data breaches just to access online content. The law also ultimately fails to achieve its intended purpose. Because the law only applies if one-third of a site’s content is explicit, the online sites where minors are most likely to be exposed to sexual content, like forums or social media platforms, are not affected. “As it has been throughout history, pornography is once again the canary in the coal mine of free expression,” said Alison Boden, executive director of the Free Speech Coalition. “The government should not have the right to demand that we sacrifice our privacy and security to use the internet. This law has failed to keep minors away from sexual content yet continues to have a massive chilling effect on adults. The outcome is disastrous for Texans and for anyone who cares about freedom of speech and privacy online.” The Supreme Court repeatedly heard cases on this issue in the past, many of which were brought by the ACLU, and had consistently held that requiring users to verify their age to access protected content is unconstitutional where there are less restrictive alternatives available, like filtering software. The Free Speech Coalition is represented by Quinn Emanuel, the American Civil Liberties Union, and the ACLU of Texas. This case is a part of the ACLU’s Joan and Irwin Jacobs Supreme Court Docket. The decision can be read here.