Child Safety, Free Speech, and Privacy Experts Tell Supreme Court: Texas’s Unconstitutional Age Verification Law Must be Overturned

WASHINGTON — Several leading advocacy organizations, including those dedicated to protecting children from exploitation, safeguarding free speech, and ending government abuse, along with prominent law professors, submitted friend-of-the-court briefs today in Free Speech Coalition v. Paxton, a potentially precedent-setting case before the U.S. Supreme Court.

The lawsuit, brought by the American Civil Liberties Union, ACLU of Texas, and Quinn Emanuel on behalf of the Free Speech Coalition and others, challenges Texas’s H.B 1181, which requires any website that publishes content one third or more of which is “harmful to minors” — a broad category that includes virtually any explicit content — to force their visitors to provide digital IDs or other proof of age before they can access the published material. This law could apply to porn sites, as well as sexual health organizations, sites that host R-rated movies, and any website that contains nudity or descriptions of sexual organs or activities.

Though Texas claims the law is about protecting minors, the law does not merely restrict minors’ access. In requiring adults to to identify themselves online, the law burdens their ability to exercise their First Amendment rights to see sexual content or any other material on a regulated site. And, as today’s amicus briefs make clear, the law also fails to keep kids safe.

The organizations supporting the Free Speech Coalition via amicus briefs include the International Centre for Missing & Exploited Children, the CATO Institute, the Institute for Justice, Media Coalition, Foundation for Individual Rights and Expression, Electronic Frontier Foundation, and others. Each brief focuses on a different reason why the Supreme Court should strike down this anti-free speech age verification law, such as:

• The law’s ineffectiveness in protecting children and its potential for causing unintended harm to them;
• The risks the law poses for bookstores, libraries, and mainstream websites;
• The serious privacy and security threats the law imposes on people visiting websites required to collect IDs or other personal information;
• The significant differences between requiring in-person and online ID checks; and
• The broad harms posed to free speech if the Supreme Court upholds a Fifth Circuit ruling that strict scrutiny does not apply whenever the aim of a law is to protect children.

The following comments are from amici who submitted briefs:

Robert Cunningham, president and CEO, International Centre for Missing & Exploited Children:

“The Fifth Circuit’s ruling is troubling because, if left to stand, it would mean that laws like Texas H.B. 1181 will not be given the scrutiny needed to ensure that they do not cause more harm than good to the children they purport to protect.”

Lisa Femia, staff attorney, Electronic Frontier Foundation:

“Texas’ age verification law robs internet users of anonymity, exposes them to privacy and security risks, and blocks some adults entirely from accessing sexual content that’s protected under the First Amendment. Applying longstanding Supreme Court precedents, other courts have consistently held that similar age verification laws are unconstitutional. To protect freedom of speech online, the Supreme Court should clearly reaffirm those correct decisions here.”

Thomas Berry, legal fellow and editor-in-chief of the Cato Supreme Court Review, CATO Institute:

“While the protection of children is a goal everyone can agree on, courts must not tolerate state lawmakers’ Internet restrictions that infringe the First Amendment freedoms of adults.”

Paul Sherman, senior attorney, Institute for Justice:

“The Fifth Circuit made a classic error: It evaluated Texas’s law based on the legislature’s supposed motives for enacting it, rather than by examining who it regulates and what it does. But that is not how the First Amendment works. Texas regulates publishers of fully protected speech. Regardless of the government’s motives, those regulations are subject to the highest level of First Amendment scrutiny. The Fifth Circuit’s holding that they receive no First Amendment scrutiny at all is wrong and sets a dangerous precedent that threatens a wide array of non-offensive speech.”

Eric Goldman, associate dean for research and professor, Santa Clara University School of Law:

“The Fifth Circuit's opinion treated offline and online age authentication as the same, but this is a false equivalency. Compared to offline processes, online age authentication increases publishers' costs, prevents children and adults from accessing constitutionally protected content, and exposes all consumers to significant privacy and security risks. If the legislature truly cared about "protecting" children, making them more vulnerable to privacy and security risks is a policy fail.”

Free Speech Coalition v. Paxton is one of several cases in which the ACLU has urged courts to reject age verification schemes that would burden the free speech rights of internet users as part of the organization’s long tradition of defending online free expression.