The Supreme Court will hear arguments on Wednesday in a case that will determine whether states can violate adults’ First Amendment rights to access sexual content online by requiring them to verify their age.
The case, Free Speech Coalition v. Paxton, could have far-reaching effects for every internet users’ free speech, anonymity, and privacy rights. The Supreme Court will decide whether a Texas law, HB1181, is constitutional. HB 1811 requires a huge swath of websites—many that would likely not consider themselves adult content websites—to implement age verification.
The plaintiff in this case is the Free Speech Coalition, the nonprofit non-partisan trade association for the adult industry, and the Defendant is Texas, represented by Ken Paxton, the state’s Attorney General. But this case is about much more than adult content or the adult content industry. State and federal lawmakers across the country have recently turned to ill-conceived, unconstitutional, and dangerous censorship legislation that would force websites to determine the identity of users before allowing them access to protected speech—in some cases, social media. If the Supreme Court were to side with Texas, it would open the door to a slew of state laws that frustrate internet users’ First Amendment rights and make them less secure online. Here’s what you need to know about the upcoming arguments, and why it’s critical for the Supreme Court to get this case right.
1. Adult Content is Protected Speech, and It Violates the First Amendment for a State to Require Age-Verification to Access It.
Under U.S. law, adult content is protected speech. Under the Constitution and a history of legal precedent, a legal restriction on access to protected speech must pass a very high bar. Requiring invasive age verification to access protected speech online simply does not pass that test. Here’s why:
While other laws prohibit the sale of adult content to minors and result in age verification via a government ID or other proof-of-age in physical spaces, there are practical differences that make those disclosures less burdensome or even nonexistent compared to online prohibitions. Because of the sheer scale of the internet, regulations affecting online content sweep in millions of people who are obviously adults, not just those who visit physical bookstores or other places to access adult materials, and not just those who might perhaps be seventeen or under.
First, under HB 1181, any website that Texas decides is composed of “one-third” or more of “sexual material harmful to minors” is forced to collect age-verifying personal information from all visitors—even to access the other two-thirds of material that is not adult content.
Second, while there are a variety of methods for verifying age online, the Texas law generally forces adults to submit personal information over the internet to access entire websites, not just specific sexual materials. This is the most common method of online age verification today, and the law doesn’t set out a specific method for websites to verify ages. But fifteen million adult U.S. citizens do not have a driver’s license, and over two million have no form of photo ID. Other methods of age verification, such as using online transactional data, would also exclude a large number of people who, for example, don’t have a mortgage.
The personal data disclosed via age verification is extremely sensitive, and unlike a password, often cannot easily (or ever) be changed.
Less accurate methods, such as “age estimation,” which are usually based solely on an image or video of their face alone, have their own privacy concerns. These methods are unable to determine with any accuracy whether a large number of people—for example, those over seventeen but under twenty-five years old—are the age they claim to be. These technologies are unlikely to satisfy the requirements of HB 1181 anyway.
Third, even for people who are able to verify their age, the law still deters adult users from speaking and accessing lawful content by undermining anonymous internet browsing. Courts have consistently ruled that anonymity is an aspect of the freedom of speech protected by the First Amendment.
Lastly, compliance with the law will require websites to retain this information, exposing their users to a variety of anonymity, privacy, and security risks not present when briefly flashing an ID card to a cashier.
2. HB1181 Requires Every Adult in Texas to Verify Their Age to See Legally Protected Content, Creating a Privacy and Data Security Nightmare.
Once information is shared to verify a user’s age, there’s no real way for a website visitor to be certain that the data they’re handing over is not going to be retained and used by the website, or further shared or even sold. Age verification systems are surveillance systems. Users must trust that the website they visit, or its third-party verification service, both of which could be fly-by-night companies with no published privacy standards, are following these rules. While many users will simply not access the content as a result—see the above point—others may accept the risk, at their peril.
There is real risk that website employees will misuse the data, or that thieves will steal it. Data breaches affect nearly everyone in the U.S. Last year, age verification company AU10TIX encountered a breach, and there’s no reason to suspect this issue won’t grow if more websites are required, by law, to use age verification. The more information a website collects, the more chances there are for it to get into the hands of a marketing company, a bad actor, or someone who has filed a subpoena for it.
The personal data disclosed via age verification is extremely sensitive, and unlike a password, often cannot easily (or ever) be changed. The law amplifies the security risks because it applies to such sensitive websites, potentially allowing a website or bad actor to link this personal information with the website at issue, or even with the specific types of adult content that a person views. This sets up a dangerous regime that would reasonably frighten many users away viewing the site in the first place. Given the regularity of data breaches of less sensitive information, HB1811 creates a perfect storm for data privacy.
3. This Decision Could Have a Huge Impact on Other States with Similar Laws, as Well as Future Laws Requiring Online Age Verification.
More than a third of U.S. states have introduced or enacted laws similar to Texas’ HB1181. This ruling could have major consequences for those laws and for the freedom of adults across the country to safely and anonymously access protected speech online, because the precedent the Court sets here could apply to both those and future laws. A bad decision in this case could be seen as a green light for federal lawmakers who are interested in a broader national age verification requirement on online pornography.
It’s also not just adult content that’s at risk. A ruling from the Court on HB1181 that allows Texas violate the First Amendment here could make it harder to fight state and federal laws like the Kids Online Safety Act which would force users to verify their ages before accessing social media.
4. The Supreme Court Has Rightly Struck Down Similar Laws Before.
In 1997, the Supreme Court struck down, in a 7-2 decision, a federal online age-verification law in Reno v. American Civil Liberties Union. In that landmark free speech case the court ruled that many elements of the Communications Decency Act violated the First Amendment, including part of the law making it a crime for anyone to engage in online speech that is “indecent” or “patently offensive” if the speech could be viewed by a minor. Like HB1181, that law would have resulted in many users being unable to view constitutionally protected speech, as many websites would have had to implement age verification, while others would have been forced to shut down.
Because courts have consistently held that similar age verification laws are unconstitutional, the precedent is clear.
The CDA fight was one of the first big rallying points for online freedom, and EFF participated as both a plaintiff and as co-counsel. When the law first passed, thousands of websites turned their backgrounds black in protest. EFF launched its “blue ribbon” campaign and millions of websites around the world joined in support of free speech online. Even today, you can find the blue ribbon throughout the Web.
Since that time, both the Supreme Court and many other federal courts have correctly recognized that online identification mandates—no matter what method they use or form they take—more significantly burden First Amendment rights than restrictions on in-person access to adult materials. Because courts have consistently held that similar age verification laws are unconstitutional, the precedent is clear.
5. There is No Safe, Privacy Protecting Age-Verification Technology.
The same constitutional problems that the Supreme Court identified in Reno back in 1997 have only metastasized. Since then, courts have found that “[t]he risks of compelled digital verification are just as large, if not greater” than they were nearly 30 years ago. Think about it: no matter what method someone uses to verify your age, to do so accurately, they must know who you are, and they must retain that information in some way or verify it again and again. Different age verification methods don’t each fit somewhere on a spectrum of ‘more safe’ and ‘less safe,’ or ‘more accurate’ and ‘less accurate.’ Rather, they each fall on a spectrum of dangerous in one way to dangerous in a different way. For more information about the dangers of various methods, you can read our comments to the New York State Attorney General regarding the implementation of the SAFE for Kids Act.
The Supreme Court Should Uphold Online First Amendment Rights and Strike Down This Unconstitutional Law
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. Age-verification laws like this one reach into fully every U.S. adult household. We look forward to the court striking down this unconstitutional law and once again affirming these important online free speech rights.
For more information on this case, view our amicus brief filed with the Supreme Court. For a one-pager on the problems with age verification, see here. For more information on recent state laws dealing with age verification, see Fighting Online ID Mandates: 2024 In Review. For more information on how age verification laws are playing out around the world, see Global Age Verification Measures: 2024 in Review.
This post was originally published on here
