What’s at Stake as Age Verification Comes Before the Supreme Court

Photo by Bill Mason

There are catchy phrases for legal non-doctrines that explain seeming anomalies in precedent. “Bad-man-stays-in-jail” doctrine, for example, recognizes that judges might bend the strict text of a law to uphold the conviction of a criminal convicted of horrific crimes. The “abortion distortion” referred to the logical writhing and wriggling in which judges would engage to accommodate the legal abnormalities of Roe v. Wade and its progeny.

The Supreme Court faced another such problem last week, as it held arguments in Free Speech Coalition (FSC) v. Paxton, a case testing a Texas statute, H.B. 1181, that requires websites to verify users’ ages before allowing them access to explicit material. (Specifically, the law binds commercial websites hosting content of which a third or more is “sexual material harmful to minors;” precisely how this requirement might be implemented in practice remains unclear and contested.) Although the Court has held mandated age-verification unconstitutional, several of the justices seemed loath to rebuke Texas for its attempt to block children’s pathway to pornography. Nobody wants children awash in that sort of content, and no judge relishes the prospect of facilitating their access to it. Ergo, the court may writhe and wriggle and warp current First Amendment jurisprudence to ensure H.B. 1181 stands.

As a legal matter, nobody denies the state’s interest in impeding pornography’s availability to minors. However, the First Amendment draws boundaries without which the state may not venture as it pursues that interest. Age-verification mandates affect users of all ages, and they impose significantly on adults’ access to protected speech, a category into which much explicit material falls.

Moreover, FSC v. Paxton implicates far more than the fate of any porn site — a fate about which many Americans, presumably, care very little. Pornography-specific mandates are the vanguard of a larger movement to age-gate the digital world. Already, several states have enacted age-verification mandates for social media. Should the justices succumb to their understandable distaste for pornographers and indicate that enforced age verification presents few, or no, First Amendment difficulties, a crucial pillar of the First Amendment’s protections in the digital age will have been toppled. Put aside pornography; the Court’s ruling could well resound across the internet.

Some have objected that age verification online resembles an age check at a liquor store or club. This fragile logic cracks under scrutiny. Legal inquiries must probe not just statutes’ intentions but their practical burdens on citizens and their infringements on the Constitution. Scanning one’s face or uploading a photograph of a government-issued document creates far greater privacy and security risks than merely flashing an ID to a bouncer at a bar. A law confronting users with the choice either to forfeit their access to speech or to submit sensitive personal data to a website ought not withstand First Amendment scrutiny. “There have been hacks of everything,” Justice Samuel Alito — no friend of the Free Speech Coalition — said during oral arguments, making a point he hadn’t intended. “[T]hat is exactly why age verification has an inherent chill to it,” the trade group’s advocate agreed, sounding as if he could hardly believe his luck. “Everyone knows what Your Honor just said.” Moreover, as other exchanges in the arguments made clear, the Texas Legislature, in drafting H.B. 1181, failed woefully to provide for even respectable cybersecurity protections.

From legislators to judges to the commentariat, far too many approach the digital world as if ordinary constitutional provisions and principles of good governance do not apply there. In the coming decades, online platforms will host, mediate, and guide a tremendous percentage of speech of all types, commercial, social, and political. A failure to ratify and reinforce the First Amendment’s protections for online speech — even inadvertently — would narrow Americans’ rights.

The principles laid down in the Court’s eventual ruling in FSC v. Paxton will lead places — for good or ill. They will be read by legislatures, appear in lower-court rulings, and, if ratified by subsequent law and jurisprudence, wriggle their way into the ordinary American’s conceptions about free speech and the internet. The justices should resist the urge to strike an easy blow against an unlikeable industry. In so doing, they would subvert the fundamentals of the First Amendment.

David B. McGarry is the research director for the Taxpayers Protection Alliance. He writes for Young Voices.