Didn’t We Already Do This? Twenty Years After Supreme Court Rejected Age Verification Law, It Takes Up New Case

Just when you thought the internet was safe from the meddling minds of the Supreme Court, the Justices have decided to take another crack at reviewing whether or not a new set of state regulations of the internet violates the First Amendment. And this time, it has a “but won’t you think of the children online” element to it as well.

Just a day after concluding decisions for the last term and (thankfully) not destroying the internet with its NetChoice decisions, the Supreme Court released a new order list regarding petitions for cert and announced that it would be taking Free Speech Coalition’s challenge to Texas’ internet age verification law, giving it yet another chance to potentially screw up the internet (or, hopefully, to reinforce free speech rights).

If you haven’t been following this case, it’s an important one for the future of privacy and speech online, so let’s bring everyone up to speed.

Two decades ago, there was an early moral panic about kids on the internet, and Congress went nuts passing a variety of laws aiming to “protect the children online.” Two of the bigger attempts — the Communications Decency Act and the Child Online Protection Act — were dumped as unconstitutional in Reno v. ACLU and Ashcroft v. ACLU.

Among other things, the Reno case established that the First Amendment still applies in online scenarios (meaning governments can’t pass laws that suppress free speech online) and the Ashcroft case established that age restricting access to content online was unconstitutional as it failed “strict scrutiny” (necessary to uphold a law that has an impact on speech). In large part, it failed strict scrutiny because it was not the “least restrictive means” of protecting children and would both likely block kids from accessing content they had a First Amendment right to access while also blocking adults from content they had a right to access.

However, we’re deep in the midst of a very similar moral panic about “the kids online” these days, despite little actual evidence to support the fearmongering. Nonetheless, a ton of states have been passing all kinds of “protect the kids online” laws. This is across both Republican and Democrat-controlled states, so it’s hardly a partisan type of moral panic.

Multiple courts have been (rightly) tossing these laws out as unconstitutional one after another, with many (rightly) pointing to the decision in Ashcroft and pointing out that the Supreme Court already decided this.

Many of the age verification laws (especially those in Republican-controlled states) have been focused specifically on adult content websites, saying those sites in particular are required to age gate. And while it makes sense that children should not have easy access to pornographic content, there are ways to limit such access without using problematic age verification technology, which puts privacy at risk and is not particularly effective. Indeed, just a couple weeks ago, an age verification vendor used by many internet companies was found to have leaked personal data on millions of people.

Allowing age verification laws online would do tremendous damage to the internet, to kids, and to everyone. It would create a regime where anonymity online would be effectively revoked, and people’s private data would be at risk any time they’re online. People keep pitching ideas around “privacy-protective age verification” which is one of those concepts, like “safe backdoors to encryption,” that politicians seem to think is doable, but in reality is impossible.

One of the many states that passed such a law was Texas, and like most other states (the only exceptions to date have been on procedural grounds in states where a suit can’t be filed until someone takes action against a site for failing to age-gate) the district court quickly tossed out the law as obviously unconstitutional under the Ashcroft ruling.

But, just months later, the Fifth Circuit (as it has been known to do the past few years) decided that it could ignore Supreme Court precedent, overturn the lower court, and put the law back into effect. I wrote a big long post explaining the nutty thinking behind all this, but in effect, the Fifth Circuit decided that it didn’t have to follow Ashcroft because that only dealt with “strict scrutiny,” and the Judges on the Fifth Circuit believed that a law like this need only face intermediate scrutiny, and on that basis the law was fine.

Again, this bucked every possible precedent. And just last week, as yet another trial court, this time in Indiana, threw out a similar law, the judge there walked through all the many reasons the Fifth Circuit got things wrong (the Indiana court was not bound by the Fifth Circuit, but the state of Indiana had pointed to the Fifth’s ruling in support of its law).

Back in April, we had explained why it was important for the Supreme Court to review the Fifth Circuit’s bizarre ruling, and that’s where things stand now, thanks to them granting cert.

Of course, it’s anyone’s guess as to how the Supreme Court will rule, though there are a few signs that suggest it may use this to smack down the Fifth Circuit and remind everyone that Ashcroft was decided correctly. First, especially this past term, the Supreme Court has been aggressively smacking down the Fifth Circuit and its series of crazy rogue rulings. So it’s already somewhat primed to look skeptically at rulings coming out of the nation’s most ridiculous appeals court.

Second, if the Fifth’s reasoning wasn’t nutty, then there would be little to no reason to take the case. Again, the Court already handled nearly this very issue twenty years ago, and the Fifth Circuit is the first to say it can just ignore that ruling.

That said, any time the Supreme Court takes up an internet issue, you never quite know how it’s going to end up, especially given Justice Kagan’s own comment on herself and her colleagues that “these are not, like, the nine greatest experts on the internet.”

On top of that, any time you get into “for the children” moral panics, people who might otherwise be sensible seem to lose their minds. Hopefully, the Supreme Court takes a more sober approach to this case, but I recognize that “sober analysis” and this particular Supreme Court are not always things that go together.