Friday, September 22, 2023

Age Verification & Free Speech: A Battle to Protect Our Children

age verification and children online

Recent court decisions have dealt a significant blow to state legislation aimed at mandating age verification through government IDs for internet usage. Both Texas and Arkansas faced legal setbacks this week, which could spell trouble for similar initiatives across the country.

Two Court Rulings for Internet Free Speech

On Thursday, a Texas law mandating age verification for accessing pornographic content was blocked for being unconstitutional. In a parallel legal development the same day, a federal court issued a preliminary injunction to halt an Arkansas law requiring age verification for new social media accounts. Both decisions share the underlying issue of how age and identity should affect internet access.

Ari Cohn, a free speech counsel at Techfreedom, said, “The two decisions are a resounding victory for free speech on the internet.” He emphasized that while the laws in question are relatively new, they hinge on longstanding legal questions related to speech and freedom.

Long-Standing Supreme Court Ruling Holds Sway

One consistent point of reference in these debates is the Supreme Court’s 1997 decision in Reno v. ACLU. This landmark case deemed unconstitutional sections of the Communications Decency Act of 1996 that sought to restrict adult content through age verification. This precedent has been upheld multiple times, most notably by the U.S. Court of Appeals for the 3rd Circuit in 2003 and 2008. Those rulings emphasized that age verification requirements could infringe on free speech and discourage anonymous information seeking.

Governors Still Push for Age Verification Laws

Despite these setbacks, proponents of age verification are undeterred. Utah Governor Spencer Cox, who was among the first to sign age verification legislation for social media, argued that circumstances have changed, pointing to the rise of platforms like Facebook and Twitter as reasons to revisit the issue. Cox contended that Reno v. ACLU was “wrongly decided” and that “new facts” necessitate state action.

The Future of Age Verification Laws

Though the legal process still needs to unfold for Texas and Arkansas, analysts expect state leaders to continue pushing for similar regulations. “State lawmakers understand that their constituents want them to take action, even if they don’t closely follow what happens after a law is passed,” said Jason Kelley, director of activism at the Electronic Frontier Foundation.

The Injunctions in Detail

U.S. District Judge David Alan Ezra granted a preliminary injunction against Texas’s age verification law, H.B. 1181, ruling that it violated First Amendment rights. Ezra suggested that better solutions exist to address parental concerns. On the same day, District Judge Timothy Brooks also granted an injunction against Arkansas’s law, citing similar constitutional concerns.

Chris Marchese, director of the NetChoice Litigation Center, said, “We’re pleased the court sided with the First Amendment, preventing Arkansas’ unconstitutional law from censoring free speech online.”

Broader Legal Context

Age verifying legislation has been gaining traction nationwide. Louisiana imposed age verification on adult content in January. Meanwhile, federal lawmakers are also considering age restrictions. A bill known as the Protecting Kids on Social Media Act, introduced by Sens. Brian Schatz (D-HI) and Tom Cotton (R-AK), proposes a minimum age of 13 for social media accounts, with parental approval required for users between 13 and 17.

However, tech industry representatives argue that such legislation could compromise user privacy and parental rights, signaling that the battle over age verification is far from over.


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