Texas age verification law mostly unconstitutional: US district court judge

In court battles over age assurance, victory can be a matter of perspective. A Texas judge has ruled that the state’s online child protection law, Texas HB 18 (SCOPE, or the Securing Children Online Through Parental Empowerment Act) is an unconstitutional violation of the First Amendment. But the Age Verification Providers’ Association (AVPA) notes on social media that “the ruling didn’t find that the entirety of HB 18 posed a threat to First Amendment-protected speech, and some provisions – like the data collection rules and the age verification for sites with large amounts of adult content – remain in force.”

“U.S. federal judges are now generating strong signals about which measures to protect children online will survive constitutional challenges, and which will fail,” AVPA Director Iain Corby added in comments emailed to Biometric Update. “A clearer pathway is emerging about how best to draft laws which do not challenge the heart of the First Amendment but can still offer a higher level of protection to children than adults. And to deliver that, age assurance is not a feature that automatically fails legal scrutiny in the USA – it just needs to be applied judiciously.”

Still, the law was set to go into effect on September 1 but is now in legal limbo, its content monitoring and filtering requirements having been branded unconstitutional.

Law requiring age verification for adult content websites stinks: TechDirt

So goes the seesaw ride that tries to balance constitutionality with measures to prevent kids from accessing adult content online, or shield them from the proven risks of social media. Writing in TechDirt, editor Mike Masnick offers the opinion that the decision is “a mostly good ruling by Judge Robert Pitman, who had also made an amazingly good ruling three years ago throwing out Texas’ other social media content moderation law.”

It’s mostly good, he says, “in that it calls out the most obviously unconstitutional bits and blocks Texas from enforcing them.” But for Masnick, it remains problematic that the judge allows provisions on data privacy, parental control and disclosure to go forward “on the grounds that CCIA & NetChoice failed to show how those provisions violate the First Amendment,” in that they largely concern conduct and not speech. “While the Court can conceive of ways in which they do burden speech,” the ruling says, giving the example of limiting a child’s access to speech on social media, “that point is not sufficiently developed at this stage.”

Masnick, for whom AVPA’s good news is his irritation, notes that the case “is up against the backdrop of a third bad Texas law, the one requiring age verification for adult content websites.” He says a different judge last year pointed out “how obviously unconstitutional age verification is” – but, “once again, the Fifth Circuit then made a mess of things, saying that it could ignore multiple precedents and that age verification was fine. The Supreme Court recently agreed to hear that case, meaning that at least some part of this law (which has an age verification component) is going to need to wait until the Supreme Court sorts out the previous case.”

Harmful content ill defined, could lead to ambiguous interpretation

The Verge has a good summary of SCOPE’s scope. Under the law, “any service whose content is deemed more than one-third harmful or obscene (as defined by an existing Texas statute) must implement a ‘commercially reasonable age verification method.’” The law, it says, requires “a range of web services, particularly large social networks, to apply special rules to users whose registered age is under 18. That includes limiting data collection, banning targeted advertising, and not allowing financial transactions without parental consent.” An unusual condition requires services to make a plan to “prevent the known minor’s exposure to harmful material.” That can include content deemed to be obscene, content that promotes suicide, self-harm or substance abuse, and online grooming.

If you find yourself wondering whether Guinness mightn’t find itself liable for proclaiming it a lovely day for a pint, so does Judge Pitman. Part of his objection to HB 18 concerns problematic definitions. “At what point, for example, does alcohol use become ‘substance abuse?’ When does an extreme diet cross the line into an ‘eating disorder?’,” the judge writes.

He summarizes the decision with an argument that the law labels online content somewhat arbitrarily, considering all of the varieties of information and opinion covering every topic. One man’s groomer, for instance, may be another’s Democrat. “In its attempt to block children from accessing harmful content, Texas also prohibits minors from participating in the democratic exchange of views online,” writes Pitman. “Even accepting that Texas only wishes to prohibit the most harmful pieces of content, a state cannot pick and choose which categories of protected speech it wishes to block teenagers from discussing online.”

If this all sounds familiar, it’s because the specific sparring over HB 1181, a law addressing age verification for adult content, went much the same way, at the same time last year.

Article Topics

age verification  |  AVPA  |  biometrics  |  face biometrics  |  lawsuits  |  Netchoice  |  social media  |  Texas