CDT, Professors Urge That SCOTUS Reject Texas Age-Verification Bill

The “current technological reality of implementing” a Texas bill requiring age-verification on porn websites “means that it will burden adults’ access to constitutionally protected speech,” said the Center for Democracy and Technology, other nonprofits and three privacy professors in an amicus brief Friday. The groups and academics supported a challenge by the Free Speech Coalition of a Texas law at the U.S. Supreme Court. FSC is a porn industry trade association represented by the American Civil Liberties Union (see 2409170012). “The limitations of current age verification technology -- and the difference between the internet’s inherent capability to transmit and make available uploaded identifying data and the ability of a stationery-store owner to recall such data from a quick flash of ID -- create a significantly higher burden on adult access to protected content,” the amici wrote in case 23-50627. Several other groups also supported the FSC in amicus briefs posted Monday. The Foundation for Individual Rights and Expression, Reason Foundation and the First Amendment Lawyers Association said jointly that the 5th U.S. Circuit Court of Appeals incorrectly granted the state “a free hand to force adult Texans to show their papers and surrender their privacy simply to access content protected by the First Amendment.” Another amici filing including TechFreedom and the Electronic Frontier Foundation said the 5th Circuit erroneously applied rational-basis review rather than strict scrutiny. Along similar lines, the Cato Institute wrote, “It is the government’s burden to prove that the law serves a compelling government interest and uses the least restrictive means to achieve that interest. Texas did not clear this high bar.” Agreeing with others, the Electronic Privacy Information Center wrote that it’s “important for [SCOTUS] to take special care in this case to apply a constitutional framework capable of distinguishing unconstitutional censorship laws from constitutional kids’ privacy and safety laws.” Meanwhile, the Institute for Justice said the Supreme Court should use the case to stop a “growing problem” of courts “selecting the standard of review based on the government’s professed motive rather than by examining the actual conduct subject to regulation under the law.” A group of internet law professors, including Eric Goldman of Santa Clara University's High Tech Law Institute, said age-verification gates online are costly, raise privacy concerns when they collect sensitive data, and discourage “readers from accessing constitutionally protected material.”