DOJ Says 5th Circuit Erred in How It Reviewed Texas Age-Verification Law

The U.S. Supreme Court mustn’t discourage states and Congress from trying to prevent children from accessing pornography online, the federal government said in an amicus brief Monday. However, SCOTUS should correct the 5th U.S. Circuit Court’s error of using rational-basis review to support a Texas law requiring age-verification on porn websites, said DOJ. The Supreme Court received a flurry of briefs this week from amici supporting the Free Speech Coalition's challenge of the Texas law. FSC is a porn industry trade association. The American Civil Liberties Union represents it.

SCOTUS precedent supports applying strict scrutiny, a standard that forces the court to ask if it's the least restrictive way to advance the government's interest, wrote DOJ. The government cited the Supreme Court’s decision blocking the Child Online Protection Act, a similar federal law from 1998, because the court found that blocking and filtering software provided a less restrictive way than what COPA required. But rather than subjecting the Texas law to strict scrutiny, the 5th Circuit reasoned the measure could survive a rational-basis review due to evidence of porn's harm to children.

The Supreme Court “should follow its usual practice by vacating the [5th Circuit] decision … and remanding to allow the court of appeals to apply the proper standard in the first instance,” said DOJ. “However, the Court should make clear that the First Amendment does not prohibit Congress and the States from adopting appropriately tailored measures to prevent children from accessing harmful sexual material on the Internet -- potentially including age-verification requirements analogous to those that have long been applied to the distribution of such material in the physical world."

The government said it disagrees with petitioners asking SCOTUS to hold that the Texas law likely fails strict scrutiny. DOJ takes “no position on whether [the Texas anti-porn law] or any other specific law or proposal satisfies strict scrutiny,” it said. “But the Court should not adopt petitioners’ view of that standard, which would threaten to foreclose effective regulation addressing an important problem that has only become more urgent in the years since the Court last considered it."

"With the mass proliferation of online pornography and Internet-enabled devices, the compelling interest of federal, state, and local governments in protecting children from harmful sexual material is more pressing than ever,” DOJ wrote. “Appropriately tailored age-verification laws and regulations may be a necessary element of governmental efforts to accomplish that compelling objective, and thus may be permissible under the applicable First Amendment standards.”

Book publishers, academics and more nonprofits joined others calling for reversing the 5th Circuit in other amicus briefs posted Monday.

While the Texas law may be focused on porn websites, sustaining the 5th Circuit's rational-basis standard would have implications for bookstores, libraries, publishers and authors, said a coalition including the Authors Guild, the Association of American Publishers and the Independent Book Publishers Association. The appeals court "radically deviated” from SCOTUS and other courts that “have consistently held that when a content-based restriction on adults arises collaterally in connection with restrictions on access by minors to sexually frank material, constitutionality would be determined based on a strict scrutiny test.”

“The arrival of new media is frequently accompanied by concern about protecting minors from accessing new forms of information and expression in new ways,” noted the National Coalition Against Censorship, representing about 50 national nonprofit artistic, religious, educational and other groups. “This Court has repeatedly, and rightly, rebuffed government attempts to respond to that concern by limiting or burdening access to speech that is constitutionally protected -- for adults and for minors alike.” The coalition added that speech “that may be harmful to a five-year-old might be acceptable -- even vital -- for a person of seventeen,” but the Texas law “is dangerously overbroad, notably underinclusive, and subject to arbitrary application.”

Device-level age verification and content filtering is a better way to protect children from harmful content, said the International Centre for Missing and Exploited Children. Laws like the one in Texas, "which rely on website-based age verification, are an ineffective solution that will only result in downstream harm to children, by encouraging the use of virtual private networks and encouraging children to visit websites unreachable by U.S. laws,” it said. “Such laws also chill children’s speech and their parents’ rights to make decisions on what their children see.”

Atsign said it sells a service that "would allow secure verification without exposing any sensitive data and depriving people of autonomy.” But the Texas law forces visitors to provide sensitive and personally identifiable data, said the data security and identity management vendor. “An age-restricted website needs to know just one thing about a person seeking access -- whether they are of age. Yet Texas’s age-verification policy forces people to expose substantial amounts of unrelated, sensitive personal information to entities they do not trust.”

"The fundamental protections of the First Amendment, which include the right to anonymous speech, are inherently at odds with age verification laws imposed on sexually explicit websites,” wrote constitutional scholars including Clay Calvert, American Enterprise Institute senior fellow; Lyrissa Lidsky, University of Florida law professor; and Nadine Strossen, New York Law School professor. They said the Texas age-verification requirements “undermine this constitutional protection by forcing individuals to reveal personal information, chilling free expression and disproportionately impacting marginalized groups who are less likely to possess identification or are more vulnerable to errors in identity verification systems.” The court posted amicus briefs from other law professors and civil liberties groups on Friday and earlier Monday (see 2409230013).