SCOTUS Age-Verification Ruling Expected to Have Broad Impact
The U.S. Supreme Court's June decision that upheld a Texas law requiring age verification for access to porn sites (see 2506270041) could have wide implications for future legislation at the federal and state levels, said privacy lawyers.
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For example, despite the SCOTUS decision in Free Speech Coalition v. Paxton, "Courts may still be reluctant to uphold federal laws that regulate general-purpose websites or restrict access to content that minors have a constitutional right to view and share, meaning Congress shouldn’t dismiss these concerns as it considers kids safety legislation," said Jeffrey Westling, director of technology and innovation policy at the American Action Forum in a Monday blog post.
While "more general kid safety bills such as the App Store Accountability App, the Kids Off Social Media Act, and the Kids Online Safety Act all raise similar First Amendment concerns" and may have stronger legal grounds following Paxton, the decision was "narrowly held to the question of age verification for websites whose main purpose was hosting sexually explicit material that minors do not have a constitutional right to view," he added.
"Unlike the Texas law, however, these bills would not just apply to pornographic websites, and the Court’s recent logic could create greater judicial deference for such restrictions," Westling added. "If so, a court could apply intermediate scrutiny for age-verification efforts."
In addition, "many of the laws would still fail intermediate scrutiny due to the vast amount of protected speech that would be affected, though improvements in age verification technology could mitigate these harms."
On July 24, Perkins Cole lawyers blogged that "taken to its logical end, [Paxton] appears to hold that states may impose stringent and specific age-verification requirements for websites that house obscene content -- which could deter adult consumers who are required to jump through these hoops to access this content."
"Such requirements could carry varying degrees of burdens and disincentives: while the majority gave great deference to the use of age verification, it did not label the practice as the be-all and end-all," Perkins Cole added. "Instead, states could theoretically impose other requirements, which may have potential privacy and logistical complications, such as parental signatures, biometric identification, or in-person ID checks."
The lawyers noted the majority's embrace of intermediate scrutiny "in this context could signal greater openness for a whole host of laws that sequester age-inappropriate content using various methods."
If Paxton "is any indicator, this First Amendment analysis will also be judged from the perspective of the adult user, not the company that is obligated to comply," so "companies will need to monitor such changes, evaluating them against the elastic measure of intermediate scrutiny to assess whether a law passes constitutional muster."