You Can’t Wish Away The 1st Amendment To Mandate Age Verification

So, we’ve been talking a lot about age verification of late, as governments around the world have all (with the exception of Australia?!?) seemed to settle on that as a solution to “the problem” of the internet (exactly what that problem is they cannot quite identify, but they’re pretty sure there is one). Of course, as we’ve explained time and time again, age verification creates all sorts of problems, including undermining both privacy and speech rights.

That’s why it was little surprise to us (though we warned the politicians pushing these bills) that a series of age verification bills have recently been found to be easily and clearly unconstitutional under the 1st Amendment. And it seems likely that other such bills will soon meet a similar fate.

David French, who recently became a NY Times columnist and is a long term free speech defender/constitutional litigator, has apparently chosen as his weird hill to die on, that the 1st Amendment should not stop age verification laws. While there are many, many things that I disagree with French on, historically, he’s been pretty good on internet speech issues. So it’s a little weird that he’s so focused on undermining the 1st Amendment over his own views regarding adult content.

Before the recent set of rulings reaffirming that these laws violate the 1st Amendment, French had suggested that age verification laws around adult content should be found to be constitutional. But, now that multiple courts have ruled otherwise, French took to the pages of the NY Times to argue that courts are misreading longstanding 1st Amendment precedents and that we should be able to mandate age verification and legally block kids from seeing adult content online.

So why not bring our offline doctrines to the online world? If we can impose age limits and age verification offline, we can online as well. If we can zone adult establishments away from kids offline, we can online as well. And if we do these things, we can improve the virtual world for our children without violating the fundamental rights of adults.

The underlying argument is that the precedential rulings in Reno v. ACLU and Ashcroft v. ACLU (the cases that killed as unconstitutional two earlier attempts to lock up the internet for kids: the Communications Decency Act and the Child Online Protection Act) were narrower than everyone believes, and were based on the state of technology at the time, rather than where it is today:

Our nation tried this before. In 1996, Congress passed the Communications Decency Act, which — among other things — criminalized the “knowing” transmission of “obscene or indecent” material online to minors. In 1997, however, the Supreme Court struck down the act’s age limits in Reno v. A.C.L.U., relying in part on a lower court finding that there “is no effective way to determine the identity or the age of a user who is accessing material through email, mail exploders, newsgroups or chat rooms.”

The entire opinion is like opening an internet time capsule. The virtual world was so new that the court spent a considerable amount of time explaining what the World Wide Web — when was the last time you heard that phrase? — even was. The internet was so new and the technology so comparatively primitive that the high court, citing a U.S. District Court finding, observed in its opinion that “credit card verification was ‘effectively unavailable to a substantial number of internet content providers.’”

Indeed, critical to the Supreme Court’s opinion was the lower court’s finding “that at the time of trial existing technology did not include any effective method for a sender to prevent minors from obtaining access to its communications on the internet without also denying access to adults.”

In 1998, Congress tried again, passing the Child Online Protection Act, but in 2004 a closely divided Supreme Court blocked enforcement. Its decision was based in part on the naïve belief that blocking and filtering technologies were “less restrictive alternatives” to the law. But time has demonstrated that blocking and filtering aren’t “less restrictive”; they’re wholly inadequate.

As French concludes, with more modern age verification technology, those precedents suggest that if the tech is better, than the concerns in those cases no longer apply, and the laws can be constitutional:

Thus, our nation’s challenge is more technical than constitutional. The best way to understand the court’s old precedents regarding online age verification to get access to pornography is not that it said “no” but rather that it said “not yet.” But now is the time, the need is clear, and the technology is ready. Congress should try once again to clean up the internet the way cities cleaned up their red-light districts. The law must do what it can to restrict access to pornography for children online.

There’s just one of (actually) many problems with this. It’s not true. It’s not true that the earlier precedents were that limited, and it’s not true that today’s “technology is ready.”

Thankfully, 1st Amendment lawyer Ari Cohn has a pretty thorough response to French that is mandatory reading if you found French’s argument compelling.

The 1st Amendment, and the key precedents around it, are not nearly as malleable as French believes, Cohn notes.

French’s thesis can be distilled to two basic arguments: first, there is no constitutional right to “convenient pornography, and second, that established precedent declaring government-mandated age verification unconstitutional is “outdated.” And so, he concludes, the problem is “more technical than constitutional.” But those arguments, and his conclusion, couldn’t be farther from the truth.

Reducing the controversy to one about “convenient pornography” grossly minimizes the First Amendment issues at stake. Like it or not, pornography—and adults’ ability to access it—is constitutionally protected. So despite this attempt to otherize it, what we are talking about is speech. And speech does not become any less speech merely because some people find it “icky” or morally questionable.

The key bit, and perhaps the most important part, is that French’s claim of moving “offline doctrines” into the “online world,” seems to involve him misunderstanding “offline doctrines.”

French points to “ID requirements for strip clubs and other adult establishments,” arguing that we already require some loss of anonymity to access adult materials offline. Maybe so. But first, few if any laws explicitly require checking IDs—establishments do so voluntarily to avoid potential liability from providing entrance or materials to minors.

More importantly, there is a world of difference between a quick glance at an ID to check date of birth, and uploading identity documents to the internet that create a record of a user’s access.

Online data about us is collected, stored, shared, sold, and used at a galactic level. If anything, the chilling effect of age verification is significantly worse than it was 20 years ago. The effect of creating that kind of digital trail is several orders of magnitude greater than handing over an ID to a bouncer or store clerk—who likely could not remember your name seconds after handing it back.

Comparison of those two drastically different scenarios is reminiscent of the government’s argument in the door-to-door canvassing case: that canvassers necessarily reveal part of their identity by simply showing up at someone’s doorstep, perhaps someone who already knows them. The Supreme Court forcefully rejected that argument, finding that it did not mitigate the constitutional concerns.

Furthermore, in the few cases French can point to where “offline doctrine” has limited children’s access to adult content, as Cohn notes, those laws don’t chill 1st Amendment rights:

… having to travel a little farther to reach a business does not chill a patron’s First Amendment rights; compelling adults to sacrifice their anonymity before accessing disfavored content plainly does.

As for the ruling in Reno that French suggests is obsolete? Cohn points out that French is really annoyed about the facts, not the legal standards:

The principles laid out in Reno remain sound: the First Amendment protects online speech the same as offline speech, and any content-based restrictions must satisfy strict scrutiny—that is, the law must be narrowly tailored to serve a compelling government interest, and must be the least restrictive means of accomplishing the government’s goal. Far from being outdated, this remains the analytical approach the court uses to assess any content-based speech regulation.

French’s real issue is with the facts and evidence presented in Reno. But Reno has never precluded arguing that new facts and circumstances militate a different outcome; it simply held that on the record before the court, the law was unconstitutional. The question is not whether Reno should be revisited, but rather whether these new laws, under new facts, can satisfy the relatively routine constitutional analysis that the Reno court applied.

As for the idea that modern credit card technology changes the ballgame by making age verification effective, Cohn breaks that down as well:

French argues that because “secure credit card use and age verification are practically ubiquitous,” we have evolved past Reno’s assessment that credit card verification is “effectively unavailable.” In doing so, he misses the true meaning of “effectively unavailable.” Reno, and thecases that followed, found that credit card age verification failed to render the law “narrowly tailored” because it doesn’t actually verify age.

And nothing has changed in that respect. Neither entering a credit card nor uploading a picture of an ID actually verifies that it is that person who has provided the identity information. It’s just as easy to borrow an older sibling’s ID as it is to borrow a parent’s credit card. And while there are new forms of age verification that utilize selfies or video, a quick Google search turns up countless pages on fooling such systems using free, easy-to-use software. Whatever the advances in technology since 2008, they have not yet solved this fatal problem.

Reno and its progeny also held that parental controls and content filtering were less restrictive alternatives than age verification. French argues that we have now learned they are “wholly inadequate.”

But is that so? French doesn’t provide a basis for this claim.

And, in fact, Judge Ezra noted that Texas’ own studies tended to show that content filtering and parental controls would be more effective, and better tailored, than age verification.

Perhaps French believes such measures are inadequate because parents lack the knowledge and ability to implement them. But that does not allow the government to sidestep them as a less restrictive means: “A court should not assume a plausible, less restrictive alternative would be ineffective; and a court should not presume parents, given full information, will fail to act.”

There’s a lot more in Cohn’s analysis, but it saves me from having to do a similar breakdown myself.

The 1st Amendment still applies, and as courts in Texas and Arkansas (and hopefully soon in California) have rightly found, these laws do not get anywhere close to passing the standards required to get around the 1st Amendment.