Americans look to the Supreme Court as an umpire in legal and constitutional disputes. There, controversies meet their resolutions, and circuit splits are closed. In some cases, though, the justice’s rulings yield more uncertainty than clarity.
Such a case was Free Speech Coalition v. Paxton, in which the Court’s majority upheld the constitutionality of a Texas law requiring online platforms hosting pornography to verify the ages of their users. Before Paxton’s resolution, enforced online age verification had been deemed an unconstitutional burden on Americans’ right to speak freely in the digital world. Online age verification — which usually involves the user uploading a scan of government documentation, such as a driver’s license, or submitting to a facial scan — imposes tremendous burdens on users. Databases of verification information, whether maintained by online platforms or third-party age verification services, are liable to be hacked or leaked. Users fear that, even absent data breaches, verification could compromise their online anonymity, to which, insofar as speech is concerned, they have a First Amendment right.
But Texas argued, and the majority agreed, that “power to require age verification is within a State’s authority to prevent children from accessing sexually explicit content,” as Justice Clarence Thomas explained. “To the extent that it burdens adults’ rights to access such speech, it has ‘only an incidental effect on protected speech,’” Thomas held. The majority’s language focused tightly on obscene material. The question to be answered by future litigation — the question from which the greatest uncertainty flows — is whether this reasoning shall be extended to online speech generally or remain cabined to obscene speech.
Myriad age-verification mandates — implicit and explicit — have appeared in statehouses and on Capitol Hill in recent years, taking many forms. In various instances, they have proposed to regulate access to pornographic websites, social media platforms, app stores — even devices themselves. The effect of such proposals is not uncertain: to condition Americans’ access to online speech and everyday online services on their provision of sensitive personal information.
Consider two alternative interpretations of Thomas’s majority opinion. The first, permissive interpretation: So long as the government defends its mandates with the contention that children might be harmed from exposure to the online content in question, any burdens imposed on adults’ access to the same speech are incidental and, therefore, likely to emerge unscathed from constitutional scrutiny.
Next, the narrow interpretation: obscene material is simply different, and ought to be treated differently, from other speech; that is, obscene material, due to its unique nature, ought to receive only partial First Amendment protection. Should this view obtain, recent decades’ First Amendment jurisprudence halting age-verification laws, including the rulings of the Supreme Court, would endure. Indeed, just this year, age-verification laws in Arkansas, Ohio, and Texas foundered in court on First Amendment shoals. A narrow, prudent reading of Paxton would continue to protect the bulk of online speech from the sorts of restrictions that, in the offline world, would be recognized widely as lethal to Americans’ freedoms of conscience and speech.
So, whither Paxton? An answer — or the beginnings of an answer — may materialize sooner than expected. Earlier this month, trade group NetChoice asked the Supreme Court to intervene in litigation concerning a Mississippi law imposing age verification on social media platforms. Mississippi further required such platforms to secure parental consent before accepting underage users, necessitating still more data collection to prove the identity of the parent and to authenticate the parent–child relationship.
NetChoice notes that Paxton “was expressly premised on the fact that the speech being regulated was ‘obscene to minors’ — a point this Court emphasized repeatedly.” Since the Court seemed to treat such content as a unique category of speech, its reasoning allows for “age verification to access websites that disseminate large amounts of pornography would be consistent with age verification at physical bookstores to access such content, if made available.” Even still, NetChoice argues, Paxton’s ruling does not “permit Mississippi to require age-verification to access fully protected speech for adults and minors.” The precedents the Court applied to uphold a statute regulating access to pornography cannot be extended to the regulation of online speech generally. The Mississippi law “as lacks a ‘brick-and mortar’ analogue,” the trade group states, “government-imposed age verification is not necessary (or permissible) to enter bookstores, theaters, or arcades.” A ruling for Mississippi would permit an entirely new kind of speech regulation to take hold, one heretofore unknown in the physical world.
As the NetChoice brief intimates, the migration of an ever greater share of everyday life online provides the government with new opportunities to monitor and control Americans’ speech, socialization, and commercial endeavors. First, the technological factors: Conversations had between friends in a living room cannot be snooped on or stymied by the state, but conversations had across digital networks can. Moreover, if the government tried to impose such an identity-verification regime in the real world, friction would ensue — as would public outrage. But in the intangible, frictionless digital world, the government finds it easier to intrude upon the liberty and privacy of the governed without much notice.
As judges, and particularly the justices of the Supreme Court, consider age-verification cases, they ought to remember: life online differs in many aspects from life offline, but if liberty is to continue to flourish and privacy to be preserved, Americans must not be subjected to a ubiquitous digital show-your-papers regime.
