As FIRE explained in its amicus brief urging the Court to review and reverse the ruling, this is an important case for online speech. These kinds of age-verification laws are just the latest in a long line of attempts to burden adult access to constitutionally protected speech. And unfortunately, Texas has lots of company in trying once again to flout the First Amendment. To understand the stakes, a closer look is warranted.
Defending the First Amendment often entails fighting laws supposedly designed to protect children from allegedly harmful content, be it jazz, comic books, heavy metal, or video games β and sexual content. In Butler v. In United States v. The problem with age verification laws is they place a burden on every consumer β adults included β to access constitutionally protected speech.
Recently, states have again turned to age-verification laws as their vehicle of choice for restricting adult content. The problem with age-verification laws is they place a burden on every consumer β adults included β to access constitutionally protected speech. It usually means handing over your government ID for a platform or verification service to copy, entering the last four digits of your Social Security number, or even submitting to biometric facial scanning.
The Supreme Court has rightly required courts to be very exacting in reviewing laws that infringe adult access to constitutionally protected speech by targeting specific content. Requiring adults to verify their age before accessing lawful pornography encumbers their ability to view constitutionally protected speech based on its content. Notably, two Supreme Court First Amendment cases from the late s and early s made clear that application of strict scrutiny to such age-verification laws is required.
And in both cases, the laws could not withstand this exacting constitutional review. In , the Supreme Court held in Reno v. It instead applied the far more deferential rational basis test, under which a law survives so long as its restrictions reasonably relate to a legitimate governmental interest.
