The Supreme Court’s opinion in Free Speech Coalition v. Paxton gave policymakers a big win in the battle for age verification for access to online pornography. But the broader war over age verification and parental consent online isn’t over. In fact, the majority’s opinion suggests that age verification for protected speech to minors will be subject to “strict scrutiny,” which it is unlikely to survive. Thus, the majority’s holding that unprotected, “obscene” speech to minors receives only “intermediate scrutiny” may be fairly narrow. Ultimately, this suggests that more expansive age-verification and parental consent regimes for social media or for the Internet more broadly through the app store or device filters are likely to fail under First Amendment analysis.
Free Speech Coalition v. Paxton
Under the First Amendment, regulations on speech receive either strict scrutiny, intermediate scrutiny, or rational basis review. Usually, content-based restrictions receive strict scrutiny, while content-neutral regulations that have an incidental effect on speech receive intermediate scrutiny. Strict scrutiny is the most exacting standard of review, requiring the government to use the least restrictive means among effective alternatives to achieve a compelling interest. Intermediate scrutiny requires less, and considers whether the law “advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests.” Here, the Fifth Circuit Court of Appeals didn’t even apply intermediate scrutiny, instead applying the lowest standard of review of rational basis, under which a law is deemed constitutional “if there is any reasonably conceivable state of facts that could provide a rational basis” for it. The Supreme Court took this case from the Fifth Circuit Court of Appeals in large measure to determine which standard applies.
After oral arguments, I predicted that “the Court will likely find age-verification laws aimed at preventing minors from accessing online pornography are subject to strict scrutiny, and remand for the lower courts to determine whether the record shows the law is narrowly tailored in light of modern age-verification technology…” and I urged that “the Supreme Court should make clear that this is limited to speech that is obscene for minors, and not imperil the ability of minors to use the internet more generally.”
Turns out, my prediction was wrong, but my hopes weren’t completely dashed.
The Court did vacate the Fifth Circuit on the grounds that the age verification law should be subject to intermediate scrutiny rather than rational basis review. But the Court did not subject the law to strict scrutiny or remand for further proceedings. They not only found intermediate scrutiny applied, but that “H.B. 1181 readily satisfies these requirements.”
Under intermediate scrutiny, a court need not engage in the narrow tailoring analysis of strict scrutiny. So after finding there was an important government interest in protecting minors from obscenity, the Court found it was unnecessary to consider whether less restrictive means like content-filtering software are equally effective or the fact that the law was underinclusive because it doesn’t apply to search engines or social media websites.
However, in its discussion about why strict scrutiny should not apply, the Court made clear that intermediate scrutiny only applies because this is unprotected speech as to minors:
The dissent’s arguments for strict scrutiny are no more persuasive than petitioners’. The dissent claims that strict scrutiny applies because H.B. 1181 is “a quintessential content-based law.” Post, at 6 (opinion of KAGAN, J.). We agree that H.B. 1181 targets speech that is obscene for minors based on its communicative content. But, where the speech in question is unprotected, States may impose “restrictions” based on “content” without triggering strict scrutiny. Stevens, 559 U. S., at 468 (internal quotation marks omitted). Because speech that is obscene to minors is unprotected to the extent that the State imposes only an age-verification requirement, H.B. 1181’s content-based restriction does not require strict scrutiny. The law is content based in the same way that prohibitions of “defamation,” “fraud,” and “incitement” are. Ibid.
In other words, it is the fact that online pornography is unprotected as to minors that makes H.B. 1181 subject to intermediate scrutiny. This would not be the case for age verification laws that impact protected speech as to minors, as the vast majority is on social media platforms and the Internet more generally.
The majority opinion also argued that:
The dissent’s real point of disagreement is whether an age-verification requirement regulates the protected speech of adults. On this point, the dissent has nothing to offer aside from the bald assertion that our precedents have held as much. See post, at 5–10. But, our precedents have held no such thing. Because our previous decisions concerned only outright bans, see supra, at 22–25, this Court has never before considered whether lesser burdens aimed at distinguishing children from adults directly regulate any free speech right of adults.
Now, it is debatable whether the majority is right in its reading of prior precedents, especially Ashcroft v. ACLU, where the Court subjected an age verification law to strict scrutiny because of its effect on adult’s access to speech. But regardless of whether the dissent or majority is correct on that point, the Court’s opinion is not necessarily a win for advocates of age verification and parental consent more broadly on the Internet.
What This Means for Age-Verification and Parental-Consent Laws for Protected Online Content
Every federal district court that has reviewed state laws requiring age verification and parental consent for minors to create social media profiles has found that these measures likely violate the First Amendment based upon Supreme Court precedent. As argued above, Free Speech Coalition v. Paxton does nothing to change this. In fact, it likely strengthens the argument that app store level age verification and parental consent would also be subject to strict scrutiny unless it is only targeted at pornographic apps.
Advocates have argued that such app store-level age verification and parental consent requirements should be subject to intermediate scrutiny because it is content-neutral, but requiring age verification and parental consent to access any apps would assuredly impact protected speech as to minors. In the words of the majority in Free Speech Coalition, it would be an “outright ban” to restrict access to all content without age verification. A law that only requires such age verification for apps that serve unprotected content as to minors like obscenity may be subject to intermediate scrutiny, but a broader law would likely be subject to strict scrutiny.
Moreover, it is clear that social media apps primarily serve minors with protected speech as well as giving them opportunities to speak themselves. A law requiring age verification and parental consent to make a social media profile would almost assuredly be subject to strict scrutiny.
Under strict scrutiny, the least restrictive means analysis of Ashcroft would apply. It seems unlikely that these laws would survive such an analysis because there are many practical and technological means available for parents and teens to work together to avoid unwanted speech.
Conclusion
As I’ve argued extensively, parents and teens working together are the least-cost avoiders of negative externalities of Internet use. Laws requiring age verification and parental consent to access protected speech will likely fail strict scrutiny because of this fundamental fact. Nothing about Free Speech Coalition v. Paxton changes this analysis. If anything, the majority opinion actually makes clear that intermediate scrutiny for age verification laws are limited to situations where the content is unprotected for minors.
