Internet Law Professors Submit a SCOTUS Amicus Brief on Online Age Authentication–Free Speech Coalition v. Paxton

September 24, 2024 · by · in Content Regulation, E-Commerce, Internet History

Along with seven other Internet Law professors, I filed an amicus brief with the US Supreme Court in the case of Free Speech Coalition v. Paxton. The lawsuit challenges Texas HB 1181, which is basically a resurrection of the old Communications Decency Act with minor modifications. HB 1181 explicitly includes a requirement that some Internet services must age-authenticate all of their users.

You may recall that the Fifth Circuit, doing typical Fifth Circuit things, subjected mandatory age authentication to rational basis review based on the 56 year old Ginsberg precedent, rather than applying the intervening/more recent decisions of ACLU v. Reno and Ashcroft v. ACLU that both struck down online age authentication mandates. Ginsberg involved a requirement for offline retailers to age-authenticate porn buyers.

Our amicus brief explains some important differences between the offline age authentication at issue in Ginsberg and online age authentication required by HB 1181. In that respect, it’s a typical Internet Law exceptionalism analysis, showing why offline principles shouldn’t necessarily apply online when online age authentication has significant and disadvantageous differences. The brief is mostly a remix of parts of my forthcoming Segregate-and-Suppress article. I can’t wait to share that article with you soon. This brief will give you a taste of what’s coming.

I’m grateful to Amber Greenaway and the Bondurant Mixson & Elmore firm for their pro bono support of this project. 🙏 I’m also grateful to my co-signers Zachary Catanzaro (St. Thomas University), Robert A. Heverly (Albany Law School), Jane Kirtley (University of Minnesota – Twin Cities – Hubbard School of Journalism and Mass Communication), Mark Lemley (Stanford Law School), David S. Levine (Elon University School of Law),  Yvette Joy Liebesman (Saint Louis University – School of Law), and Jess Miers (University of Akron VAP).

The abstract:

This amicus brief was filed by eight Internet Law professors in the Supreme Court appeal of Free Speech Coalition v. Paxton. The amicus brief explains how online age authentication, as required by Texas H.B. 1181, is more problematic than the offline age authentication procedures approved by the Supreme Court in its 1968 Ginsberg precedent. The brief highlights how online age authentication (1) creates barriers that thwart readers’ access to constitutionally protected material, (2) increases publishers’ costs and reduces their revenues, which collectively penalize constitutionally protected speech, and (3) creates serious privacy and security risks for adults and minors alike.