Prof. Goldman’s Statement on the Supreme Court’s Demolition of the Internet in Free Speech Coalition v. Paxton
[Note: Greetings from Shanghai, where it’s almost 1 am and the Supreme Court has just demolished the Internet. I’m posting these remarks and then heading to bed, where I will curl up in a fetal position as I question everything I know about Internet Law–and lament how the next generations of Americans will experience e a much different, and much worse, Internet than I have enjoyed the past 30 years. Reporters: feel free to quote from this statement; and if you have further questions that aren’t urgent, I’m happy to answer them. I’ll be back in the US Sunday. At some point, if my emotional health permits it, I will do a fuller blog post on this opinion.]
The Supreme Court majority mishandled multiple key issues, including:
- It falsely equated age authentication of offline items like liquor sales, which raise no real speech issues, with restrictions on online speech.
- It misapprehended the consequences of online age authentication, which are often far more detrimental to publishers and readers than offline age authentication.
- It tendentiously tried to distinguish content “bans” from content “burdens,” though (as I explain here) the net effects can be the same.
The publishers have an obvious countermove to comply with Texas HB 1181: they can flood the Internet with AI-produced content that will dilute the percentage of pornography in their database so that it drops below the regulatory threshold. To state the obvious, a legal motivation to proliferate meaningless content online is hardly good news for the Internet.
Online publishers will have fewer effective countermoves against the tsunami of other online age authentication mandates that have been or will be enacted across the country. After this opinion, online publishers can still fight any laws that don’t target pornography, but this opinion will likely make those challenges harder to succeed (and will certainly multiply legislative adoptions). Either way, because the majority essentially created a new constitutional fast lane for regulating online pornography, legislatures have the majority’s permission to disrupt the relationship between online publishers of all types and readers not looking for pornography–the legislature simply has to couch its desired censorship as a condition to keep kids from online porn.
As a result, the Internet, and our country, lost big today. The Internet will become yet another casualty in our modern federal and state governments’ ongoing efforts to damage or eviscerate the institutions Americans cherish.
Regardless of the constitutional analysis, online age authentication mandates remain terrible policy for reasons I explain here. In particular, the mandates inevitably hurt children based on the claim to benefit children–a mind-bending condundrum that should make everyone question the true motivations of any proponents of online age authentication.
[Note for Internet Law geeks: John Perry Barlow wrote his Declaration of the Independence in Cyberspace in response to Congress’ passage of the Communications Decency Act, a direct predecessor of the Texas law at issue in this case. Soon after Barlow’s screed, the Supreme Court struck down the CDA–and partially ameliorated Barlow’s fears–in Reno v. ACLU, one of the opinions essentially overturned today. I wonder how Barlow would view this opinion, which seems to actualize the fears he expressed in 1996].