Despite Supreme Court Setback, EFF Fights On Against Online Age Mandates

The Supreme Court’s recent decision in Free Speech Coalition v. Paxton did not end the legal debate over age-verification mandates for websites. Instead, it’s a limited decision: the court’s legal reasoning only applies to age restrictions on sexual materials that minors do not have a legal right to access. Although the ruling reverses decades of First Amendment protections for adults to access lawful speech online, the decision does not allow states or the federal government to impose broader age-verification mandates on social media, general audience websites, or app stores.

At EFF, we continue to fight age-verification mandates in the many other contexts in which we see them throughout the country and the world. These “age gates” remain a threat to the free speech and privacy rights of both adults and minors.

Importantly, the Supreme Court’s decision does not approve of age gates when they are imposed on speech that is legal for minors and adults.

The court’s legal reasoning in Free Speech Coalition v. Paxton depends in all relevant parts on the Texas law only blocking minors’ access to speech to which they had no First Amendment right to access in the first place—what has been known since 1968 as “harmful to minors” sexual material. Although laws that limit access to certain subject matters are typically required to survive “strict scrutiny,” the Texas law was subject instead to the less demanding “intermediate scrutiny” only because the law was denying minors access to this speech that was unprotected for them. The Court acknowledged that having to prove age would create an obstacle for adults to access speech that is protected for them. But this obstacle was merely “incidental” to the lawful restriction on minors’ access. And “incidental” restrictions on protected speech need only survive intermediate scrutiny.

To be clear, we do not agree with this result, and vigorously fought against it. The Court wrongly downplayed the very real and significant burdens that age verification places on adults. And we disagree with numerous other doctrinal aspects of the Court’s decision. The court had previously recognized that age-verification schemes significantly burden adult’s First Amendment rights and had protected adults’ constitutional rights. So Paxton is a significant loss of internet users’ free speech rights and a marked retreat from the court’s protections for online speech.

The decision does not allow states or the federal government to impose broader age-verification mandates

But the decision is limited to the specific context in which the law seeks to restrict access to sexual materials. The Texas law avoided strict scrutiny only because it directly targeted speech that is unprotected as to minors. You can see this throughout the opinion:

• The foundation of the Court’s decision was the history, tradition, and precedent that allows states to “prevent children from accessing speech that is obscene to children, rather than a more generalized concern for child welfare.
• The Court’s entire ruling rested on its finding that “no person – adult or child –has a First Amendment right to access speech that is obscene to minors without first submitting proof of age.”
• The Court explained that “because the First Amendment permits States to prohibit minors from accessing speech that is obscene to them, it likewise permits States to employ the ordinary and appropriate means of enforcing such a prohibition.” The permissibility of the age verification requirement was thus dependent on the unprotected nature of the speech.
• The only reason the law could be justified without reference to protected speech, a requirement for a content-neutral law subject to only intermediate scrutiny, is that it did not “regulate the content of protected speech” either “‘on its face’ or in its justification.” As the Court explained, “where the speech in question is unprotected, States may impose “restrictions” based on “content” without triggering strict scrutiny.”
• Intermediate scrutiny was applied only because “[a]ny burden experienced by adults is therefore only incidental to the statute’s regulation of activity that is not protected by the First Amendment.”
• But strict scrutiny remains “the standard for reviewing the direct targeting of fully protected speech.”

There is only sentence in Free Speech Coalition v. Paxton addressing the restriction of First Amendment rights that is not cabined by the language of unprotected harmful to minors speech. The Court wrote: “And, the statute does not ban adults from accessing this material; it simply requires them to verify their age before accessing it on a covered website.” But that sentence was entirely surrounded by and necessarily referred to the limited situation of a law burdening only access to harmful to minors sexual speech.

We and the others fighting online age restrictions still have our work cut out for us. The momentum to widely adopt and normalize online age restrictions is strong. But Free Speech Coalition v. Paxton did not approve of age gates when they are imposed on speech that adults and minors have a legal right to access. And EFF will continue to fight for all internet users’ rights to speak and receive information online.