Judge To Texas: You Can’t Age-Gate The Entire Internet Without Evidence
from the first-amendment-wins-for-now dept
Over the summer, the Supreme Court’s conservative majority upended decades of traditional First Amendment standards to say that Texas could put in place an age verification law if that law was intended to keep kids away from porn. As we argued at the time, the ruling had all sorts of problems, but even leaving those aside, it was still pretty clearly limited solely to situations involving age gating adult content. Not news sites. Not fitness apps. Not therapy platforms. Porn.
Texas, predictably, heard “you can age gate porn” and decided that meant “you can age gate everything.” Because why respect constitutional distinctions when you can just pretend they don’t exist?
And Texas isn’t alone in this—states across the country have been rushing to pass sweeping age verification laws for social media and other content, because ignoring the First Amendment rights of children remains a proud bipartisan tradition.
In Texas’s case, the legislature passed Senate Bill 2420, entitled the “App Store Accountability Act,” which would require age verification, parental controls, and warning labels on various app stores and apps.
A couple of lawsuits were filed to challenge the law—one from CCIA, the trade group representing a bunch of internet companies, and another from a bunch of students who pointed out that the law violated their rights. Last week, judge Robert Pitman ruled in both cases, putting the law on hold and noting that the law pretty clearly violated the First Amendment, because the law is extremely overbroad and not at all narrowly targeted:
Because strict scrutiny applies, Paxton must prove that SB 2420 is “the least restrictive means of achieving a compelling state interest.” Free Speech Coalition, 606 U.S. at 484. Paxton has not proven this. First, it is far from clear that Texas has a compelling interest in preventing minors’ access to every single category of speech restricted by SB 2420. State interests in protecting minors exist; for example, a state has a compelling interest in preventing minors from accessing information that facilitates child pornography or sexual abuse. See Sable Commc’ns of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989) (“[T]here is a compelling interest in protecting the physical and psychological well-being of minors.”). On the other hand, nothing suggests Texas’s interest in preventing minors from accessing a wide variety of apps that foster protected speech (such as the Associated Press, the Wall Street Journal, Substack, or Sports Illustrated) is compelling. See Brown, 564 U.S. at 794 (“No doubt a State possesses legitimate power to protect children from harm, but that does not include a free-floating power to restrict the ideas to which children may be exposed.”) (internal citation omitted). While SB 2420 may have some compelling applications, the categories of speech it restricts are so exceedingly overbroad that Paxton likely cannot show a compelling state interest.
Texas tried arguing that age gating apps is no different than age restrictions on tobacco and alcohol. The court wasn’t having it—not least because Texas showed up with zero evidence that downloading apps poses health hazards comparable to cigarettes or booze. You can’t just assert “apps are like tobacco” and expect a federal judge to nod along.
Analogizing to tobacco or alcohol use, Paxton argues that Texas has an interest in regulating products and services “which pose health hazards, or which may be addictive” to minors. (Resp., Dkt. 17, at 13.) However, the State does not cite evidence to substantiate the assertion that downloading an app of any kind without parental permission poses a health hazard to minors. That argument gestures toward Texas’s interest in preventing social media addiction, but SB 2420’s coverage sweeps far wider—all apps are restricted, beyond social media, as described above. So too, SB 2420 does not limit its scope to apps that use addictive algorithms designed to encourage prolonged use, or apps that are responsible in particular for causing excessive screen time. As one example, SB 2420 restricts access to apps that seek to promote physical or mental health, such as mindfulness apps like Calm, fitness apps like Strava, or therapy providers like BetterHelp.
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