[Note: tomorrow we’ll get the Supreme Court decisions in NetChoice v. Florida and Texas. I’ll be blogging those decisions as fast as I can, so check back here to see if the Internet survived its latest visit to the Supreme Court. Today, I cover a strong district court ruling striking down a state censorship law. Depending on how the NetChoice decisions go, this could be the last good pro-Internet ruling we see for the foreseeable future.]
A number of states, including Indiana, have recently passed laws requiring websites consisting of 1/3 or more pornography to age-authenticate users and block minors from accessing “harmful to minors” material. These laws brazenly conflict with the CDA/COPA Supreme Court rulings from over 2 decades ago, and I think the legislatures are primarily testing to see if the Supreme Court will rethink their venerable precedent.
Until then, with the exception of a characteristically awful Fifth Circuit opinion (precedent means nothing in the Fifth Circuit), courts are uniformly striking down these laws based on the binding Supreme Court precedent. This opinion, striking down Indiana’s law, does a great job applying the CDA/COPA precedent while distinguishing and eviscerating the Fifth Circuit’s outlier opinion.
As this court concludes its First Amendment analysis:
this case is not close; it appears to be a dead ringer for Ashcroft II, and the Plaintiffs are likely to succeed on the merits as a result.
💥💥💥💥
* * *
Does the Fifth Circuit’s Precedent Apply Here?
The court’s overview lays out the obvious conflict with Supreme Court precedent:
Indiana’s age verification requirements are likely unconstitutional…In the case most like the one here, the Supreme Court affirmed the preliminary enjoinment of the Child Online Protection Act…because the regulations were not particularly effective as it was easy for minors to get around the requirements and failed to consider less restrictive alternatives that would have been equally effective such as filtering and blocking software. All of that is equally true here, which is sufficient to resolve this case against the Attorney General.
To overcome this, the state AG invoked the Fifth Circuit opinion in Free Speech Coalition v. Paxton. The court skillfully distinguishes it:
despite no intervening change in Supreme Court precedent, the Fifth Circuit found that the aforementioned Supreme Court precedents were not binding upon it because those opinions “contain[ed] startling omissions.” Instead of applying strict scrutiny as directed by the Supreme Court, the Fifth Circuit applied rational basis scrutiny under Ginsberg v. New York, 390 U.S. 629 (1968), even though the Supreme Court explained how Ginsberg was inapplicable to these types of cases in Reno….this court is bound by Ashcroft II
These cases are really that easy–if you apply the governing Supreme Court precedent.
The state AG argued that the law requires age authentication using driver’s licenses or third-party authentication software, not credit cards as permitted in COPA. The court says this difference is immaterial: “this is not sufficient to take the Act beyond the strictures of strict scrutiny, nor enough to materially advance Indiana’s compelling interest, nor adequate to tailor the Act to the least restrictive means.” In a footnote, the court adds that COPA allowed authentication using methods other than credit cards, including driver’s licenses, so maybe there isn’t a factual difference at all. In a later footnote, the court also adds: “credit card verification is not effective at ensuring a user is over the age of 18.”
Speech Burdens
The age verification requirements do not just apply to obscene content and also burden a significant amount of protected speech for two reasons. First, Indiana’s statute slips from the constitutional definition of obscenity and covers more material than considered by the Miller test….
Second, the one-third requirement triggers age verification requirements regardless of the content the viewer seeks to access. In other words, age verification burdens must be imposed on adults attempting to access material perfectly appropriate for minors because other parts of the website may have material inappropriate for a minor. Indeed, the Act imposes burdens on adults accessing constitutionally protected speech even when the majority of a website contains entirely acceptable, and constitutionally protected, material.
The latter point is one of the many reasons I believe no mandatory age authentication requirement can be constitutional. It erects barriers to constitutionally protected material that all users, adults and minors alike, must navigate.
The court then revisits why the Fifth Circuit was wrong to apply rational basis scrutiny by relying on the 1960s-era Ginsberg case:
- Ginsberg “considered ‘a prohibition on the sale to minors of sexual material,’ rather than burdens on the communication of non-obscene materials from adults to other adults.”
- “the New York statute in Ginsberg only applied to commercial transactions.” The state AG tried to argue that Indiana’s law did as well, but the court responds: “the majority of the obscene content is free; the constitutionally protected content doubly so. That a website makes money from advertising separate from its speech does not transform every piece of speech on the website to commercial speech, elsewise free news articles with advertisements would be subject to less First Amendment protection.”
- “unlike the statute in Ginsberg, the age verification requirements do not permit parents to allow their children to view the material if they so desire”
- “The Attorney General’s citation to the Fifth Circuit’s analysis is equally unhelpful because that court did not attempt to grapple with these distinctions as the Supreme Court did.” In other words, it was garbage.
The Fifth Circuit’s application of Ginsberg instead of the directly-on-point CDA and COPA cases was the worst kind of judicial activism. It was antithetical to the rule of law and deserves our strongest condemnation.
The court then explains how the Indiana statute overreaches by imposing age authentication before accessing websites generally, rather than specific items:
The Attorney General’s argument that the Plaintiff websites are inherently obscene is likewise unpersuasive….The website is a publisher, akin to the defendant in Ginzburg, not an obscene material like a magazine. The videos on the website are equivalent to the obscene magazine in Ginzburg…The website itself cannot be obscene any more than defendant Ginzburg himself was obscene….
these websites contain a substantial amount of non-obscene material. While some of this may be indecent speech such as fully clothed but titillating modeling, other speech is more firmly rooted in the First Amendment such as podcasts and satirical videos. (See Seifert Decl. ¶ 6 (explaining the website Xnxx.com contains “substantial amounts” of “clothed” and “partially clothed modeling galleries” among “nude” modeling and other “‘soft core’ adult content”); Muhamed Decl. ¶ 5 (explaining Paper Street Media, LLC’s websites contain “images galleries featuring models . . . fully clothed” and “in the nude”); see also Andreou Decl. ¶ 12 (explaining Pornhub contains “a significant amount of” videos and images that is constitutionally protected speech such as “podcasts by creators in the community discussing their work and issues faced by the [adult-entertainment] community” and “comedic, non-pornographic content playing on industry tropes”)). Some speech even rises to the most storied and sturdy speech in our First Amendment firmament worthy of its highest protections: political speech. (See Filing No. 30-6 at 5-6 (discussing Pornhub’s blog advocating for changing age verification laws)). Sweeping that speech up with unprotected obscenity is the exact overbreadth that plagues the Act throughout this analysis. Ultimately, the Act places burdens on and chills an adult’s ability to engage with, view, transmit, and receive a significant amount of constitutionally protected speech; rational basis is inappropriate.
[Note: Ginzburg and Ginsberg are two different Supreme Court cases involving pornography from the 1960s. Ginzburg is largely forgotten today because it was an old-school commercial speech case before the Burger court set the modern rules.]
Level of Scrutiny
The Act is a content-based regulation. It imposes age verification requirements “if at least one-third . . . of the images and videos published on the website depict material harmful to minors,” which is a direct reference to the content of the speech to be burdened. Moreover, Indiana justifies the law through reference to the speech’s impact on the listener or viewer….The standard must be strict scrutiny.
To get around this obvious analysis and the Supreme Court precedent, the state AG argued that Indiana’s law acts like an Internet zoning regulation. The court responds simply: “This argument does not differ from one the Supreme Court has already twice rejected.” 🤷♂️ The court destroys the AG’s analogy to offline stripclubs:
The Attorney General also uses banning strip clubs as an example, but this is not a good comparator. Nude dancing only falls “within the outer ambit of the First Amendment’s protection,” and the government is allowed to regulate with a freer hand than when it regulates core speech. This law presents a different issue because it imposes identification requirements even if the only speech exchanged between user and website is that of the highest First Amendment order. Were a private building that ordinarily functions as a strip club acting as the site of a political rally for a night, the court doubts the State could require adults to provide identification to enter. The same is necessarily true when it comes to Pornhub’s blog advocating for legislative change.
Ouch. Sadly, this won’t be the last time that advocates embarrass themselves analogizing offline stripclubs to online content publishers.
Strict Scrutiny
Having reached strict scrutiny, the court says “Laws facing this most exacting level of scrutiny are presumptively invalid…This test ‘really means what it says’; few laws will survive.”
The state’s purported interest is “protecting minors from the harmful effects of pornography…protecting minors from viewing obscene material is a compelling interest.” The problem is the law is “wildly underinclusive when judged against that interest” because kids are savvy:
minors can easily circumvent the Act. Even without doing anything, a minor may appear to have connected to an adult-website from another state that does not impose age verification requirements because IP address geolocation is imprecise….Even beyond the inherent inaccuracy of geolocation, it is not difficult to use mechanisms like proxy servers, virtual private networks, virtual desktops, remote desktop access, or certain browsers like TOR to spoof that a user is interacting with the website from another state…
Another option for a minor seeking to circumvent the Act is to just go to a website like Reddit, which is roughly 24% sexually explicit material and thus not required to verify its user’s age. That website has entire subreddits dedicated to sexual material. (Id. ¶ 59 (describing the “gonewild” subreddit)). The Act does not even attempt to prevent minors from viewing or participating in these communities.
[Note: I believe this is the first reference to the “gonewild” subreddit in a court opinion indexed in the Lexis database.]
[Note: the court takes a small wrong turn when it says “Indiana does criminalize the dissemination of obscene materials to minors, but only if the disseminator does so “knowingly or intentionally” or “believ[ed] or intend[ed]” the recipient was under 18. Ind. Code § 35-49-3-3. This is problematic here because the age verification requirements are designed with a carve out where certain websites, such as Reddit or Facebook, can stick their head in the sand and send explicit materials to minors without ever reaching the requisite mens rea.” Section 230 would also preempt Indiana’s state crime trying to impose liability for third-party “obscene” content.]
Strict scrutiny leaves the court chiding the Indiana legislature for drawing the boundaries as it did:
To Indiana’s legislature, the materials harmful to minors are not so rugged that the State believes they should be unavailable to adults, nor so mentally debilitating to a child’s mind that they should be completely inaccessible to children. The Act does not function as a blanket ban of these materials, nor ban minors from accessing these materials, nor impose identification requirements on everybody displaying obscene content. Instead, it only circumscribes the conduct of websites who have a critical mass of adult material, whether they are currently displaying that content to a minor or not. Indeed, minors can freely access obscene material simply by searching that material in a search engine and turning off the blur feature. Indiana’s legislature is perfectly willing “to leave this dangerous, mind-altering material in the hands of children” so long as the children receive that content from Google, Bing, any newspaper, Facebook, Reddit, or the multitude of other websites not covered.
This “is not how one addresses a serious social problem.”…If Indiana were truly interested in protecting minors from seeing adult content, it would have imposed age verification requirements wherever those images are found, not by selectively determining which websites displaying adult content present the most danger
I have to clarify the court’s last point that an age authentication could be imposed if there is any violative item. Congress tried that with the CDA and COPA, and those laws were unconstitutional. So it’s technically accurate that the legislature could have recrafted the law, but the judge would be excoriating the legislature if it had. In other words, the legislature loses however it tries to impose age authentication, which is why the only way to win is not to play.
To get around this, the state AG argued that search engines can’t index third-party porn if it’s behind a registration/authentication wall. That’s not true, but it’s also beside the point:
The Attorney General takes pains to emphasize the images minors can freely see on a search engine are catalogued from adult oriented websites, but this is beside the point. The Act does not ban adult oriented websites, so they are still allowed to post content. Nor does it place any restrictions on a search engine’s ability to catalogue and show this content to minors. Regardless of whether a website like Pornhub needs to verify user’s identity, search engines do not and the Act, thus, leaves copious obscene materials in the hands of minors.
The court wraps up the underinclusiveness discussion with a bang: “not a single piece of evidence suggests age verification requirements succeed in prohibiting minors from viewing harmful materials.” 💥
(The court slightly clarifies this in a footnote: “To be clear, there is evidence suggesting websites with age verification will see a large decrease in viewership likely including some minors, but there is no evidence that those viewers (and minors) are not viewing the obscene material in other places. The Attorney General has not shown the law stops any minor from viewing harmful materials (its sole purpose) in other, uncovered places.”)
The court says that the statute independently fails strict scrutiny because of how it discriminates against speakers in the marketplace:
why is it that a website that contains 32% pornographic material is not as deleterious to a minor as a website that contains 33% pornographic material? And why does publishing news allow a website to display as many adult-images as it desires without needing to verify the user is an adult?
In a footnote, the court notes another quirk: the 33% fraction is determined by evaluating the publisher’s online images without regard to any text content. Thus, a blog with thousands of posts and a single image considered “harmful to minors” would need to impose age authentication for its entire blog.
As I explained above, legislatures cannot draft around this speaker-based discrimination. Legislatures cannot impose the age authentication on all Internet publishers (see the CDA), and any subset they choose will look silly when tested in court.
The court then reinforces that the statute isn’t the least restrictive means to accomplish the legislature’s goal of keeping porn from kids. As established 20 years ago in the COPA litigation, client-side filters are less restrictive than server-side regulatory controls. It doesn’t matter if filtering is imperfect (it is), it’s still more effective than the Indiana statute. Also, the legislature could try an Internet-wide age authentication obligation for individual porn items rather than websites generally, but as I said, this failed with the CDA and COPA so that’s a regulatory deadend.
As the court said, “this case is not close.” If I were an Indiana resident, I’d be angry that the legislature wasted its time passing this pile and even angrier about the state AG’s wasting taxpayer money trying to defend statutory provisions that have been obviously unconstitutional for decades. Nice job all around.
Case Citation: Free Speech Coalition, Inc. v. Rokita, 1:24-cv-00980-RLY-MG (S.D. Ind. June 28, 2024)
Related Posts on Age Authentication Mandates