In Texas Age Verification Case, EPIC Urges Supreme Court to Adopt Framework that Can Differentiate Unconstitutional Online Censorship Laws from Constitutional Kids’ Privacy and Safety Laws

Today, EPIC submitted an amicus brief in Free Speech Coalition v. Paxton, an important Supreme Court case that could impact the viability of many recently enacted and proposed kids’ safety and privacy laws. EPIC believes that, while the Fifth Circuit decision in this case was too deferential to Texas and could lead to more online censorship if applied widely, an overly broad ruling in favor of Free Speech Coalition could enable tech companies to overturn important kids’ privacy and safety laws that do not burden anyone’s access to online content. EPIC urged the Court to use an analytical framework that can distinguish between unconstitutional censorship laws and constitutional privacy and safety laws.

In this case, Free Speech Coalition—a group of pornography websites—is suing Ken Paxton, Texas’s attorney general, to stop enforcement of Texas’s H.B. 1181, a law that requires pornography websites to block kids’ access to pornographic content by requiring users to verify their ages before accessing the content. Free Speech Coalition claims that this law violates the First Amendment because adults have a constitutional right to view pornography, and any age verification system would chill their willingness to exercise this right due to privacy concerns. The district court granted Free Speech Coalition’s motion for a preliminary injunction, but the Fifth Circuit reversed.

EPIC believes that Free Speech Coalition is likely correct about the chilling effects of H.B. 1181, but that the Court’s opinion should recognize that both lower courts overapplied Supreme Court precedent in opposite directions and that both courts’ analyses of the chilling effects of age verification on adults’ access to content were cursory. To support this argument, EPIC explained why the Court’s past precedent involving online and offline age assurance don’t control the outcome in this case. EPIC also set out a framework for analyzing claims that age assurance systems chill adults’ access to content and argued that the lower courts should have made more extensive findings about the law’s age assurance mechanism and its impact on users. EPIC also explained that H.B. 1181 is different from many other kids’ privacy and safety laws that may also involve age assurance. EPIC urged that, instead of issuing a broad, blanket ruling about the constitutionality of age assurance, the Court should issue a fact- and statute-specific analysis that explains precisely why H.B. 1181 is unconstitutional. EPIC regularly submits amicus briefs in cases involving the intersection of privacy, kids’ safety, and First Amendment rights.