Court To Indiana: Age Verification Laws Don’t Override The First Amendment

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from the strict-scrutiny dept

We keep pointing out that, contrary to the uninformed opinion of lawmakers across both major parties, laws that require age verification are clearly unconstitutional*.
Such laws have been tossed out everywhere as unconstitutional, except in Texas (and even then, the district court got it right, and only the 5th Circuit is confused). And yet, we hear about another state passing an age verification law basically every week. And this isn’t a partisan/culture war thing, either. Red states, blue states, purple states: doesn’t matter. All seem to be exploring unconstitutional age verification laws.
Indiana came up with one last year, which targeted adult content sites specifically. And, yes, there are perfectly good arguments that kids should not have access to pornographic content. However, the Constitution does not allow for any such restriction to be done in a sloppy manner that is both ineffective at stopping kids and likely to block protected speech. And yet, that’s what every age-gating law does. The key point is that there are other ways to restrict kids’ access to porn, rather than age-gating everything. But they often involve this thing called parenting.
Thus, it’s little surprise that, following a legal challenge by the Free Speech Coalition, Indiana’s law has been put on hold by a court that recognizes the law is very likely unconstitutional.
The court starts out by highlighting that geolocating is an extraordinarily inexact science, which is a problem, given that the law requires adult content sites to determine when visitors are from Indiana and to age verify them.
Also, users can hide their real IP address in various ways:
The reference to “Chinese censors” is a bit weird, but okay, point made: if people don’t want to appear as if they’re from Indiana, they can do so.
The court also realizes that just blocking adult content websites won’t block access to other sources of porn. The ruling probably violates a bunch of proposed laws against content that is “harmful to minors” by telling kids how to find porn:
And thus, problem number one with age verification: it’s not going to be even remotely effective for achieving the policy goals being sought here.
And that matters. Again, even if you agree with the policy goals, you should recognize that putting in place an ineffective regulatory regime that is easily bypassed is not at all helpful, especially given that it might also restrict speech for non-minors.
Unlike the 5th Circuit, this district court in Indiana understands the precedents related to this issue and knows that Ashcroft v. ACLU already dealt with the main issue at play in this case:
Indiana’s Attorney General points to the 5th Circuit ruling that tries to ignore Ashcroft, but the judge here is too smart for that. He knows he’s bound by the Supreme Court, not whatever version of Calvinball the 5th Circuit is playing:
And thus, strict scrutiny must apply, unlike in the 5th Circuit, and this law can’t pass that bar.
Among other things, the age verification in this law doesn’t just apply to material that is obscene to minors:
Also, even if the government has a compelling interest in protecting kids from adult content, this law doesn’t actually do a good job of that:
The court makes it clear how feeble this law is:
The court also points out how silly it is that the law only applies to sites with a high enough threshold (33%) of adult content. If the goal is to block kids’ access to porn, that’s a stupid way to go about it. Indeed, the court effectively notes that a website could get around the ban just by adding a bunch of non-adult imagery content.
In a footnote, the judge highlights an even dumber part of the law: that the 33% is based on the percentage of imagery, and gives a hypothetical of a site that would be required to age gate:
The court suggests some alternatives to this law, from requiring age verification for accessing any adult content (though, it notes that’s also probably unconstitutional, even if it’s less restrictive) to having the state offer up free filtering and blocking tech for parents to make use of for their kids:
And thus, due to the fact that the law is pretty obviously unconstitutional, the judge grants the injunction, blocking the law from going into effect. Indiana will almost certainly appeal and we’ll have to just keep going through this nonsense over and over again.
Thankfully, Indiana is in the 7th Circuit, not the 5th, so there’s at least somewhat less of a chance for pure nuttery on appeal.
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from the at-last-this-time-the-calvinball-protects-the-constitution dept

I was worried after oral argument in the NetChoice cases that we were going to get a mess of a decision. Maybe it would give us the right result (the Florida and Texas laws remaining canceled), but with dicta that pulled its punches and gave future would-be censors some cover for their continued attacks on First Amendment rights. Instead we basically got the opposite, a somewhat meh result (it will take more litigation to do away with Florida and Texas’s laws, which therefore might partially survive), but with excellent, solid dicta—assuming, of course, that it even was dicta, as discussed further below.
Before continuing, first an explanation of what dicta is. Basically, it’s language in a decision that does not bear on the holding. When a court considers a legal question, it will ultimately hold Conclusion X for Reason Y. Dicta is language that isn’t part of the conclusion, or part of the rationale for the conclusion. It gets included in the decision because it gives context that helps the conclusion and rationale make more sense, but if the same conclusion could be reached without that language being included in the decision then it generally is considered dicta, and not part of the precedential holding. In other words, the holding is a declaration of what the law now is, and the dicta technically is not part of that law.
In his concurrence, Justice Alito, joined by Justices Thomas and Gorsuch, complain that the language from the decision that will be most helpful to future First Amendment challenges—namely, everything that did not lament that the plaintiffs had not brought a facial challenge—is just dicta, and thus not actually binding precedent.
Thomas also said the same in his own concurrence. It’s possible that they are right, and normally that sort of thing should matter. The courts are not supposed to give advisory opinions, and the roadmap Justice Kagan laid out in her majority opinion could be construed as an advisory opinion that basically gives future litigants a sneak peek as to what the Court would likely hold by the time a correctly-litigated case reached them.
But while normally that sort of thing should matter, I am not sure that it should matter here:
(A) This group of judicial nihilists has basically made sure that nothing matters. Oh, now they want to be formalists and follow standard rules of jurisprudence? They didn’t even manage to stick with them this term, or even this month (oh, sorry, I mean last month, when they couldn’t even manage to publish all their remaining opinions, even when extremely time-sensitive and supposedly “expedited”).
(B) It’s not like it’s the first time that dicta has ended up functioning as precedent, partly because it’s so hard to tell what is or isn’t dicta. Alito et al. could be right here, because the overall result – sending the cases back down to the lower courts to figure out if the facial challenge was brought correctly – would be the result even without all those extra sections in the opinion addressing the substantive First Amendment questions.
On the other hand, none of this First Amendment language may actually be extraneous, even if the holding is that the facial challenge was not correctly analyzed below, because the error the Court is concerned with still had to do with how the lower courts had applied the First Amendment. So even if, for example, the Eleventh Circuit had applied it too broadly, negating more of the Florida statute than it should have, any negation can only happen when the First Amendment would demand it, so maybe it is necessary and proper for the Court to affirm here that there is no question that the First Amendment would apply, and thus the only thing at issue on remand is for the lower courts to consider how much it applies, and not whether it does.
(C) This strong First Amendment language may still actually be the holding. Especially because “whether the First Amendment applies” was what we expected the Court to rule on when it granted its review. It granted it “limited to Questions 1 and 2 presented by the Solicitor General in her brief for the United States as amicus curiae,” which were
Which is why there was a lot of surprise that so much attention was paid in oral argument to concerns about the facial challenge. And surprise is bad, because if the parties knew this issue was what the Court was worried about it could have briefed in a way that directly addressed the issue. Instead the parties briefed the questions the Court said it wanted to consider, and all this “dicta” answered those questions, so surely that answer was actually the Court’s essential holding, and the remand order really only an ancillary exercise of procedural power that the Court is often exercising every time it issues a ruling with an instruction for what should happen in the lower courts next.
(D) One of the concerns about dicta is that it can often be convoluting, rather than clarifying, and obscure what the court is actually trying to effect. Here, however, the true officiousness of this decision is that the Court even weighed in on the facial challenge issue at all. While the majority opinion complains about the sparse record on that point, these are crocodile tears because the case was not brought to it with that question in mind. Of course there was no record; it was not the issue that had been litigated below that now necessitated the Court’s review. To then suddenly and unilaterally choose to consider an un-litigated issue is the height of hubris and if anything itself functions as the actual dicta obscuring its much more important point, and the point it was called upon to make and promised to make when the Court had granted the review.
(E) Furthermore, even if Alito and company were right and all this great language expressed by Kagan really only functions as what is basically a Justice Kagan-penned amicus brief, applicable to any future case implicating the First Amendment rights of platforms, while it might not be precedent it is certainly at least persuasive authority that will influence future courts. It will not be easy to defend a censoring law seeking to constrain a platform’s First Amendment rights by arguing that Kagan’s robust First Amendment-defending language is not binding precedent, because even if courts are not forced to make decisions consistent with it, defenders of these laws will be hard pressed to argue that these courts should not do so, in the wake of Kagan’s clearly expressed observations that platforms have these rights and why they must have these rights.
The irony is that an example of very famous dicta we’re still contending with is dicta that also arose in the First Amendment context. I speak of the the “fire in a crowded theater” trope. Consider the staying power of that language, which is not only a misstatement of law (whereas Kagan’s language is not) but also dicta from a decision that has since been entirely overturned! While much discourse about First Amendment jurisprudence continues to be polluted by that century-old throw-away line, with this new decision we now at least have some much more speech-protective language to inform these discussions and this time actually help insulate First Amendment rights from further onslaught.
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from the ctrl-alt-speech dept

Ctrl-Alt-Speech is a weekly podcast about the latest news in online speech, from Mike Masnick and Everything in Moderation‘s Ben Whitelaw.
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Although our hosts are both on vacation this week, we didn’t want to leave our listeners waiting too long for an update on today’s big news about online speech: the Supreme Court’s ruling in the NetChoice cases, which sends the Texas and Florida laws that would limit the ability of online platforms to moderate political speech back to the lower courts. So Mike Masnick has stepped briefly back to the microphone to join our producer, Leigh Beadon, for a quick mini episode of Ctrl-Alt-Speech, which we’re also posting to the Techdirt podcast feed. In this short discussion, Mike explains the immediate implications of the ruling, the way it separates procedural questions from its broader guidance on the First Amendment, and what it signals about how the court will evaluate issues like this in the future.
Read more about the NetChoice ruling in our coverage on Techdirt:
This episode is brought to you with financial support from the Future of Online Trust & Safety Fund.