In Scathing Rulings, Federal Courts Block Arkansas and Texas Age Verification Laws
Plus: Meta revises controversial "dangerous organizations" policy, a win against civil asset forfeiture in Detroit, and more...
One decision deals with porn, the other with social media platforms more broadly. Federal judges issued preliminary wins to free speech, sex workers, social media, and civil liberties and blows to censorship, nanny statism, and overreaching Arkansas and Texas authorities yesterday. Both rulings involve recently passed age verification laws—one barring minors from accessing a variety of social media platforms without parental permission and one requiring pornography websites to check IDs.
Both cases could have implications far beyond their respective states of origin, since proposals requiring parental consent before minors use social media and laws requiring porn platforms to check visitor IDs have become popular around the country.
In NetChoice v. Griffin, the U.S. District Court for the Western District of Arkansas has halted enforcement of an Arkansas age verification law that was slated to take effect today.
Meanwhile, the U.S. District Court for the Western District of Texas halted enforcement of a Texas law (H.B. 1181) requiring age verification and public health warnings on porn platforms. The Texas law was also slated to take effect today.
Social Media Is Not Like 'a Bar'
In the Arkansas case, the tech trade group NetChoice sued over Arkansas' Social Media Safety Act (one of many recent attempts by state and federal lawmakers to childproof the internet). The measure—Act 689—bans minors from using social media platforms (with a number of confusing exceptions) unless they prove they have parental consent.
On Thursday, Judge Timothy L. Brooks blocked the state from enforcing the law as NetChoice's legal challenge plays out.
"We're pleased the court sided with the First Amendment and stopped Arkansas' unconstitutional law from censoring free speech online and undermining the privacy of Arkansans, their families and their businesses as our case proceeds," said Chris Marchese, director of the NetChoice litigation center. "We look forward to seeing the law struck down permanently."
As with all such age verification laws, the Arkansas measure would invade the privacy of all social media users—including adults—who would be forced to turn over official IDs in order to speak or access information online. It would also infringe on the rights of minors to share and access constitutionally protected speech. Ultimately, Act 689 "puts the government in charge of how young people use the internet, rather than families and parents," warns NetChoice on its website. It also "risks the leaking of sensitive information, like photos of driving licenses, by forcing websites to collect and process this information."
In yesterday's order, Brooks deemed Act 689 "unconstitutionally vague because it fails to adequately define which entities are subject to its requirements." Brooks noted that during an evidentiary hearing, the state couldn't even say definitively whether Snapchat was subject to the law's requirements, saying at one point that it was and at another point that it was not. "Act 689 also fails to define what type of proof will be sufficient to demonstrate that a platform has obtained the 'express consent of a parent or legal guardian,'" noted the judge.
In an amusing/infuriating exchange in court (that was cited in Brooks' ruling), the state suggested that all of social media should be treated like "a bar" for purposes of excluding minors:
"This analogy is weak," wrote Brooks. "After all, minors have no constitutional right to consume alcohol, and the primary purpose of a bar is to serve alcohol. By contrast, the primary purpose of a social media platform is to engage in speech, and the State stipulated that social media platforms contain vast amounts of constitutionally protected speech for both adults and minors. Furthermore, Act 689 imposes much broader 'location restrictions' than a bar does."
The judge also noted that the ID requirements the Social Media Safety Act would impose could deter adult speech, since "it is likely that many adults who otherwise would be interested in becoming account holders on regulated social media platforms will be deterred—and their speech chilled—as a result of the age verification requirements, which…will likely require them to upload official government documents and submit to biometric scans."
Texas Law Would Let the Government 'Peer Into the Most Intimate and Personal Aspects of People's Lives'
A judge in Texas was similarly skeptical about the constitutionality of a Texas law related to age verification and adult content. The case was brought by the adult industry association the Free Speech Coalition (FSC).
In a Thursday order, Judge David A. Ezra blocked the state from enforcing the law as the FSC's case moves forward.
"We're pleased that the Court agreed with our view that HB 1181's true purpose is not to protect young people, but to prevent Texans from enjoying First Amendment protected expression," said FSC Executive Director Alison Boden. "The state's defense of the law was not based in science or technology, but ideology and politics."
Under H.B. 1181, platforms offering adult content would be forced to ID all visitors and to display warnings about the health dangers of viewing pornography. The law was set to take effect September 1.
"Even if the Court were to adopt narrow constructions of the statute, it would overburden protected speech of both sexual websites and their visitors," wrote Ezra in yesterday's order. "Courts have routinely struck down restrictions on sexual content as improperly tailored when they impermissibly restrict adult's access to sexual materials in the name of protecting minors."
Ezra called out Texas for not attempting less invasive means to shield young people from viewing porn and pointed out how thoroughly the law invades adult privacy.
If permitted to take effect, the law would allow "the government to peer into the most intimate and personal aspects of people's lives," wrote Ezra. "It runs the risk that the state can monitor when an adult views sexually explicit materials and what kinds of websites they visit."
Mike Stabile, the FSC's director of public affairs, called the order "a barnburner" in which the "court ruled with FSC on every major argument." Stabile also pointed out that Ezra is not a liberal judge but a Reagan appointee.
Or here, where he's like "Guys, did you even try parental filters before you came up with the censorship scheme?" pic.twitter.com/6A5cuyoZm1
— Mike Stabile (@mikestabile) August 31, 2023
Ezra's ruling may reverberate beyond Texas, notes Boden. It "rebuffs nearly every argument made by state legislatures," she said. "While Texas presented the most straightforward path to securing a ruling like this, the issues are the same whether in Utah, Louisiana or Virginia. Anyone who attempts to bring a case in those jurisdictions faces little hope of success."
"This is a template for fighting back [age verification] laws state-by-state," suggested Stabile. "The ruling may only enjoin Texas for now, but the constitutional issues it lays bare are almost exactly the same in those states. If an individual brings a suit in Utah, or a Attorney General in Louisiana, they're likely going to come up against these same basic facts."
Lawyer Gabriel Malor points out that the state in this case seems to be "teeing up an argument to reexamine precedent about how commercial speech can be regulated." State prosecutors argued that H.B. 1181 should be "subject to a lower standard of judicial scrutiny because it regulates only 'commercial entities, publication and distribution of material harmful to minors.'"
FREE MINDS
Meta has overhauled its controversial "dangerous organizations and individuals" policy. "The policy had come under fire in the past for casting an overly wide net that ended up removing legitimate, nonviolent content," notes Sam Biddle at The Intercept. "The goal of the change is to remove less of this material."
More from The Intercept:
Meta's "Dangerous Organizations and Individuals," or DOI, policy is based around a secret blacklist of thousands of people and groups, spanning everything from terrorists and drug cartels to rebel armies and musical acts. For years, the policy prohibited the more than one billion people using Facebook and Instagram from engaging in "praise, support or representation" of anyone on the list.
Now, Meta will provide a greater allowance for discussion of these banned people and groups — so long as it takes place in the context of "social and political discourse," according to the updated policy, which also replaces the blanket prohibition against "praise" of blacklisted entities with a new ban on "glorification" of them.
The updated policy language has been distributed internally, but Meta has yet to disclose it publicly beyond a mention of the "social and political discourse" exception on the community standards page. Blacklisted people and organizations are still banned from having an official presence on Meta's platforms.
FREE MARKETS
The Institute for Justice scores a win against civil asset forfeiture in Detroit:
????CIVIL FORFEITURE WIN????@IJ challenged Detroit's car forfeiture scheme, whereby it seizes innocent people's cars for 8-10 months *before a hearing* (to squeeze them for money).
Today in Ingram v. Wayne Cnty, the 6th Cir. holds that unconstitutional. 1/https://t.co/KiO2BX4dpw pic.twitter.com/ytfp5CElys
— Patrick Jaicomo (@pjaicomo) August 31, 2023
QUICK HITS
• As the trial of former Backpage executives got underway yesterday in a federal courthouse in Phoenix, prosecutor Austin Berry reportedly objected to a defendant's desire to show the jury the language of the First Amendment:
Notably prosecutor, Austin Berry of the DOJ's obscenity squad, objected to a slide in the PowerPoint for one defendant, showing the language of the First Amendment. As it says in the Bible, by their fruits, ye shall know them . 3/
— Stephen Lemons (@stephenlemons) August 31, 2023
• Georgia Gov. Brian Kemp rejected calls to interfere in former President Donald Trump's prosecution by Fulton County District Attorney Fani Willis. "Up to this point, I have not seen any evidence that DA Willis's actions or lack thereof warrant action by the prosecuting attorney oversight commission," Kemp said on Thursday. "In my mind, a special session of the General Assembly to end run around this law is not feasible and may ultimately prove to be unconstitutional."
• The Washington Post fact checks some of President Joe Biden's personal stories, including a recently told tale about lightning striking a pond outside his home.
• New York City said it will use surveillance drones to spy on large Labor Day weekend parties.
• Proud Boys leader Joe Biggs was sentenced to 17 years in prison for his activity related to January 6, 2021. "While 17 years constitutes a lengthy prison sentence, it is considerably shorter than what the government requested: Prosecutors wanted 33 years for Biggs," notes Reason's Robby Soave.
• The Institute for Justice is helping Indiana end-of-life consultant Lauren Richwine sue over the state's attempt to force her to get funeral director and funeral home licenses in order to legally continue counseling and assisting terminally ill patients and their families with end-of-life planning.
• A Texas town of 250 people has 50 full-time and reserve police officers. "The town collected more than $1 million in court fines last year," coming "from more than 5,100 citations officers wrote," reports Texas' CBS 19.
• In the latest episode of Reason's Why We Can't Have Nice Things podcast, host Eric Boehm looks at the "chicken tax" that makes pickup trucks more expensive.
