Stop Overprotecting the Children, Say Courts in Tennessee and California

Courts block laws regulating algorithms and online porn.

The courts have blocked two bad tech laws, just in the nick of time. Both measures—in Tennessee, requiring proof of age to view adult content online, and in California, restricting social media features for minors—were set to take effect January 1.

California's Anti-Algorithm Law Is on Hold

In California, a court put the Protecting Our Kids from Social Media Addiction Act on hold.

This measure would ban online platforms from using personalized recommendation algorithms to display content to people under age 18, set limits on when minors are allowed to use social media, and restrict the hours when social media companies can send minors notifications, unless parents consent for the platforms to do otherwise. The law said that as of January 1, 2025, tech companies had to implement these rules for accounts they had "actual knowledge" of belonging to minors (switching to a more stringent standard in 2027, when features would be restricted unless people could prove they are adults). The law also said social media companies must report how many minors hold accounts on their platforms.

On December 31, following a suit by the tech trade group NetChoice, U.S. District Judge Edward J. Davila stopped parts of the law from taking effect. The state could not start enforcing the requirements for notifications or for reporting the number of minor users, Davila ruled. But the state could start enforcing the portion of the law concerning algorithmic feeds (which California calls "addictive feeds"). California considered Davila's ruling a "win."

That was disappointing. There's an ongoing debate among legal scholars about whether algorithms are—or at least can be—expressive content: If they reflect the platforms' editorial choices, the argument goes, the First Amendment should protect them. And the Supreme Court's July 2024 decision in NetChoice v. Paxton and Moody v. NetChoice lent support to the idea that algorithms can be protected speech. But here was Davila pooh-poing the idea "that most or all personalized feeds covered by SB 976 are expressive and therefore implicate the First Amendment."

NetChoice filed an appeal with the U.S. Court of Appeals for the Ninth Circuit and asked the district court to halt the law in full while the appeal plays out. That worked: On January 2, Davila agreed to block the law in full until February 1, 2025.

'Adults Have a First Amendment Right' to Porn

Meanwhile, U.S. District Judge Sheryl H. Lipman issued a preliminary injunction to stop Tennessee's attorney general from enforcing the Protect Tennessee Minors Act (PTMA). The law—aimed at regulating online content that the state deems "harmful to minors"—is being challenged by the Free Speech Coalition (a porn trade group), Deep Connection Technologies (which runs a sex education platform called O School), and several others.

"While it directly targets internet pornography, its reach is much broader," noted Lipman in a December 30 order. The law "equally captures three different types of expression: (1) content that is 'sexually explicit and harmful or inappropriate for minors,' (2) content 'designed to appeal to or pander to the prurient interest,' and (3) content depicting genitalia and sexual contact….If the expression fits into one of these three categories, then it is considered 'content harmful to minors' unless it contains 'serious literary, artistic, political, or scientific value for minors.'"

Under the PTMA, website operators could be criminally and civilly punished for failing to prevent minors from seeing such content. Any platform where a third or more of the content was "harmful to minors" would be required to verify all visitor ages—reverifying every hour—and block those under age 18.  Failure to comply could result in being found guilty of a Class C felony, punishable by up to 15 years in prison, and/or civil liability in suits brought by individuals or the attorney general.

The lawsuit argued that the PTMA infringes on constitutionally protected speech. Lipman equivocally agreed. "The First Amendment is not shy in its protective sweep," she wrote:

It sits at the top of our Bill of Rights as the "star in our constitutional constellation" because its light reaches orthodox and unorthodox expression alike….To be sure, freedom of speech is not absolute. But the door preventing the state from intruding into this area "must be kept tightly closed and opened only the slightest crack necessary" to promote state interests. Based on the record at this stage, it appears that Tennessee has wedged its foot in the door farther than the Constitution will likely tolerate.

The Protect Tennessee Minors Act stands in a graveyard full of similar content-based restrictions at the state and federal level that lived—and died—before it….

The legislature has a compelling interest in protecting children from harmful content, and that is uncontested. But in its attempt to protect children, the State will unavoidably suppress a large amount of speech that adults have a First Amendment right to give and receive. The legislature's goal, however admirable, does not allow it to undermine an adult's freedom of speech. Neither the legislature nor this Court can turn a blind eye to the Constitution.

This ruling is good news, but it doesn't entirely mean websites that publish sexually oriented content are in the clear. "Private civil lawsuits and actions by individual district attorneys remain a potential threat," suggests the Free Speech Coalition.

Age verification laws in Florida and South Carolina did take effect on January 1. The group has been busy trying to swat down these laws in court as they pop up. It is currently suing in federal district court over the Florida law. And the group's suit over a similar law in Texas is headed to the Supreme Court this month.

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More Sex & Tech News

• On January 2, the U.S. Court of Appeals for the Sixth Circuit ruled that the Federal Communications Commission's "so-called 'Open Internet Order,' a variant of what is often referred to as 'net neutrality,' is unlawful," notes The Volokh Conspiracy. More specifically, it "was inconsistent with the statutory text of the Telecommunications Act."

• "We are now confident we know how to build [artificial general intelligence] as we have traditionally understood it," claims OpenAI CEO Sam Altman. "We believe that, in 2025, we may see the first AI agents 'join the workforce' and materially change the output of companies….We are beginning to turn our aim beyond that, to superintelligence in the true sense of the word. We love our current products, but we are here for the glorious future."

• The not-so-glorious present promises AI profiles on Facebook and Instagram. But why?

• The Biden administration asks the Supreme Court to uphold an impending law that will effectively ban TikTok, arguing that it does not violate the First Amendment (sigh).  The Department of Justice alleges that the bill is "narrowly tailored to prevent the [People's Republic of China] from covertly manipulating TikTok." President-elect Donald Trump has also submitted a brief to the Court, stating that he "opposes banning TikTok in the United States at this juncture, and seeks the ability to resolve the issues at hand through political means once he takes office."

• The conservative case against age-gating porn.

• A group of Massachusetts students are facing criminal charges after attempting (and filming) their own To Catch a Predator–style sting.

• Some regions of Russia are paying college students to have babies. "Meanwhile, Russia's federal government offers maternity payments that went up at the start of the year," Fortune reports. "First-time mothers can now receive 677,000 rubles ($6,150) in 2025, up from 630,400 last year. And women who have a second child can get 894,000 rubles ($8,130), up from 833,000 rubles."

Today's Image

The view from my window right now. (ENB/Reason)