The Free Speech Coalition v. Paxton lawsuit case file has received an amicus brief straight from the Biden-Harris White House, and the gist is an attempt to stretch the First Amendment to cover age verification laws, digital ID laws.
The Department of Justice (DoJ) seems to be using the opportunity to make its voice heard in the case involving the Texas law (HB 1181), in order to pave the way for broader use of online age verification going forward.
The amicus brief thus talks about such laws (plural), as it urges the court to make it clear that the First Amendment “does not necessarily foreclose appropriately tailored age-verification laws.”
We obtained a copy of the brief for you here.
Rights groups, on the other hand, want the Supreme Court to declare HB 1181 unconstitutional, as it requires adult users to provide personal data to prove they are not minors, which removes their online anonymity and creates privacy and security risks.
The unconstitutionality of HB 1181 as seen by this side in the arguments is related to the First Amendment and the right of adults to access sexual content.
The law, meanwhile, was passed to prevent minors from accessing online material that is designated as sexual or harmful (and makes up one-third or more of a site’s content). The legislation mandates age verification and provides for a civil penalty.
The Fifth Circuit of Appeals supported the law, and now it is up to the US Supreme Court to decide.
The DoJ amicus brief comes after those filed by the likes of the digital rights group EFF, several associations, and think tanks, who took a stance against the law in favor of free speech.
The brief filed by the government states that the case is about the standard of constitutionality of the law, and notes that Congress previously passed similar laws – and “may legislate in this area again.”
For this reason, the document adds, the United States (DoJ) “has a substantial interest in the development of the applicable First Amendment principles.”
The argument made here is that the Court of appeals made a mistake when it applied “only rational-basis review,” and that the Supreme Court should send the case back so that proper standards can be applied.
But the brief goes on to state: “In so doing, however, the court should make clear that the First Amendment does not prohibit Congress and the states from adopting appropriately tailored measures to prevent children from accessing harmful sexual material on the internet.”
The DoJ goes on to argue that this could potentially include age verification requirements “analogous to those that have long been applied to the distribution of such material in the physical world.”
