Another Age Verification Law Ruled Unconstitutional

Arkansas age verification law has been ruled unconstitutional. Apparently, this is the second time this has happened.

One of the long-running problems about age verification laws are the fact that these laws are generally incompatible with basic human rights. In one example is the fact that it violates freedom of expression rights in various countries. Like it or not, everyone has the right to freedom of expression regardless of age. That includes the very people that these laws and their backers claim to be protecting. Since social media is a major place where people express themselves, having the government mandate that they be censored entirely from those very platforms is legally very problematic.

Questions about the constitutional nature of age verification have been going around for years. Courts have repeatedly confirmed that these laws are, in fact, unconstitutional. We’ve seen this with the Ohio age verification law, the Indiana age verification law, the Tennessee age verification law, and even the Texas age verification law.

Despite the string of losses, supporters of age verification laws continue to insist that these mass government censorship laws are perfectly constitutional largely because said supporters exist in their own reality bubble where government censorship is FREEDOM!!!! Well, you can add another loss for age verification supporters.

Arkansas has been pushing their own age verification law for years now. Apparently, in 2023, their age verification law was ruled unconstitutional. So, lawmakers in that state took another kick at the can to fix the apparent flaws. Those apparent fixes were nowhere near sufficient because a court has, once again, ruled that the age verification law is unconstitutional. From TechDirt:

“Contemporary understanding of addiction” is doing a lot of work here, and it’s not up to the job. There is no consensus that social media constitutes addiction in any clinical sense. So it’s entirely unclear what a company would need to do here, which is fatal in a First Amendment context. And yet, the law is designed such that violations are strict liability and ridiculously broad. A plain reading of the law shows that it is not limited to addiction to the platform itself; a platform can apparently be held liable if its practices “evoke” addiction to off-platform activities. And the statute uses the singular “user,” meaning a single child’s response triggers liability.

As the court puts it:

Not only does Act 900 impose liability based on a single child’s response to the platform, it does so on a strict liability basis—a platform is liable for a practice the evokes addiction in a single child even if it could not have known through the exercise of reasonable care that the practice would have such an effect. “Businesses of ordinary intelligence cannot reliably determine what compliance requires.”

The state, realizing belatedly that it had written an unworkable law, asked the court to just sort of ignore the strict liability language and read in a specific intent requirement that doesn’t exist anywhere in the text. As the judge notes, that’s not how any of this works. The courts interpret the law as written and are not there to fix the legislature’s mistakes:

Instead of defending the statute the General Assembly enacted, Defendants ask the Court to rewrite it by ignoring the strict liability provision altogether and inserting a specific intent requirement that appears nowhere in the text. The Court cannot do so.

Then there’s the default provisions. The court was actually somewhat sympathetic to the idea that the state has a legitimate interest in helping kids sleep. The problem is that the law itself undermines that interest by letting parents flip the nighttime notification blackout off. And the government is not there to fix what parents refuse to do:

While Defendants justify the notification default as an aid to parental authority, they ignore their own evidence that parents are part of the problem. If parents wanted to prevent their children’s sleep from being disrupted by late-night notifications, they have a readily available, free, no-tech solution already at their disposal: taking devices away at night. Yet “86% of adolescents sleep with their phone in the bedroom.” …. The State has provided no evidence that parents lack the tools to assert their authority in this domain, so it appears unlikely that the State’s deferential approach to restricting nighttime notifications will actually serve its stated interest in ensuring minors get enough sleep. This “is not how one addresses a serious social problem.”

The privacy default is worse. It requires platforms to set privacy controls to their most restrictive level for minors — but says nothing about who can change them. Meaning, as the court notes, the minor can just… change them. The state argued this was necessary to protect children from sexual exploitation online. The court points out the obvious problem:

On the other hand, because the default can be changed by the minor, this provision is also wildly underinclusive. Defendants say children need this law to protect them from sexual exploitation online. But the law, in effect, allows children to decide whether they need protection from sexual exploitation online because they are free to depart from the protective default. As Defendants’ evidence shows, teenagers’ developing brains make them less likely than adults to appreciate the risks associated with, for example, making their profiles public… Like the notification default, while the burdens imposed by the privacy default may be slight, they do not appear likely to serve the State’s asserted interest at all. Imposing small burdens on vast quantities of speech for no appreciable benefit is not consistent with the First Amendment. Arkansas cannot sentence speech on the internet to death by a thousand cuts.

Any law that burdens First Amendment speech has to be tailored precisely to a compelling goal. And if it’s either under or over-inclusive, it’s going to have problems surviving. Making it such that kids could just turn off the privacy controls fails that test.

To my knowledge, the whole “sleep” excuse is a relatively new one in these debates. It is often used as a cover for the unconstitutional nature of these laws. This by framing these laws as a fix for a public health issue. The reality is sleep deprivation happens for a huge variety of reasons. Whether it’s someone working a shift that ends on closing and being asked to work the early morning shift the next morning, stress from bullying at school, cramming for exams, working while going to school, using a flashlight to read comic books under the sheets, or a huge variety of other reasons that I could spend eternity naming that has nothing to do with social media.

Either way, framing this debate as an attempt to solve sleep deprivation is an especially weak argument to be making here. As the court example above shows, it’s not an excuse for the government to start massively censoring major places on the internet for a specific type of person. If younger people are losing sleep because of social media, then parents are free to step in with basic parenting such as making settings on the router, explaining that sleep is important, or simply walking into the room late at night and telling their child to turn off the darn phone and go to sleep. This isn’t some massive public health emergency that is new nor is it justification for such widespread government censorship.

Then there is the fact that these laws are frequently targeting the LGBTQ+ community. Often, the same people that declare being LGBTQ+ is somehow a mental health problem or an evil sin that must be excised from society are the same people pushing these laws in the first place. They know that while public support networks can be touch and go, social media groups sometimes fill the support void left behind by the public community. As a result, younger people who identify as someone in this community can learn a lot about their identity and seek support when they are unable to find that support anywhere else. Supporters of age verification have quietly despised all of this and want to break these communities up by cutting off access to these support groups in the first place. In some instances, the cruelty is the point.

Still, the fact that courts are still ruling these laws as unconstitutional does provide some hope that even if the political realm is routinely rejecting the science in favour of maintaining their own reality bubble while pushing to pass these laws, it’s entirely possible that the courts will step in and tell lawmakers “that’s enough.” It won’t stop the damage unleashed by these laws, but there is the possibility that the damage will be minimized at least

Drew Wilson on Mastodon, Bluesky and Facebook.