Court Rules Indiana’s Age Verification Law Likely Unconstitutional

Another court is questioning the constitutional nature of age verification law. It’s another blow to the laws supporters.

Supporters of various age verification laws often give the impression that they are on some sort of moral crusade to rid the world of all that is impure in modern society. Using gut feelings, assumptions, and personal opinions, they are vowing to rid the internet of the evils of adult content that is desecrating the internet. All that are impure must be vanquished in this holy war.

Of course, such supporters keep running into problems in this rather silly quest. Pesky little things like facts, reality, evidence, the law itself, and other things just keep frustratingly getting in the way.

Reality, for instance, states that IP address blocking is an ineffective way to age gate material at the ISP level. For example, VPN’s easily circumvent such blockades. In fact, changing your IP address to show a different location is basically their main function. What’s more, such technology is widely known for those who regularly use the internet and when such laws were passed in Texas, VPN searches soared. Supporters of things like Bill S-210 in Canada respond to this reality by relying on their gut feelings and stating that, don’t worry, people are too stupid to understand VPNs, so it’s no big deal.

Facts generally state, among other things, that age verification systems that are effective and secure simply doesn’t exist. Instead, such laws demand that tech companies just “nerd harder” to make this magical mythical technology a reality. Some supporters even go so far as to suggest that technology that exists today are “good enough” because when it comes to securing highly sensitive information, half measures or even low effort is “good enough” because securing such information is frequently a low priority for those pushing these laws and figuring it all out at a later time is acceptable as far as they are concerned.

In fact, some go so far as to take things a step farther and try to pretend that the security that exists with verification technology is already sufficiently secure. Pretending that this security exists is the tactic that tends to be employed in these debates. However, no amount of pretending is going to magically make security perfect. As we found out late last month, such systems have a tendency of not being secure at all and spilling people’s information onto the wider open internet.

Sites like Pornhub, however, have recognized the security nightmare this all is and have taken to the extreme measure of either blocking jurisdictions dumb enough to pass such laws or openly contemplating such measures for jurisdictions contemplating such laws.

Finally, there is the law itself. North American countries like the United States and Canada have this thing called “freedom of expression”. This is proving to be a major obstacle for supporters of age verification laws because the material they are seeking to block is otherwise legal expression. This is because we are talking about a government censoring lawful speech – something that constitutional protections were largely designed to guard against. After all, we do live in this system called a “democracy”.

Courts, for their part throughout North America, have repeatedly ruled that such laws are either likely unconstitutional or are, straight up, unconstitutional. Don’t worry, though, supporters of such laws have a gut feeling that these laws are constitutional and it’s only a matter of time before the courts figure it all out.

The problem is, the courts are seeing the world rather differently. Another court has basically taken the stance of “that’s not how this works. That’s not how any of this works” when it comes to such laws. According to TechDirt, a court has ruled that Indiana’s age verification law is likely unconstitutional:

Among other things, the age verification in this law doesn’t just apply to material that is obscene to minors:

The age verification requirements do not just apply to obscene content and also burden a significant amount of protected speech for two reasons. First, Indiana’s statute slips from the constitutional definition of obscenity and covers more material than considered by the Miller test. This issue occurs with the third prong of Indiana’s “material harmful to minors” definition, where it describes the harmful material as “patently offensive” based on “what is suitable matter for . . . minors.” Ind. Code § 35- 49-2-2. It is well established that what may be acceptable for adults may still be deleterious (and subject to restriction) to minors. Ginsberg, 390 U.S. at 637 (holding that minors “have a more restricted right than that assured to adults to judge and determine for themselves what sex material they may read or see”); cf. ACLU v. Ashcroft, 322 F.3d 240, 268 (3d Cir. 2003) (explaining the offensiveness of materials to minors changes based on their age such that “sex education materials may have ‘serious value’ for . . . sixteen-year-olds” but be “without ‘serious value’ for children aged, say, ten to thirteen”), aff’d sub nom. in relevant part, 542 U.S. 656 (2004). Put differently, materials unsuitable for minors may not be obscene under the strictures of Miller, meaning the statute places burdens on speech that is constitutionally protected but not appropriate for children

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:

To be sure, protecting minors from viewing obscene material is a compelling interest; the Act just fails to further that interest in the constitutionally required way because it is wildly underinclusive when judged against that interest. “[A] law cannot be regarded as protecting an interest ‘of the highest order’ . . . when it leaves appreciable damage to that supposedly vital interest unprohibited.” …

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.

The Attorney General has not even attempted to meet its burden to explain why this speaker discrimination is necessary to or supportive of to its compelling interest; why is it that a website that contains 32% pornographic material is not as deleterious to a minor as a website that contains 33% pornographic material? And why does publishing news allow a website to display as many adult-images as it desires without needing to verify the user is an adult? Indeed, the Attorney General has not submitted any evidence suggesting age verification would prohibit a single minor from viewing harmful materials, even though he bears the burden of demonstrating the effectiveness of the statute. Ultimately, the Act favors certain speakers over others by selectively imposing the age verification burdens. “This the State cannot do.” Sorrell v. IMS Health Inc., 564 U.S. 552, 580 (2011). The Act is likely unconstitutional.

(emphasis mine)

Everything about age verification laws are deeply problematic. Arguably, the fact that they are unconstitutional is going to prove to be a huge problem for those pushing these laws. While the political game to stop these terrible laws is going to be much harder for those who support free speech, the legal game is going to be much harder. In other words, I can see these bad laws being passed in the end, but getting struck down in the courts afterwards. I’m actually more confident this will happen in Canada than in the US simply because of how packed the US courts are with right wing activists. If there is evidence to say the same thing is happening in Canada to the same degree, I’m not familiar with that evidence.

Still, this latest ruling is just the latest legal hit that supporters of these age verification laws have taken. I would think that this won’t be the last time such a ruling is made, either, but I can say for certain that this is a ruling that supporters of age verification laws would like you to forget about. Either way, this development is excellent news for those who support freedom of expression.

Drew Wilson on Mastodon, Twitter and Facebook.

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