Texas Judge Rules App Store Age Verification Likely Unconstitutional

Drew Wilson opined that app store age verification would run into problems. A Texas judge made that prediction reality.

A little over a week ago, I wrote about device level age verification and concluded that device level age verification isn’t going to be any better than current bad age verification efforts. The reason is that all you are doing is moving the deck chairs on the sinking ship because, technologically, the systems being implemented are still the same broken mess that they are elsewhere.

The reason this is a thing at all is thanks, in part, to platforms knowing full well how broken the technology is and deciding to sluff off the problems of the technology onto app stores instead to avoid the inevitable liability that is going to hit them. As I argued, that won’t magically make this broken technology somehow magically work, contrary to what the platforms are arguing, but rather, it ensures that the system would have maximum impact on creating as many victims as humanly possible.

Take, for example, the Discord data breach. While it has long been the subject of debate whether it affected only tens of thousands of users or millions, the reality is that such a breach would only be exclusively tied to the service Discord uses. If you never used Discord, and you aren’t using a service that is also used by Discord, then your information is safe. Conversely, if that service was run through, say, the Apple app store, then the breach would be significantly worse because instead of people using a specific service, then you have everyone using the Apple app store impacted which is a much larger pool of users.

While I did focus on the technological side of things, I didn’t necessarily focus on how legally problematic such a requirement is. Much like other age verification laws that got slapped down in the courts again and again and again, things get legally problematic when it comes to the government trying to censor otherwise legally protected speech. This is because a number of countries have this little concept called “freedom of expression” or “free speech” which is supposed to be protected by a free countries constitution.

This is because you are getting into the concept of government attempting to curtail speech in general and put up impediments. Generally speaking, many of these efforts to control speech online through age verification is a back door effort to try and suppress the LGBTQ+ community. In fact, some supporters of age verification don’t even bother making this a secret given how openly bigoted they can be. So, in their quest to support age verification, they rush to classify anything related to the LGBTQ+ community as little more than “harmful” or “pornographic” so that only adults can access such material under the watchful eye of government. It goes without saying just how psychologically damaging it can be when younger people are forcibly cut off from their community. Of course, none of that matters to the homophobic because as far as they are concerned, anything that deviates from heterosexuality is the work of the devil or otherwise poisoning the minds of the youth.

Legally speaking, the problem is that when you go up to a judge and argue that you want to suppress free speech to protect people, in a sane court system, that is going to be one heck of an uphill battle. People say mean things all the time and if it’s not online people are saying these things, then it’s going to be happening offline instead. In short, you’re not protecting anyone in the process of abridging freedom of expression. While the American justice system has been politicized by right wing activist judges who are pushing to exert their power to enforce their personal belief system over caselaw (as was the case with the overturning of Roe v Wade), you still have judges out there who are willing to rule based on what the law says and general caselaw.

That was apparently the case recently in a court in Texas. In 2023, Texas passed age verification laws to restrict speech online. The outcome was obvious as VPN used soared in 2024 as the law took effect. This, unsurprisingly, angered the free speech hating Republicans who would respond by passing a new age verification law that would mandate age verification happen at the device level. This in their never ending quest to stamp out free speech entirely. Today, we learned that the new state law was blocked from going into effect after the judge said that it is likely unconstitutional. From Kera News:

A Texas federal judge temporarily blocked a new state law requiring adults and minors to verify their age before downloading apps or making in-app purchases Tuesday.

Senate Bill 2420, scheduled to take effect Jan. 1, passed almost unanimously in this year’s legislative session. Also known as the App Store Accountability Act, the law would require adults to verify their age before downloading any app, and minors would need parental approval before downloading apps or making in-app purchases. Parents would have to prove their identity and give consent with each download.

Students Engaged in Advancing Texas, or SEAT, and two high school students under 18 sued Texas Attorney General Ken Paxton — whose office would enforce the law — in October to stop it from taking effect. Plaintiffs argued the law would put content-based restrictions on speech, replacing parents’ freedom to moderate their kids’ internet access.

U.S. District Judge Robert Pitman of Austin sided with the plaintiffs in a preliminary injunction order Tuesday, finding that the law is likely unconstitutional. But Pitman also acknowledged the importance of efforts to curb children’s use of devices, social media and games that can interfere with their real lives.

“These consequences are substantial, and the Court recognizes the broad support for protecting children when they use apps,” Pitman wrote. “But the means to achieve that end must be consistent with the First Amendment.”

Adam Sieff, one of the students’ attorneys, said in a statement the law was Texas’ latest attempt to censor the students and regulate their households, and he lauded Pitman for blocking it.

“App stores allow anyone with a smartphone and an internet connection to access the accumulated sum of virtually all recorded human knowledge and expression,” Sieff said. “Banning students like SEAT’s members, M.F., and Z.B., from accessing these massive libraries without parental consent, just because the government thinks that’s what their parents ought to want, has never been a constitutionally permissible way to protect kids or support families.”

The fact that age verification laws are unconstitutional is nothing new. It is a direct assault on freedom of expression and privacy. Whether these laws are mandated on the platform level or the device level, the problem remains the same. It’s still unconstitutional.

While this is, without a doubt, excellent news, the fly in the ointment here is that this can always be overturned at the Supreme court level for the reason that certain judges will believe that blocking this unconstitutional law would interfere with their personal beliefs. Still, it’s hard to argue against a good ruling like this and at a time when victories for basic civil liberties are few and far between, we’ll take what we can get.

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