US Supreme Court to Decide (Again) On Constitutionality of Age Verification

The US Supreme Court as granted a petition for a cert to hear another age verification case, paving the way for a rematch.

Age verification laws are heavily flawed for a number of reasons. It mandates technology that simply doesn’t exist in any effective or secure manner. Those laws also mandate technology that have a reputation for breaches and leaks. The concept is based on a premise that bucks scientific evidence in favour of gut feelings from busy bodies. What’s more, such laws are regularly ruled unconstitutional.

What’s more, efforts to pass such legislation are also based on the same flawed concept as the disastrous link tax laws. If other jurisdictions pass such a law, then this jurisdiction must pass similar laws. The reality is that such laws are bad in other jurisdictions and it isn’t any better in this jurisdiction. It is trivial to circumvent such ISP level blockades in the first place and, in some cases, supporters fully admit that their efforts are ultimately ineffective. Instead, they argue, people who grew up with the internet are too stupid to understand the internet, so, therefore, the flaws are no big deal and they must be mandated anyway. Their positions really are well and truly self satirizing.

While pointing out flaws in such laws is like shooting fish in a barrel, those pushing these laws don’t necessarily need evidence or even a good argument for why such a law is constitutional. All they really need is political power to ram such laws through. Generally speaking, that’s what many supporters of such laws rely on. Use political moves to pass such laws anyway and the consequences are, well, someone elses problem. Invariably, it does become someone elses problem, though, as it is so often challenged in court and the laws end up getting ruled unconstitutional, costing taxpayers who knows how much money.

One case in the US is going to be heard in the highest court in the land, the US Supreme Court. The case revolves around the Texas age verification laws. This after the Fifth Circuit bizarrely ruled that age verification laws are perfectly constitutional. For legal experts and observers, the decision was bizarre because it ignores a whole stack of caselaw and basically re-writes a whole lot of things just to handle the logical gymnastics needed to render such a decision. That’s ultimately how we got here in the first place.

The thing is, it’s those circumstances that have legal observers thinking optimistically about how the US Supreme Court is going to go. From TechDirt:

Of course, it’s anyone’s guess as to how the Supreme Court will rule, though there are a few signs that suggest it may use this to smack down the Fifth Circuit and remind everyone that Ashcroft was decided correctly. First, especially this past term, the Supreme Court has been aggressively smacking down the Fifth Circuit and its series of crazy rogue rulings. So it’s already somewhat primed to look skeptically at rulings coming out of the nation’s most ridiculous appeals court.

Second, if the Fifth’s reasoning wasn’t nutty, then there would be little to no reason to take the case. Again, the Court already handled nearly this very issue twenty years ago, and the Fifth Circuit is the first to say it can just ignore that ruling.

That said, any time the Supreme Court takes up an internet issue, you never quite know how it’s going to end up, especially given Justice Kagan’s own comment on herself and her colleagues that “these are not, like, the nine greatest experts on the internet.”

On top of that, any time you get into “for the children” moral panics, people who might otherwise be sensible seem to lose their minds. Hopefully, the Supreme Court takes a more sober approach to this case, but I recognize that “sober analysis” and this particular Supreme Court are not always things that go together.

Indeed, if the Supreme Court was going to agree with the lower courts decision, why go through the trouble of hearing this case in the first place? Still, anything could happen with the Supreme Court these days. I mean, just look at Roe v Wade where the Supreme Court decided to overturn decades of precedence just because it didn’t align with some of the justices personal beliefs. That’s why it’s always a tossup for what the court is going to do.

There is, indeed, plenty of caselaw to suggest that age verification laws are unconstitutional. As Techdirt notes, this very question was before the Supreme Court twenty years ago and age verification laws were ultimately ruled as unconstitutional. So, only time will tell if the court will go two for two on this question. People around the world are hopeful that they’ll get it right again this time around.

Drew Wilson on Mastodon, Twitter and Facebook.

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