As Santa Clara University law professor Eric Goldman wrote, the 5th Circuit “panel majority claims the 56-year-old Ginsberg opinion, which dealt with offline retailers, governs the Conlaw [constitutional law] analysis of the Texas law instead of the squarely on-point 1997 Reno v. ACLU and 2004 Ashcroft v. ACLU opinions, both of which dealt with the Internet.”
In his dissent, Judge Higginbotham said the majority’s attempts to distinguish Ginsberg from later rulings “are unconvincing.” Although “Ginsberg remains good law and indubitably recognizes the government’s power to protect children from age-inappropriate materials,” the Supreme Court “has unswervingly applied strict scrutiny to content-based regulations that limit adults’ access to protected speech,” he wrote.
The Texas law “limits access to materials that may be denied to minors but remain constitutionally protected speech for adults,” Higginbotham wrote. “It follows that the law must face strict scrutiny review because it limits adults’ access to protected speech using a content-based distinction—whether that speech is harmful to minors.”
Section 230 analysis flawed, professor says
The 5th Circuit panel majority found that Section 230 of the Communications Decency Act does not preempt the Texas law. Goldman called the decision “another entry in the Fifth Circuit’s increasingly unstable Section 230 jurisprudence.”
Goldman said that judges seem to be saying “that the age authentication mandate only regulates the services’ conduct, and thus it doesn’t impose liability for third-party content… However, fundamentally, the statute imposes liability for services for publishing third-party content to underage viewers, and Section 230 clearly should apply to that aspect.”
Goldman expects this case or similar ones to reach the Supreme Court:
This opinion will be appealed to the Supreme Court, alongside other cases over statutes imposing mandatory age authentication. The pro-censorship forces have been angling for an opportunity to challenge Reno v. ACLU and the COPA [Child Online Protection Act] caselaw, hoping that the Supreme Court will forget or overturn that precedent. This highlights the stakes of this and the other cases on their way to SCOTUS: do the foundational Constitutional law principles that have fostered the Internet’s success over the past 25+ years still apply, or have the rules since changed and opened the door to rampant government censorship? The Internet’s fate–and perhaps the fate of free speech in our country–hangs in the balance.
The Texas law also creates privacy problems, Higginbotham wrote in his dissent. It “prohibits commercial entities and third parties performing age verification from retaining identifying information, but the bill imposes no burden on governmental entities nor ‘any intermediary between the commercial websites and the third-party verifiers’ to do the same. Simply claiming that the ‘age verification preserves online anonymity’ does not make it so,” he wrote.