Fighting Texas’s Unconstitutional HB 1181 at the Supreme Court!
Texas House Bill 1181, the age-verification bill, raises serious concerns for privacy and free speech rights. The law imposes undue burdens on adults seeking lawful content and raises privacy concerns due to collecting personal information. The law was enacted on September 1, 2023, and mandates stringent age verification measures for websites hosting content deemed “harmful to minors,” primarily targeting adult content sites. The law requires these sites to implement robust age verification systems, such as requiring users to provide government-issued IDs or commercial documents to prove they are over 18. The legislation aims to protect minors from exposure to explicit content online by holding website operators accountable with significant penalties for non-compliance, including fines up to $10,000 per day and potentially $250,000 if a minor accesses harmful material due to a site’s failure to comply.
What We’re Doing About It
Earlier this year, The Woodhull Freedom Foundation and the Electronic Frontier Foundation submitted a brief to the United States Supreme Court urging the Justices to rule on TX’s unconstitutional age verification law. After that request was granted, we filed a subsequent brief in support of the constitutional challenge brought by the ACLU, the Free Speech Coalition, and others asking the U.S. Supreme Court to reverse a lower court ruling that, if left standing, would impermissibly burden free speech online, as a result of the unconstitutional age-verification mandate in Texas’s H.B. 1181. The United States Supreme Court has scheduled Oral Argument in this case for January 15, 2024.
Woodhull Freedom Foundation, the Electronic Frontier Foundation (EFF), and TechFreedom filed a friend-of-the-court brief with the Supreme Court, urging it to strike down Texas’ HB 1181. This law, which mandates age verification for websites with substantial sexual content, has sparked a significant legal debate. Enacted in 2023, HB 1181 requires websites that Texas deems to have “one-third” or more of “sexual material harmful to minors” to implement age verification measures for all visitors. This law has raised concerns about online privacy, anonymity, and free speech.
The brief argues that HB 1181 unconstitutionally burdens adults’ access to protected speech online. It emphasizes that the law forces adults to surrender their anonymity and exposes them to privacy and security risks when accessing legal sexual content.
We point out that the Fifth Circuit’s decision to uphold HB 1181 deviates from decades of legal precedent requiring that laws burdening the free speech rights of adults meet the strict scrutiny test that was not applied by the Circuit Court. Previous courts have consistently ruled that similar age verification laws are unconstitutional, recognizing that online ID mandates impose greater burdens on First Amendment rights than in-person age checks.
The brief addresses the limitations of age verification technologies:
- Broad Application: HB 1181 requires age verification for entire websites, not just specific sexual materials.
- Data Retention: Users must disclose personal information to age verify, thereby increasing privacy and data security risks.
- Limitations of New Technologies: Even newer methods like “age estimation” introduce their own problems and may not satisfy HB 1181’s requirements.
We further argue that HB 1181’s age verification mandate continues to impose significant harm on adults exercising their constitutional rights despite any alleged technological advancements since previous court rulings on similar laws.
We argue that the potential consequences of upholding HB 1181 include the chilling effect on protected speech, a clear violation of adults’ rights to access lawful sexual content online, and a dangerous erosion of online anonymity and privacy.
By filing this brief, Woodhull Freedom Foundation, the EFF, and TechFreedom aim to provide the Supreme Court with crucial insights into the constitutional and practical implications of HB 1181. We urge the Court to reaffirm previous decisions that have protected online expression and adult access to constitutionally protected content.
The Supreme Court’s decision will have far-reaching consequences for internet users’ rights and the future of online content regulation in the United States.
Further Reading About Age Verification
- Do Online Age Verification Laws Limit Speech Online?
- Is Online Age Verification the Same as ‘Flashing Your ID at a Liquor Store’?
- Tracking Age Verification Legislation
Court Filings
- Amicus Brief – Them Before Us
- Amicus Brief – Scholars for the Respondent
- Amicus Brief – The Reward Foundation
- Amicus Brief – Alliance Defending Freedom
- Amicus Brief – Justice Defense Fund
- Amicus Brief – The Matthew XVIII Group and the Reisman Institute
- Amicus Brief – The Manhattan Institute and Technology Scholars
- Amicus Brief – Social Science Scholars
- Amicus Brief – Exodus Cry, Stand with Survivors, and Protect Young Eyes
- Amicus Brief – American Foundation for Addiction Research, et al
- Amicus Brief – States of Ohio, Indiana and 22 other States
- FSC v. Paxton – FSC Application for Extension of Time to File Reply Brief on the Merits