Amicus Curiae Brief — Free Speech Coalition, Inc., et al., Petitioners v. Ken Paxton, Attorney General of Texas
Supreme Court briefSep 23, 2024
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No. 23-1122
In the
Supreme Court of the United States
FREE SPEECH COALITION, INC., et al.,
Petitioners,
v.
KEN PAXTON, ATTORNEY GENERAL OF TEXAS,
Respondent.
On Petition for a Writ of Certiorari to the
United States Court of A ppeals for the Fifth Circuit
BRIEF OF AMICI CURIAE ELECTRONIC
FRONTIER FOUNDATION, WOODHULL
FREEDOM FOUNDATION, AND TECHFREEDOM
IN SUPPORT OF PETITIONERS
Corbin K. Barthold
A ri Cohn
Berin Szóka
TechFreedom
1500 K Street NW, 2nd Floor
Washington, DC 20005
Attorneys for Amicus
Curiae TechFreedom
A aron Mackey
Counsel of Record
Elizabeth Femia
David Greene
Electronic Frontier
Foundation
815 Eddy Street
San Francisco, CA 94109
(415) 436-9333
amackey@eff.org
Counsel for Amici Curiae
(For Continuation of Appearances See Inside Cover)
331102
A
(800) 274-3321 • (800) 359-6859
Lawrence G. Walters
Walters Law Group
195 W. Pine Avenue
Longwood, FL 32750
Corey D. Silverstein
Kevin S. Toll
Silverstein Legal
30150 Telegraph Road, Suite 444
Bingham Farms, MI 48025
Attorneys for Amicus Curiae
Woodhull Freedom Foundation
i
TABLE OF CONTENTS
Page
TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . iv
STATEMENT OF IDENTITY AND INTEREST OF
AMICI CURIAE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 2
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
I.
REQUIRING ADULTS TO VERIFY
THEIR AGES BEFORE SPEAKING
A N D AC C E S S I NG PR O T E C T E D
SPEECH ONLINE IMPOSES DISTINCT
HARMS THAT ARE NOT PRESENT
WHEN REQUIRING IN-PERSON AGE
VERIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . 4
A. Online Age Verification Impermissibly
Blocks Access To Protected Speech For
The Millions Of Adults Who Lack The
Requisite Proof Of Identification . . . . . . . . . 5
B. Online Age Verification Chills Adult
Users From Accessing Protected Speech
By Impermissibly Burdening The
Right To Be Anonymous Online . . . . . . . . . 10
ii
Table of Contents
Page
C. Online Age Verification Further Chills
Adult Users From Speaking and
Accessing Protected Speech By Putting
Their Most Sensitive Data At Risk
Of Inadvertent Disclosure, Breach,
Or Attack . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
1.
HB 1181 Does Not Ameliorate The
Data Privacy Concerns Surrounding
Online Age-Verification Regimes . . . . 15
2. HB 1181’s Data Collection Regime
Will Inevitably Be Plagued By
The Unavoidable Inadvertent
Disclosure Of Data . . . . . . . . . . . . . . . . 17
II. A LTHOUGH AGE V ERIFICATION
T E C H NOL O G Y H A S E VOLV E D,
NONE OF THOSE CHANGES HAVE
SUBSTANTIALLY LESSENED THE
HARMS IMPOSED BY HB 1181 ON
A DULTS W HO W ISH TO ACCESS
LAWFUL SPEECH ONLINE . . . . . . . . . . . . . 20
A. Certain Burdens On Adults’ First
Amendment Rights Are Inherent To
Broad Age-Verification Mandates
And Are Not Eliminated By New
Technology . . . . . . . . . . . . . . . . . . . . . . . . . . 21
iii
Table of Contents
Page
B. The Burdens Imposed By HB 1181
Are Not Resolved By Newer Forms Of
Age-Gating Technology, Such As Age
Estimation . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
C. HB 1181’s Statutory Scheme Otherwise
Exacerbates The Harms Of Online Age
Verification . . . . . . . . . . . . . . . . . . . . . . . . . . 26
III. HB 1181 FAILS STRICT SCRUTINY . . . . . . . 28
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
iv
TABLE OF CITED AUTHORITIES
Page
Cases
ACA Connects v. Frey,
471 F. Supp. 3d 318 (D. Me. 2020) . . . . . . . . . . . . . . . . 1
ACLU v. Gonzales,
478 F. Supp. 2d 775 (E.D. Pa. 2007) . . . . . . . 10, 16, 31
ACLU v. Johnson,
194 F.3d 1149 (10th Cir. 1999) . . . . . . . . . . . . . . . . . . . 3
ACLU v. Mukasey,
534 F.3d 181 (3d Cir. 2008) . . . . . . . . . . . . . . . . . . 10, 12
ACLU v. Reno,
31 F. Supp. 2d 473 (E.D. Pa. 1999) . . . . . . . . . . . . . . . 1
ACLU v. Reno,
929 F. Supp. 824 (E.D. Pa. 1996) . . . . . . . . . . . . . . . . . 1
Am. Booksellers Found. for Free Expression v.
Sullivan,
799 F. Supp. 2d 1078 (D. Alaska 2011) . . . . . . . . 22, 32
Am. Booksellers Found. v. Dean,
342 F.3d 96 (2d Cir. 2003) . . . . . . . . . . . . . . . . . 3, 10, 32
Ashcroft v. ACLU,
542 U.S. 665 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
v
Cited Authorities
Page
Barnes v. Glen Theatre, Inc.,
501 U.S. 560 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Bolger v. Youngs Drug Products Corp.,
463 U.S. 60 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Brown v. Ent. Merchants Ass’n,
564 U.S. 786 (2011) . . . . . . . . . . . . . . . . . . . . . . . . 29, 32
Butler v. Michigan,
352 U.S. 380, 383 (1957) . . . . . . . . . . . . . . . . . . . . . . . 30
Carey v. Population Servs. Int’l,
431 U.S. 678 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
City of Erie v. Pap’s A.M.,
529 U.S. 277 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
City of Los Angeles v. Alameda Books, Inc.,
535 U.S. 425 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Cyberspace, Commc’ns, Inc. v. Engler,
55 F. Supp. 2d 737 (E.D. Mich. 1999) . . . . . . . . . . . . 10
Denver Area Educ. Telecomms. Consortium,
Inc. v. FCC,
518 U.S. 727 (1996) . . . . . . . . . . . . . . . . . . . . . . . . 16, 30
FCC v. Pacifica,
438 U.S. 726 (1978) . . . . . . . . . . . . . . . . . . . . . . . . 28, 29
vi
Cited Authorities
Page
Free Speech Coal., Inc. v. Colmenero,
689 F. Supp. 3d 373 (W.D. Tex. 2023) . . . . . 3, 8, 12, 16,
19, 20, 21, 27, 30
Free Speech Coal., Inc. v. Paxton,
95 F.4th 263 (5th Cir. 2024) . . . . . . . . . . . . . . . 5, 15, 21
Free Speech Coalition, Inc. v. Rokita,
No. 1:24-cv-00980-RLY-MG, _ _ _ F. Supp.
3 d _ _ _ , 2 0 2 4 W L 3 2 2 819 7 (S .D. I nd.
June 28, 2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 32
FW/PBS, Inc. v. City of Dallas,
493 U.S. 215 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Ginsberg v. New York,
390 U.S. 629 (1968) . . . . . . . . . . . . . . . . 3, 12, 15, 21, 28
In re Anonymous Online Speakers,
661 F.3d 1168 (9th Cir. 2011) . . . . . . . . . . . . . . . . . . . 10
In re Clearview AI Litig.,
585 F. Supp. 3d 1111 (N.D. Ill. 2022) . . . . . . . . . . . . . . 1
Interactive Digit. Software Ass’n v.
St. Louis Cnty.,
329 F.3d 954 (8th Cir. 2003) . . . . . . . . . . . . . . . . . . . . 32
McIntyre v. Ohio Elections Comm’n,
514 U.S. 334 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
vii
Cited Authorities
Page
NetChoice, LLC v. Fitch,
No. 1:24-cv-170-HSO-BWR, _ _ _ F. Supp.
3d _ _ _ , 2 0 2 4 W L 3276 40 9 (S.D. M iss.
July 1, 2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 30, 32
NetChoice, LLC v. Griffin,
No. 23-CV-05105, 2023 WL 5660155 (W.D. Ark.
Aug. 31, 2023) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 31, 32
NetChoice, LLC v. Yost,
No. 24-cv-00047, ___ F. Supp. 3d ___, 2024 WL
555904 (S.D. Ohio Feb. 12, 2024) . . . . . . . . . . . . . . . . . 3
PSInet v. Chapman,
362 F.3d 227 (4th Cir. 2004) . . . . . . . . . . . . . . . . 3, 5, 11
PSINet, Inc. v. Chapman,
167 F. Supp. 2d 878 (W.D. Va. 2001) . . . . . . . . . . . 14, 32
Reno v. American Civil Liberties Union,
521 U.S. 884 (1997) . . . . . . . . . . . . . . . . 3, 11, 28, 29, 30
Sable Communications v. FCC,
492 U.S. 115 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Shipley, Inc. v. Long,
454 F. Supp. 2d 819 (E.D. Ark. 2004) . . . . . . . . . . . . 32
Stanley v. Georgia,
394 U.S. 557 (1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
viii
Cited Authorities
Page
U.S. v. Playboy Entertainment Group, Inc.,
529 U.S. 803 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Will Co. v. Lee,
47 F.4th 917 (9th Cir. 2022) . . . . . . . . . . . . . . . . . . . . . 23
Winters v. New York,
333 U.S. 507 (1948) . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Young v. Am. Mini Theatres, Inc.,
427 U.S. 50 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Statutes
U.S. Const. amend. I . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5
18 U.S.C. § 2721 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Texas House Bill (H.B.) 1181 . . . . . . . 9, 11, 12, 14, 15, 16,
19, 20, 21, 27, 29, 30, 31
Other Authorities
Alex Najibi, Racial Discrimination in Face
Recognition Technology, Harvard Sci. in the News
(Oct. 24, 2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Bennett Cyphers & Gennie Gebhart, Behind the OneWay Mirror: A Deep Dive Into the Technology
of Corporate Surveillance, EFF (Dec. 2, 2019) . . . 13
ix
Cited Authorities
Page
Bennett Cyphers & Gennie Gebhart, The Google+
Bug Is More About The Cover-Up Than The Crime,
EFF (Oct. 11, 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Bennett Cyphers, Adam Schwartz, & Nathan Sheard,
Face Recognition Isn’t Just Face Identification
and Verification: It’s Also Photo Clustering,
Race Analysis, Real-Time Tracking, and More,
EFF (Oct. 7, 2021), . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Blake Decker, Trends in Educational Attainment:
Some College, No Degree, The Texas A&M
University System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Board of Governors, U.S. Fed. Reserve, Economic
Well-Being of U.S. Households in 2022 (May 2023) . . 9
Corbin K. Barthold, Closing the Digital Frontier,
City Journal (Mar. 7, 2023) . . . . . . . . . . . . . . . . . . . . . 2
Corbin K. Barthold, Republicans Can’t Decide If
They Want Online Privacy or Not, The Daily
Beast (Sept. 5, 2023) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
David Gaudet, ID Under 35: The BARS Program
Carding Policy, BARS Program (May 3, 2016) . . . 23
Definitions, The Age Verification Providers Ass’n . . . .24
Frank Landymore, Twitter Caught Selling Data to
Government Spies While Complaining About
Surveillance, Byte (Mar. 28, 2024) . . . . . . . . . . . . . . 17
x
Cited Authorities
Page
Frequently Asked Questions: What If My Card
Is Lost Stolen Or Damaged?, Chase . . . . . . . . . . . . . 19
Gennie Gebhart, You Gave Facebook Your Number
For Security. They Used It For Ads., EFF
(Sept. 27, 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Have a Lost or Stolen Card?, Visa . . . . . . . . . . . . . . . . . 19
Jackie Snow, Why Age Verification Is So Difficult
for Websites, Wall St. J. (Feb. 27, 2022) . . . . . . . . . . 16
Jillian Andres Rothschild et al., Who Lacks ID in
America Today? An Exploration of Voter ID
Access, Barriers, and Knowledge 2, Univ. Md. Ctr.
for Democracy & Civic Engagement (Jan. 2024) . 6, 7
Jim Reed, EE Data Breach ‘Led to Stalking’, BBC
(Feb. 7, 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Jo Yurcaba, Over 200,000 Trans People Could Face
Voting Restrictions Because of State ID Laws,
NBC News, Nov. 1, 2022 . . . . . . . . . . . . . . . . . . . . . . . 8
Jumio Troubleshooting Tips, Patreon Help Center . . . 7
Kashmir Hill, Facebook Is Giving Advertisers
Access to Your Shadow Contact Information
(Sept. 26, 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
xi
Cited Authorities
Page
Kayee Hanaoka, Face Analysis Technology
Evaluation: Age Estimation and Verification,
Nat ion a l I n s t it ut e of S t a nd a r d s a nd
Technology, U.S. Department of Commerce
(May 2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Learn About ID Verification for Meta Accounts,
Meta . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Maria Bada & Jason R.C. Nurse, The Social
and Psychological Impact of Cyber-Attacks
(2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Michael Hill & Dan Swinhoe, The 15 Biggest
Data Breaches of the 21st Century, CSO
(Nov. 8, 2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Michael J. Hanmer & Samuel B. Novey, Who
Lacked Photo ID in 2020?: An Exploration of
the American National Election Studies 3, Univ.
Md. Ctr. for Democracy & Civic Engagement
(Mar. 2023) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Michelle Faverio, Key Findings About Americans
and Data Privacy (Oct. 18, 2023) . . . . . . . . . . . . . . . 14
Mike Masnick, You Can’t Wish Away the First
Amendment to Mandate Age Verification,
Techdirt (Sept. 13, 2023) . . . . . . . . . . . . . . . . . . . . . . . 2
xii
Cited Authorities
Page
Nigel Jones, 10 Reasons to Be Concerned About
Facial Recognition Technology, Priv. Compliance
Hub (Aug. 2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Online Age Verification: Balancing Privacy
an d th e Pr ot ec ti o n of Min o r s, CNIL
(Sept. 22, 2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Pa ige Col l i ng s , Deb un kin g th e My th of
“An o n y m o u s” D a t a , EF F D e e p l i n k s
(Nov. 10, 2023) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12
Position Paper: Online Age Verification and
Children’s Rights, European Digital Rights
(Oct. 4, 2023) . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 24, 25
Press Release, Identity Theft Resource Center,
ITRC 2023 Annual Data Breach Report Reveals
Record Number of Compromises; 72 Percent
Increase Over Previous High (Jan. 25, 2024) . . . . . 17
Privacy Badger, EFF . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Sara Morrison, This outed priest’s story is a
warning for everyone about the need for data
privacy laws, Vox (Jul. 21, 2021) . . . . . . . . . . . . . . . . 20
Sh iona Mcca l lu m, Payo ut fo r U ber Eats
Driver Over Face Scan Bias Case, BBC
(Mar. 25, 2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
xiii
Cited Authorities
Page
Sonia Lin, Identifying and Addressing the
Financial Needs of Immigrants, Consumer Fin.
Prot. Bureau (June 27, 2022) . . . . . . . . . . . . . . . . . . . . 9
Veera Korhonen, U.S. Family Households With
Children, By Family Type 1970-2022, Statista
(Nov. 3, 2023) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Verifying Lawful Presence, Texas Dep’t of Public
Safety . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Will Evans, Amazon’s Dark Secret: It Has Failed
to Protect Your Data, Wired (Nov. 18, 2021) . . . . . . 17
U.S. Census Bureau, CB24 - 62 , Quar terly
Residential Vacancies and Homeownership,
First Quarter 2024 (Apr. 30, 2024) . . . . . . . . . . . . . . . 9
Using An Expired Driver’s License or State
ID, ID.me Help Center . . . . . . . . . . . . . . . . . . . . . . . . . 7
Zack Whittaker, The Biggest Data Breaches in 2024:
1 billion Stolen Records and Rising, TechCrunch
(Aug. 12, 2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
1
STATEMENT OF IDENTITY AND INTEREST OF
AMICI CURIAE1
The Electronic Frontier Foundation (“EFF”) is a
non-profit civil liberties organization with more than
30,000 active donors that has worked for over 30 years
to ensure that technology supports freedom, justice, and
innovation for all people of the world. EFF is dedicated
to protecting online users’ free expression and privacy
rights and has fought for both in courts and legislatures
across the country. EFF has challenged laws that burden
all internet users’ rights by requiring online services
to verify their users’ age. See, e.g., ACLU v. Reno, 929
F. Supp. 824, 825 (E.D. Pa. 1996) (serving as a plaintiff
challenging the Communications Decency Act); ACLU v.
Reno, 31 F. Supp. 2d 473, 480 n.3 (E.D. Pa. 1999) (serving
as a plaintiff challenging the Child Online Protection Act).
EFF has defended the constitutionality of well-crafted
consumer data privacy laws. See, e.g., In re Clearview AI
Litig., 585 F. Supp. 3d 1111 (N.D. Ill. 2022); ACA Connects
v. Frey, 471 F. Supp. 3d 318 (D. Me. 2020).
The Woodhull Freedom Foundation (“Woodhull”)
is a non-profit organization that works to advance the
recognition of sexual freedom, gender equality, and
free expression. Woodhull’s name was inspired by the
Nineteenth Century suffragette and women’s rights
leader, Victoria Woodhull. The organization works to
improve the well-being, rights, and autonomy of every
1. No counsel for a party authored this brief in whole or in
part, and no such counsel or party made a monetary contribution
intended to fund the preparation or submission of this brief. No
person other than amici curiae, or their counsel, made a monetary
contribution intended to fund its preparation or submission.
2
individual through advocacy, education, and action.
Woodhull’s mission is focused on affirming sexual freedom
as a fundamental human right. Woodhull is particularly
concerned with undue burdens imposed on adults by the
government when accessing expression involving human
sexuality.
TechFreedom is a nonprofit, nonpartisan think tank
based in Washington, D.C. It is dedicated to promoting
technolog ical prog ress that improves the human
condition. It seeks to advance public policy that makes
experimentation, entrepreneurship, and investment
possible. TechFreedom opposes government efforts to
control online speech. That is precisely why TechFreedom
opposes laws that mandate online age verification or
(what is functionally the same thing) age estimation.
As TechFreedom’s experts have explained in extensive
expert commentary on, and analysis of, such laws, age
verification/estimation erodes online anonymity and,
in consequence, chills free speech and free association.
See, e.g., Mike Masnick, You Can’t Wish Away the First
Amendment to Mandate Age Verification, Techdirt
(Sept. 13, 2023), http://tinyurl.com/mtfhd9dp (discussing
the work of TechFreedom attorney Ari Cohn); Corbin
K. Barthold, Republicans Can’t Decide If They Want
Online Privacy or Not, The Daily Beast (Sept. 5, 2023),
http://tinyurl.com/2s3hr42n; Corbin K. Barthold, Closing
the Digital Frontier, City Journal (Mar. 7, 2023), http://
tinyurl.com/d5aree9m (discussing AB 2273).
SUMMARY OF ARGUMENT
Until the Fifth Circuit’s decision in this case, courts
uniformly subjected online age-verification laws like
3
HB 1181 to strict scrutiny. 2 Every prior court correctly
recognized that online identification mandates—no
matter what method they use or form they take—more
significantly burden First Amendment rights than
restrictions on in-person access to adult materials. Yet the
court below did not appreciate the immense differences
in the burdens placed on adults’ constitutional rights to
access lawful expression and wrongly applied rational
basis review under Ginsberg v. New York, 390 U.S. 629
(1968).
In doing so, the Fifth Circuit engaged in a flight of
wishful thinking, erroneously believing that developments
in age-verification technology have somehow mitigated
the burdens imposed on adults’ rights to lawfully speak
and access speech online. Yet the same constitutional
problems that this Court identified in Reno v. American
Civil Liberties Union, 521 U.S. 884 (1997) when it struck
down a federal online age-verification requirement have
metastasized. The district court’s findings confirmed
that that “[t]he risks of compelled digital verification are
just as large, if not greater” than they were before. Free
Speech Coal., Inc. v. Colmenero, 689 F. Supp. 3d 373, 400
(W.D. Tex. 2023 ). The Fifth Circuit ignored this reality.
2. See, e.g., NetChoice, LLC v. Fitch, No. 1:24-cv-170-HSOBWR, ___ F. Supp. 3d ___, 2024 WL 3276409 (S.D. Miss. July 1,
2024); Am. Booksellers Found. v. Dean, 342 F.3d 96, 99-102 (2d
Cir. 2003); PSInet v. Chapman, 362 F.3d 227, 229, 233-34 (4th Cir.
2004); ACLU v. Johnson, 194 F.3d 1149, 1152, 1155-58 (10th Cir.
1999); NetChoice, LLC v. Yost, No. 24-cv-00047, ___ F. Supp. 3d
___, 2024 WL 555904 (S.D. Ohio Feb. 12, 2024); NetChoice, LLC
v. Griffin, No. 23-CV-05105, 2023 WL 5660155 (W.D. Ark. Aug.
31, 2023).
4
Although age verification technology looks different
today than it did in 1997, those changes have not materially
diminished, much less eliminated, the burdens imposed
on adults’ First Amendment rights. Even if every
covered platform in Texas implemented today’s most
advanced age-verification technology—already a dubious
assumption that is not required under the law—HB 1181
would still unconstitutionally chill, and in some instances
entirely block, adult access to lawful online speech.
The burdens imposed by HB 1181 are numerous and
substantial, each easily triggering strict scrutiny under
this Court’s First Amendment jurisprudence. Texas’
age-verification law unconstitutionally robs people of
anonymity, discourages access by privacy- and securityminded users, and blocks some individuals entirely from
online access to adult content that remains fully protected
by the First Amendment.
This Court should thus reject the Fifth Circuit’s
decision to uphold the age-verification provisions of Texas
HB 1181, apply strict scrutiny, and strike down the law as
unconstitutional under the First Amendment.
ARGUMENT
I.
REQUIRING ADULTS TO VERIFY THEIR
AGES BEFORE SPEAKING AND ACCESSING
PROTECTED SPEECH ONLINE IMPOSES
DISTINCT HARMS THAT ARE NOT PRESENT
W H E N R E Q U I R I N G I N - P E R S O N AG E
VERIFICATION.
The Fifth Circuit lacked any basis in law or technology
to uphold HB 1181’s online age-verification mandate on
5
the grounds that it creates lesser First Amendment
burdens on adults than previous online age-verification
schemes. Online age-verification mandates like HB 1181
still impermissibly block adults from content they have
a First Amendment right to access, burden their First
Amendment right to browse the internet anonymously,
and chill data security- and privacy-minded individuals
who are justifiably leery of disclosing intensely personal
information to online services. The Fifth Circuit’s
contrary conclusion that modern online age verification is
not “categorically different” from the burdens on adults
seeking access to materials at issue in Ginsberg required
it to ignore this Court’s precedent and the district court’s
detailed factual findings. Free Speech Coal., Inc. v.
Paxton, 95 F.4th 263, 271 (5th Cir. 2024).
A.
Online Age Verification Impermissibly Blocks
Access To Protected Speech For The Millions
Of Adults Who Lack The Requisite Proof Of
Identification.
Age-verification requirements “serve as a complete
block to adults who wish to access adult material [online]
but do not” have the necessary form of identification.
PSInet v. Chapman, 362 F.3d 227, 237 (4th Cir. 2004); see
also Am. Booksellers Found. v. Dean, 342 F.3d 96, 99 (2d
Cir. 2003) (invalidating age-verification requirement that
would make “adults who do not have [the necessary form
of identification] . . . unable to access those sites”). Under
HB 1181, that could include millions of people who do not
have a driver’s license or other government-issued form
of identification.
About 15 million adult U.S. citizens do not have a
driver’s license, while about 2.6 million do not have any
6
form of government-issued photo ID. 3 Estimates show
another 21 million adult U.S. citizens do not have a
non-expired driver’s license, and over 34.5 million adult
citizens have neither a driver’s license nor a state ID card
with their current name or address.4 These numbers do
not include non-U.S. citizens who do not have current
government-issued identification, including undocumented
immigrants who cannot obtain a state ID or driver’s
license. 5
Texas has not specified what is required to comply
with HB 1181’s provision permitting age verification via
government-issued ID, leaving adults in the dark as to
what form of ID suffices to allow access to constitutionally
protected speech. For instance, most document-based
age-verification services require a user to submit a non3. Jillian Andres Rothschild et al., Who Lacks ID in America
Today? An Exploration of Voter ID Access, Barriers, and Knowledge
2, Univ. Md. Ctr. for Democracy & Civic Engagement (Jan. 2024),
https://cdce.umd.edu/sites/cdce.umd.edu/files/pubs/Voter%20ID%20
2023%20survey%20Key%20Results%20Jan%202024%20%281%29.
pdf.
4. Id. at 2, 5; Michael J. Hanmer & Samuel B. Novey, Who
Lacked Photo ID in 2020?: An Exploration of the American
National Election Studies 3, Univ. Md. Ctr. for Democracy &
Civic Engagement (Mar. 2023), https://www.voteriders.org/wpcontent/uploads/2023/04/CDCE_VoteRiders_ANES2020Report_
Spring2023.pdf.
5. See Verifying Lawful Presence, Texas Dep’t of Public
Safety, https://www.dps.texas.gov/sites/default/files/documents/
driverlicense/documents/verifyinglawfulpresence.pdf (“An applicant
for a driver license (DL) or identification card (ID) must present
proof of lawful presence in the US.”).
7
expired government-issued ID,6 but even that requirement
is not uniformly applied.7 Decisions about what form of ID
is sufficient to prove age will be left to platforms and will
surely be inconsistent and arbitrary in their application.
Reliance on government-issued ID for age-gating also
means that certain demographics will be disproportionately
burdened when trying to speak or access protected speech
online. Black Americans and Hispanic Americans are
disproportionately less likely to have current driver’s
licenses. 8 And 18% of Black adult Americans do not have
a driver’s license at all.9 Young adults are also less likely
to have the requisite ID: 41% of U.S. citizens between 18
and 24 do not have an up-to-date driver’s license.10 The
same is true for 38% of citizens between the ages of 25
6. See, e.g., Jumio Troubleshooting Tips, Patreon Help Center,
https://support.patreon.com/hc/en-us/articles/22107198811789Jumio-troubleshooting-tips (last accessed Sep. 17, 2024) (stating
“only valid, non-expired government-issued identification” will
be accepted for age verification); Learn About ID Verification for
Meta Accounts, Meta, https://www.meta.com/help/quest/articles/
accounts/privacy-information-and-settings/id-verification-metaaccounts/ (last accessed Sep, 17, 2024) (“Make sure the ID you
upload hasn’t expired.”).
7. See, e.g., Using An Expired Dr iver’s License or
State ID, ID.me Help Center, https:// help.id.me/ hc/en-us/
articles/4419146629783-Using-an-expired-driver-s-license-orstate-ID (last accessed Sep. 17, 2024) (allowing the use of expired
ID if it expired in the last 12 months).
8. Rothschild, supra note 3, at 2.
9. Id.
10. Id.
8
and 29.11 Americans with disabilities and Americans with
lower annual incomes are also less likely to have a current
driver’s license.12
Moreover, as Texas’ expert noted in the trial court,
government-ID-based age verification often requires the
user to upload a freshly taken photo to compare to the
user’s ID photo. See Colmenero, 689 F. Supp. 3d at 401. But
facial recognition technology is error-prone,13 and adults
whose current appearances do not adequately match the
photo on their ID may be rejected.14
HB 1181 allows services to verify users’ ages by other
means, but the one alternative, which relies on public
11. Id.
12. Id. at 3–4.
13. See A lex Najibi, Racial Discr imination in Face
Recognition Technology, Harvard Sci. in the News (Oct. 24, 2020),
https://sitn.hms.harvard.edu/flash/2020/racial-discrimination-inface-recognition-technology/ (also noting that a “growing body of
research exposes divergent error rates across demographic groups,
with the poorest accuracy consistently found in subjects who are
female, Black, and 18-30 years old.”); Nigel Jones, 10 Reasons to Be
Concerned About Facial Recognition Technology, Priv. Compliance
Hub (Aug. 2021), https://bit.ly/3XXLWbp; Bennett Cyphers, Adam
Schwartz, & Nathan Sheard, Face Recognition Isn’t Just Face
Identification and Verification: It’s Also Photo Clustering, Race
Analysis, Real-Time Tracking, and More, EFF (Oct. 7, 2021),
https://www.eff.org/deeplinks/2021/10/face-recognition-isnt-justface-identification-and-verification.
14. See, e.g., Jo Yurcaba, Over 200,000 Trans People Could
Face Voting Restrictions Because of State ID Laws, NBC News,
Nov. 1, 2022, https://www.nbcnews.com/nbc-out/out-politics-andpolicy/200000-trans-people-face-voting-restrictions-state-id-lawsrcna52853.
9
or private transactional data, still does not guarantee
access to those lacking a compliant form of government
ID. See HB 1181 § 129B.003(b)(2). For one, HB 1181
does not require online services to allow transactional
data as an alternative, and many services may not offer
alternative means to adults beyond supplying their ID.
Even assuming a service opts to use transactional data,
depending on the method chosen, many adults will still
not have access to the means to verify their age via this
method. For example, if a service relied on mortgage
documents, it would exclude an enormous amount of
adults, as nearly 35% of Americans do not own a home.15 If
a service used educational records, this would exclude the
more than 2.8 million Texans age 25 or older who do not
have at least a high school diploma.16 Should credit data be
used, close to 20% of U.S. households do not have a credit
card.17 Immigrants, regardless of their legal status, may
not be able to obtain credit cards, either.18
15. See U.S. Census Bureau, CB24-62, Quarterly Residential
Vacancies and Homeownership, First Quarter 2024, at 5 (Apr. 30,
2024), https://www.census.gov/housing/hvs/files/currenthvspress.
pdf.
16. See Blake Decker, Trends in Educational Attainment:
Some College, No Degree, The Texas A&M University System,
https://w w w.tamus.edu /data-science/2023/03/15/trends-ineducational-attainment-some-college-no-degree/ (last accessed
Sep. 17, 2024).
17. See Board of Governors, U.S. Fed. Reserve, Economic
Well-Being of U.S. Households in 2022, at 44 (May 2023), https://
www.federalreserve.gov/publications/files/2022-report-economicwell-being-us-households-202305.pdf (in 2022, 82% of American
households had a credit card).
18. See Sonia Lin, Identifying and Addressing the Financial
Needs of Immigrants, Consumer Fin. Prot. Bureau (June 27, 2022),
10
B. Online Age Verification Chills Adult Users From
Accessing Protected Speech By Impermissibly
Burdening The Right To Be Anonymous
Online.
Even if an adult can supply the requisite proof-of-age,
HB 1181’s age-verification requirement still impermissibly
deters adult users from speaking and accessing lawful
content by undermining anonymous internet browsing.
Anonymity is a respected, historic tradition that is “an
aspect of the freedom of speech protected by the First
Amendment.” McIntyre v. Ohio Elections Comm’n, 514
U.S. 334, 341–43 (1995). Online anonymity “promotes the
robust exchange of ideas and allows individuals to express
themselves freely[.]” In re Anonymous Online Speakers,
661 F.3d 1168, 1173 (9th Cir. 2011). Age-verification
schemes “are not only an additional hassle,” but “they
also require that website visitors forgo the anonymity
otherwise available on the internet.” Am. Booksellers
Found ., 342 F. 3d at 99. Moreover, “preser v[ing]
anonymity” may be essential for users who seek to have
“a distinct online identity,” Cyberspace, Commc’ns, Inc. v.
Engler, 55 F. Supp. 2d 737, 742 (E.D. Mich. 1999), aff’d and
remanded, 238 F.3d 420 (6th Cir. 2000), or who want to
discuss “sensitive, personal, controversial, or stigmatized
content,” ACLU v. Gonzales, 478 F. Supp. 2d 775, 806
(E.D. Pa. 2007), aff’d sub nom. ACLU v. Mukasey, 534
F.3d 181 (3d Cir. 2008). Without anonymity, “the stigma
associated with the content of [certain] sites may deter
https://www.consumerfinance.gov/about-us/blog/identifying-andaddressing-the-financial-needs-of-immigrants/ (describing how
“many financial institutions have policies and practices in place that
effectively exclude immigrants from access to bank services and to
credit due to immigration status”).
11
adults from visiting them” at all. PSINet, Inc., 362 F.3d at
236; see also NetChoice, LLC v. Griffin, No. 23-CV-05105,
2023 WL 5660155, at *17 (W.D. Ark. Aug. 31, 2023). That
chilling effect only underscores the impermissible burden
on protected anonymity that Texas’ statute imposes on
its residents.
HB 1181’s age-verification requirement will make
anonymous internet browsing on covered sites extremely
difficult and deter adult users from accessing speech
due to concerns about being identified. Unlike in-person
age-gates, the only viable way for a website to comply
with HB 1181’s mandate is to require all users to submit,
not just momentarily display, data-rich governmentissued identification or other proof-of-age. See HB 1181
§ 129B.003. And as said above, relying on facial recognition
to estimate a user’s age is error prone. As this Court has
recognized, this imposes significant burdens on adults’
access to constitutional speech and “discourage[s] users
from accessing” the online services that require that
verification. Reno, 521 U.S. at 856 (1997).
HB 1181’s requirement that covered commercial
entities delete users’ personal data does not solve this
problem. As the district court correctly noted, for users
to be certain that they can maintain their anonymity, they
must both know that their data is required to be deleted
and be confident that every website or online service with
access to that data will, in fact, delete it. Colmenero, 689
F. Supp. 3d at 400. Both premises are “dubious.” Id.19
19. See also Paige Collings, Debunking the Myth of
“Anonymous” Data, EFF Deeplinks (Nov. 10, 2023), https://www.
eff.org/deeplinks/2023/11/debunking-myth-anonymous-data.
12
A person who submits identifying information online
can never be sure whether it will be retained, or how it
might be used or disclosed. This stands in stark contrast to
Ginsberg, in which there was no record kept of a person’s
data when they sought to purchase adult materials.
Disturbingly, HB 1181 may permit the Texas
government to log and track user access without legal
process when verification is done via government-issued
ID. Colmenero, 689 F. Supp. 3d at 399–400. The law
thus “runs the risk that the state can monitor when an
adult views sexually explicit materials” and threatens
to force individuals “to divulge specific details of their
sexuality to the state government to gain access to certain
speech.” Id. at 399. In doing so, it forces adult users to
risk “relinquish[ing] their anonymity to access protected
speech, and . . . create a potentially permanent electronic
record” of the sites they choose to visit. ACLU v. Mukasey,
534 F.3d 181, 197 (3d. Cir. 2008).
HB 1181 does nothing to prohibit a host of other entities
from potentially gaining access to people’s personal
information collected to verify their ages. All online data
is transmitted through a host of intermediaries. This
means that when a commercial website shares identifying
information with its third-party age-verification vendor,
that data is not only transmitted between the website
and the vendor, but also between a series of third parties.
Those intermediaries are not required to delete a user’s
identifying data under the plain language of the law. See
Colmenero, 689 F. Supp. 3d at 400.
The third parties hosted on websites include trackers
managed by data brokers, advertisers, and other companies
13
that are constantly collecting data about a user’s browsing
activity. 20 Because many entities derive significant profits
from selling personal information collected online, an
array of actors are incentivized to collect as much data
as possible. Every mouse click and screen swipe can be
tracked and then shared with or sold to third party ad-tech
companies and the data brokers that service them. 21 None
of those third-party entities are required to delete users’
personal data under HB 1181. Many people take steps
online to protect their anonymity and avoid this pervasive
surveillance, but HB 1181 makes this even more difficult
by requiring additional and more frequent disclosure of
sensitive, identifying records. HB 1181’s failure to engage
with the realities of the online advertising industry thus
further undermines user anonymity.
C.
Online Age Verification Further Chills Adult
Users From Speaking and Accessing Protected
Speech By Putting Their Most Sensitive Data
At Risk Of Inadvertent Disclosure, Breach, Or
Attack.
Legitimate data security concerns will further deter
internet users from accessing protected First Amendment
content. “Requiring Internet users to provide . . .
personally identifiable information to access a Web site
would significantly deter many users from entering the
20. See Bennett Cyphers & Gennie Gebhart, Behind the
One-Way Mirror: A Deep Dive Into the Technology of Corporate
Surveillance, EFF (Dec. 2, 2019), https://www.eff.org/wp/behindthe-one-way-mirror.
21. See Collings, Debunking the Myth of “Anonymous” Data,
supra note 19.
14
site, because Internet users are concerned about security
on the Internet and . . . afraid of fraud and identity theft[.]”
Gonzales, 478 F. Supp. 2d at 806; see also Mukasey, 534
F.3d at 196; PSINet, Inc. v. Chapman, 167 F. Supp. 2d
878, 889 (W.D. Va. 2001), aff’d, 362 F.3d 227 (4th Cir. 2004)
(“Fear that cyber-criminals may access their [identifying
information] . . . . may chill the willingness of some adults
to participate in the ‘marketplace of ideas’ which adult
Web site operators provide.”).
The same issues motivating the anonymity concerns
described above apply equally to data privacy and security
concerns. HB 1181 will expose users’ most sensitive
information to an unquantifiable vast web of websites and
intermediaries, third-party trackers and data brokers,
and potentially the Texas government itself. This not
only gives multiple actors access to adult users’ sensitive
data, but also creates even more opportunities for the
data to leak or be breached. By forcing users to submit
to age verification, HB 1181 increases their risk of being
victims of data breaches, which are nearly unavoidable
in this digital age. And once that personal data gets into
the wrong hands, victims are vulnerable to targeted
attacks both online and off. These dangers are serious
and legitimate, and users are right to fear them. 22
22. See, e.g., Michelle Faverio, Key Findings About Americans
and Data Privacy (Oct. 18, 2023), https://www.pewresearch.org/
short-reads/2023/10/18/key-findings-about-americans-and-dataprivacy/ (76% of U.S. adults have “very little or no trust at all” that
leaders of social media companies will not sell their personal data
to others without their consent). See also Maria Bada & Jason R.C.
Nurse, The Social and Psychological Impact of Cyber-Attacks (2020),
https://arxiv.org/ftp/arxiv/papers/1909/1909.13256.pdf.
15
1.
HB 1181 Does Not Ameliorate The Data
Privacy Concerns Surrounding Online
Age-Verification Regimes.
Nothing in HB 1181 addresses the legitimate privacy
and security harms that adult internet users face in
online age-verification schemes. Ignoring the district
court’s factual findings—and applying the wrong legal
standard—the Fifth Circuit decided that HB 1181 is “more
privacy-protective than was the statute in Ginsberg” for
two reasons: (1) it allows for multiple possible methods of
age verification, “[a]t least one” of which the Fifth Circuit
assumes “will have no more impact on privacy than
will in-person age verification à la Ginsberg”; and (2) it
“punishes entities $10,000 for each instance of retention
of identifying information.” Free Speech Coal., Inc., 95
F.4th at 271 & n.17.
The Fifth Circuit was incorrect for at least three
reasons.
First, allowing for multiple age-verification methods
does not alleviate security risks when privacy experts agree
that “there is currently no solution that satisfactorily”
provides “sufficiently reliable verification, complete
coverage of the population and respect for the protection
of individuals’ data and privacy and their security.” 23
23. Online Age Verification: Balancing Privacy and the
Protection of Minors, CNIL (Sept. 22, 2022), https://www.cnil.fr/
en/online-age-verification-balancing-privacy-and-protection-minors;
see also Position Paper: Online Age Verification and Children’s
Rights, European Digital Rights (Oct. 4, 2023), https://edri.org/
wp-content/uploads/2023/10/Online-age-verification-and-childrensrights-EDRi-position-paper.pdf (“[T]here is a lack of evidence
16
Second, the Fifth Circuit speculates that the statute
will protect users’ privacy more than its predecessors by
setting statutory damages for commercial entities that
“knowingly” retain users’ identifying information. See HB
1181 § 129B.002(d). But as already explained, the district
court found the opposite and the reality of the modern
internet is that dozens of entities can collect, retain, use,
and sell this data because they are not subject to HB 1181.
See supra, Sec. I.B.
Third, HB 1181’s limited protections for retaining
users’ personal data “would not alleviate the deterrent
effect of age verification on users, because users must still
disclose the personal information to a Web site to pass
through the screen, and then rely on these entities, many
of whom are unknown . . . to comply with the confidentiality
requirement.” Gonzales, 478 F. Supp. 2d at 806; see also
Denver Area Educ. Telecomms. Consortium, Inc. v.
FCC, 518 U.S. 727, 754 (1996) (recognizing the harm that
would result should cable providers disclose a list of cable
subscribers who sought access to channels featuring
sexual materials). The district court rightfully concluded
that these dangers and the accompanying deterrent effect
were present in HB 1181. Colmenero, 689 F. Supp. 3d at
400.
that the widespread adoption of online age verification systems
as a precursor for accessing private messaging, app downloads,
or social media will keep children safe.”); Jackie Snow, Why Age
Verification Is So Difficult for Websites, Wall St. J. (Feb. 27, 2022),
https://www.wsj.com/articles/why-age-verification-is-difficult-forwebsites-11645829728.
17
2.
HB 1181’s Data Collection Regime Will
Inevitably Be Plagued By The Unavoidable
Inadvertent Disclosure Of Data.
In this increasingly digital world, we often resign
ourselves to the unfortunate fact that companies routinely
amass our sensitive personal information. But we hope,
or even trust, that these services will make every effort
to secure and safeguard our data. Nevertheless, in data
breach after data breach, even the best-intentioned
companies fall victim to inadvertent disclosures. 24
Data breaches are an endemic and ever-increasing
part of modern life. A record 3,205 data breaches occurred
in 2023, up 78% from the year prior, and far exceeding
the previous record of 1,860 breaches in 2021. 25 These
24. See, e.g., Frank Landymore, Twitter Caught Selling Data
to Government Spies While Complaining About Surveillance, Byte
(Mar. 28, 2024), https://futurism.com/the-byte/twitter-selling-datagovernment; Will Evans, Amazon’s Dark Secret: It Has Failed
to Protect Your Data, Wired (Nov. 18, 2021), https://www.wired.
com/story/amazon-failed-to-protect-your-data-investigation/;
Gennie Gebhart, You Gave Facebook Your Number For Security.
They Used It For Ads., EFF (Sept. 27, 2018), https://www.eff.org/
deeplinks/2018/09/you-gave-facebook-your-number-security-theyused-it-ads; Bennett Cyphers & Gennie Gebhart, The Google+
Bug Is More About The Cover-Up Than The Crime, EFF (Oct.
11, 2018), https://www.eff.org/deeplinks/2018/10/google-bug-moreabout-cover-crime; Kashmir Hill, Facebook Is Giving Advertisers
Access to Your Shadow Contact Information (Sept. 26, 2018),
https://gizmodo.com/facebook-is-giving-advertisers-access-to-yourshadow-co-1828476051.
25. Press Release, Identity Theft Resource Center, ITRC
2023 Annual Data Breach Report Reveals Record Number of
Compromises; 72 Percent Increase Over Previous High (Jan.
18
breaches affected over 350 million people—more than the
entire population of the United States—and compromised
nearly 11% of all publicly traded companies. 26 Those
numbers continue to rise, and some of the most significant
data breaches to date have occurred in 2024. In July,
AT&T revealed that criminals stole phone numbers and
call records of around 110 million people—“nearly all”
of its customers. 27 Meanwhile, other bad actors stole an
alleged 560 million records from Ticketmaster, as well
as the medical and billing information of a “substantial
proportion” of people in the U.S. from health tech giant
Change Healthcare. 28
The likelihood a user’s information will be compromised
in a breach also increases every time that information is
transmitted to third party online actors. The AT&T and
Ticketmaster breaches, for example, occurred because
both companies shared information with a third-party
25, 2024), https://www.idtheftcenter.org/post/2023-annual-databreach-report-reveals-record-number-of-compromises-72-percentincrease-over-previous-high; see also Michael Hill & Dan Swinhoe,
The 15 Biggest Data Breaches of the 21st Century, CSO (Nov. 8,
2022), https://www.csoonline.com/article/2130877/the-biggest-databreaches-of-the-21st-century.html.
26. ITRC, supra note 25.; see also id. (“69% of general
consumers have been victims of an identity crime more than once”).
27. Zack Whittaker, The Biggest Data Breaches in 2024: 1
billion Stolen Records and Rising, TechCrunch (Aug. 12, 2024),
https://techcrunch.com/2024/08/12/2024-in-data-breaches-1billion-stolen-records-and-rising/.
28. Id.
19
cloud data vendor that was breached. 29 Under HB 1181,
regulated online services will have to contract with thirdparty age-verification services, creating similar risks.
Further compounding the issue, the personal data
disclosed under HB 1181 is extremely sensitive and often
immutable. 30 The disclosure of personal information
contained in a government-issued ID is more problematic
because most people cannot easily change their biographic
information or their home address. Contrast this with
information that is intended to be more frequently given
to third parties, such as credit card information. As
an important security measure, credit card companies
typically offer a quick and straightforward process for
changing information, such as the card number, in the
event of identity theft or a data breach. 31
HB 1181 further amplifies the security risks
by potentially linking personal information to the
consumption of sensitive content that can “reveal [a
user’s] intimate desires and preferences.” Colmenero,
689 F. Supp. 3d at 399. This makes the data “particularly
valuable because users may be more willing to pay to
29. Id.
30. Driver Privacy Protection Act, 18 U.S.C. §§ 2721 et seq.
31. See, e.g., Have a Lost or Stolen Card?, Visa, https://usa.
visa.com/support/consumer/lost-stolen-card.html (last accessed
Sep. 17, 2024); Frequently Asked Questions: What If My Card
Is Lost Stolen Or Damaged?, Chase, https://www.chase.com/
digital/digital-payments/additional-wallets/faqs/lost-or-stolen
(last accessed Sep. 17, 2024).
20
keep that information private.” Id. at 400. 32 These risks
will justifiably deter security-minded adult internet
users from accessing lawful speech online. And HB 1181
will undermine legitimate efforts by Texas residents to
secure their personal information online through tools
that block digital online trackers or otherwise increase
their privacy. 33
II. ALTHOUGH AGE VERIFICATION TECHNOLOGY
HAS EVOLVED, NONE OF THOSE CHANGES
HAVE SUBSTANTIALLY LESSENED THE
HARMS IMPOSED BY HB 1181 ON ADULTS
WHO WISH TO ACCESS LAWFUL SPEECH
ONLINE.
In upholding HB 1181, the Fifth Circuit assumed that
changes in technology have made online age verification
meaningfully less burdensome and harmful for adults
than it was in decades earlier. The court provided no
explanation or evidence to support this assumption, and
the factual record led the district court to the opposite
conclusion. Colmenero, 689 F. Supp. 3d at 400. This
32. See, e.g., Jim Reed, EE Data Breach ‘Led to Stalking’, BBC
(Feb. 7, 2019), https://www.bbc.com/news/technology-46896329; Lee
Brown, Russian Hackers Post Nude Photos of US Cancer Patients
to Dark Web in Sick Extortion Plot, N.Y. Post (Mar. 8, 2023), https://
nypost.com/2023/03/08/russian-hackers-post-nude-photos-of-uscancer-patients-to-dark-web/; Sara Morrison, This outed priest’s
story is a warning for everyone about the need for data privacy
laws, Vox (Jul. 21, 2021), https://www.vox.com/recode/22587248/
grindr-app-location-data-outed-priest-jeffrey-burrill-pillar-dataharvesting.
33. See, e.g., Privacy Badger, EFF, https://privacybadger.
org/.
21
erroneous assumption pervades the Fifth Circuit’s legal
analysis.
Critically, the Fifth Circuit relied on this assumption
to justify disregarding the constitutionally significant
burdens created by HB 1181’s broad online ageverification mandate described in Section I above. Instead,
the court subjected HB 1181 to the much less invasive
in-person requirements contemplated by the law at issue
in Ginsberg. Paxton, 95 F.4th at 271-72. Although ageverification technology has changed over the last few
decades, none of those changes have substantially lessened
the harms imposed on adults who wish to access lawful
speech online.
A.
Certain Burdens On Adults’ First Amendment
Rights Are Inherent To Broad Age-Verification
Mandates And Are Not Eliminated By New
Technology.
In addition to imposing the specific harms described
in the previous section, online age-verification mandates,
like HB 1181, carry with them broad, inherent burdens
on adults’ rights to access lawful speech online. These
burdens w ill not and cannot be remedied by new
developments in age-verification technology.
Laws that seek to protect minors but affect internet
access in all households, even those without minors, are
inherently overinclusive.
As the district court examining the evidentiary record
found, online age verification is imposed on many, many
more users than an in-person ID check. See Colmenero,
22
689 F. Supp. 3d at 397. This is true, of course, no matter
what method of age verification is used or how advanced
the technology purports to be. Online age-verification
laws are “dramatically different” from statutes that apply
“only to personally directed communication between an
adult and a person that the adult knows or should know
is a minor.” Am. Booksellers Found. for Free Expression
v. Sullivan, 799 F. Supp. 2d 1078, 1082 (D. Alaska 2011).
And because of the sheer scale of the internet, regulations
affecting online content sweep in millions of people who
are obviously adults, not just those who visit physical
bookstores or other places to access adult materials, and
not just those who might perhaps be 17. Age-verification
laws reach into fully every U.S. adult household, despite
most not having any children. 34
A lthough other laws that prohibit the sale of
adult content to minors result in age verification via a
government ID or other proof-of-age in physical spaces,
there are practical differences that make those disclosures
less burdensome or even nonexistent. Most tellingly, an
in-person interaction between a merchant and an adult is
often enough to verify that the individual is older than 17
and can legally purchase the materials. After all, there are
usually distinguishing physical differences between young
34. Approximately 60% of U.S. family households do not include
children under 18, and this percentage does not even account for
the number of non-family households without children under 18.
See Veera Korhonen, U.S. Family Households With Children, By
Family Type 1970-2022, Statista (Nov. 3, 2023), https://www.statista.
com/statistics/242074/percentages-of-us-family-households-withchildren-by-type/.
23
adults and those older than 35.35 An older adult who forgets
their ID at home or lacks an up-to-date government ID
is not likely to face difficulty in obtaining material in a
physical store because a visual check by a merchant can
confirm they are an adult. Yet there is no analog to such
ephemeral age checks online, which inherently require
the disclosure and collection of personal information to
verify an internet user’s age.
Additionally, online age verification is likely to notably
reduce adult users’ willingness to consume or create
protected content on a site. 36 Internet users are highly
sensitive to website access barriers, and age verification
adds a significant new step to a user’s visit, in which they
must submit government-issued ID or other identifying
information, along with, in some instances, a current
photo.
B. The Burdens Imposed By HB 1181 Are Not
Resolved By Newer Forms Of Age-Gating
Technology, Such As Age Estimation.
Although there are new forms of age-gating technology,
those products have not substantially lessened the burdens
35. See David Gaudet, ID Under 35: The BARS Program
Carding Policy, BARS Program (May 3, 2016), https://w w w.
barsprogram.com/blog/?12310/id-under-35-the-bars-programcarding-policy.
36. See Will Co. v. Lee, 47 F.4th 917, 924–25 (9th Cir. 2022)
(“Research shows that sites lose up to 10% of potential visitors for
every additional second a site takes to load, and that 53% of visitors
will simply navigate away from a page that takes longer than three
seconds to load.” (footnote omitted)).
24
on adults’ rights to speak and access lawful speech online.
Some newer services have begun to offer “age estimation,”
an alternative to document-based age verification that
predicts a user’s age based on AI analysis of their
biometric features or data about their online interactions.37
But age estimation is no silver bullet.
To start, it does not appear that services could rely on
age estimation to comply with HB 1181. HB 1181 requires
“age verification,” which is a different technological
method from “age estimation.” The terms are not
used interchangeably by the industry. 38 The statutory
language also does not reference biometric or taskbased information, instead requiring “age verification”
via “government-issued identification” or “transactional
data,” defined in terms of official “records” or information
that “documents” an “exchange, agreement, or transfer.”
§§ 129B.001(7), 003(b). Further, because ser vices
are not required to use other methods to verify ages
besides relying on government-issued ID and HB 1181
references “government-issued identification,” the
most straightforward and least legally risky method of
compliance will be government-ID-based age verification.
On their merits, age estimation systems suffer from
accuracy issues. Because this method is inherently based
37. See Position Paper: Online Age Verification and
Children’s Rights, European Digital Rights (Oct. 4, 2023), at
13, https://edri.org/wp-content/uploads/2023/10/Online-ageverification-and-childrens-rights-EDRi-position-paper.pdf.
38. See e.g., Definitions, The Age Verification Providers
Ass’n, https://avpassociation.com/definitions/ (last accessed Sep.
8, 2024).
25
on predictions, not certainty, it often has a margin of
error of several years, even when working properly. 39
Recent studies have also found that biometric-based
identification especially struggles with accuracy for people
of color and for women.40 Task-based age estimation, in
which age is predicted based on each user completing
a certain movement or task, similarly has the potential
to discriminate against people with disabilities.41 These
forms of age estimation therefore create an unacceptable
risk that adults will be wrongly and discriminatorily
blocked from speech they legally can access because of
their demographic or health characteristics.
Moreover, age estimation shares many of the same
burdens as age verification. It still requires websites to
erect access barriers that apply broadly to millions of
adults, as described above. See supra, Sec.II.A.
Nor does age estimation solve for the anonymity or
security burdens that similarly plague document-based
age verification. Although age estimation does not require
39. See id.
40. See Kayee Hanaoka, Face Analysis Technology
Evaluation: Age Estimation and Verification, National Institute
of Standards and Technology, U.S. Department of Commerce (May
2024), https://nvlpubs.nist.gov/nistpubs/ir/2024/NIST.IR.8525.
pdf; Position Paper: Online Age Verification and Children’s
Rights, supra note 29, at 13; Shiona Mccallum, Payout for Uber
Eats Driver Over Face Scan Bias Case, BBC (Mar. 25, 2024),
https://www.bbc.com/news/technology-68655429 (last accessed
Sep. 8, 2024).
41. See Position Paper: Online Age Verification and
Children’s Rights, supra note 29, at 21, 23.
26
users to upload sensitive documents like a driver’s license,
it still forces adult users to share personally identifying
information, such as a scan of a user’s face or access to a
user’s email account.42 Like identifying documents, this
information can be deeply sensitive and revealing. Facial
scan information, for example, is unique to each person
but largely immutable. And because age estimation relies
on having enough data to make predictions, it exacerbates
the issues of mass data collection online. As one European
study cautioned, requiring a biometric age estimation
check every time a user logs onto a site “would incentivise
the routine processing of sensitive data as a result, and
might even incentivise the creation of underlying biometric
databases of children – posing a clearly unacceptable
risk.”43 Thus for many of the same reasons detailed above,
internet users who are concerned about maintaining their
right to anonymity and protecting their online security
will be rightfully reluctant to share such information and
will therefore be chilled from accessing lawful speech
online.
C.
HB 1181’s Statutor y Scheme Otherwise
Exacerbates The Harms Of Online Age
Verification.
In addition to the burdens described throughout this
brief, HB 1181’s statutory scheme itself imposes additional
harms on adults who wish to lawfully speak or access
speech online.
Critically, HB 1181 denies unburdened access to
42. See id., at 13.
43. Id.
27
websites in whole, rather than, per Ginsberg, individual
offending materials within that site. It applies to the
contents of any site Texas deems to be at least “one-third”
composed of “sexual material harmful to minors,” which
will surely encompass numerous commonly used popular,
general-purpose websites. 44 HB 1181 § 129B.002(a);
Colmenero, 689 F. Supp. 3d at 394–95. HB 1181’s
requirements are akin to requiring ID every time a user
logs into a streaming service like Netflix, regardless of
whether they want to watch a G- or R-rated movie. See
Colmenero, 689 F. Supp. 3d at 392, n.5.
Yet despite its breadth, HB 1181’s age-verification
mandate does not require standardization across covered
platforms, leading to user inconvenience and uncertainty:
adults might be unduly blocked from some websites using
certain age-verification methods, but not from others,
using different methods. As a result, adults must navigate
a maze of different rules and policies to access lawful
speech online.
44. The range of protected content that will be age-gated
under the law is vague and potentially boundless. As the district
court explained, the law “refers to ‘minors’ as a broad category, but
material that is patently offensive to young minors is not necessarily
offensive to 17-year-olds. . . The result of this language as applied
to online webpages is that constitutionally protected speech will be
chilled. A website dedicated to sex education for high school seniors,
for example, may have to implement age verification measures
because that material is ‘patently offensive’ to young minors and
lacks educational value for young minors.” Colmenero, 689 F. Supp.
3d at 394.
28
III. HB 1181 FAILS STRICT SCRUTINY.
The burdens HB 1181 imposes on adult’s First
Amendment rights to speak and access lawful speech
online require that the statute be subject to strict
scrutiny. The previous sections demonstrate that the more
permissive Ginsberg standard, applicable to restrictions
only on minors’ access to materials harmful to minors,
should not apply here because HB 1181 “‘effectively
suppresses a large amount of speech that adults have
a constitutional right to receive and to address to one
another.” Ashcroft v. ACLU, 542 U.S. 656, 665 (2004)
(quoting Reno, 521 U.S. at 874).
Speech involving human sexuality is presumed to be
protected by the First Amendment. Reno, 521 U.S. 844
(indecent materials online); Sable Communications v.
FCC, 492 U.S. 115 (1989) (phone sex), FCC v. Pacifica,
438 U.S. 726 (1978) (indecent communications); Ashcroft,
535 U.S. 564 (materials harmful to minors). This Court
has reaffirmed the constitutional protection afforded to
non-obscene, sexually explicit materials in numerous
contexts.45
45. See FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990)
(adult entertainment licensing scheme); Barnes v. Glen Theatre,
Inc., 501 U.S. 560 (1991) (nude dancing); City of Erie v. Pap’s A.M.,
529 U.S. 277 (2000) (same); Young v. Am. Mini Theatres, Inc., 427
U.S. 50 (1976) (adult entertainment zoning ordinance); City of Los
Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002) (same); Roth
v. United States, 354 U.S. 476, 487 (1957); Stanley v. Georgia, 394
U.S. 557 (1969) (recognizing the First Amendment right to possess
obscene material in one’s home).
29
Non-obscene sexual content that may be indecent or
offensive to some nonetheless remains fully constitutionally
protected. “In evaluating the free speech rights of adults,
we have made it perfectly clear that ‘[s]exual expression
which is indecent but not obscene is protected by the First
Amendment.’” Reno, 521 U.S. at 874–75 (quoting Sable,
492 U.S. at 126). “[W]here obscenity is not involved, we
have consistently held that the fact that protected speech
may be offensive to some does not justify its suppression.”
Carey v. Population Servs. Int’l, 431 U.S. 678, 701 (1977).
In Pacifica, this Court admonished that “the fact that
society may find speech offensive is not a sufficient reason
for suppressing it.” 438 U.S. at 745.
As explained above, HB 1181’s age-verification regime
unconstitutionally burdens adults’ access to a wide range
of protected speech and forums in which to speak. The
law’s age-verification regime applies to any website of
which more than “one-third” of its content includes adult
content. HB 1181 § 129B.002(a). The statute thus creates
a classic content-based distinction that is subject to strict
scrutiny.
Strict scrutiny requires Texas to identify a compelling
interest and show that HB 1181 is narrowly tailored to
advance that interest. Brown v. Ent. Merchants Ass’n,
564 U.S. 786, 799 (2011). Narrow tailoring under strict
scrutiny requires that the law directly advance the
government interest, that it can be neither overinclusive
nor underinclusive, and that it is the least speechrestrictive means to advance the interest. U.S. v. Playboy
Entertainment Group, Inc., 529 U.S. 803, 813 (2000). It is
thus “unacceptable if less restrictive alternatives would be
at least as effective in achieving the legitimate purposes
that the statute was enacted to serve.’” Id.
30
When HB 1181 is subjected to strict scrutiny, it fails.
Texas has a legitimate interest in protecting children
from harmful materials. However, its efforts to accomplish
that goal cannot be at the expense of the rights of adults
to access constitutionally protected speech. As this
Court explained, the Government may not “reduce[] the
adult population . . . to . . . only what is fit for children.’”
Denver Area Educ. Telecomms. Consortium, 518 U.S. at
759 (quoting Butler v. Michigan, 352 U.S. 380, 383 (1957)
). “‘[R]egardless of the strength of the government’s
interest’ in protecting children, ‘[t]he level of discourse
reaching a mailbox simply cannot be limited to that which
would be suitable for a sandbox.’” Reno, 521 U.S. at 875
(quoting Bolger v. Youngs Drug Products Corp., 463 U.S.
60, 74–75 (1983) ). The burdens placed on adult access
to constitutionally protected online speech by Texas is
harmful to the marketplace of ideas. As it did in Reno, this
Court should “presume that governmental regulation of
the content of speech is more likely to interfere with the
free exchange of ideas than to encourage it.” Id. at 885.
In contrast to HB 1181’s broad content-restricting
ban, Texas had many less-speech-restrictive and more
effective alternatives to restrict minors’ access to adult
sexual materials. Colmenero, 689 F. Supp. 3d at 400–
404; see also Reno, 521 U.S. at 879 (finding no narrow
tailoring where the government failed to explain why a
less restrictive alternative would not be as effective). As
other courts have found, these less restrictive alternatives
include parental control tools and systems for making
affirmative requests to companies. See NetChoice, LLC
v. Fitch, No. 1:24-cv-170-HSO-BWR, ___ F. Supp. 3d ___,
2024 WL 3276409, at *12 (S.D. Miss. July 1, 2024) (“[T]
31
he Attorney General has not shown that the alternative
suggested by NetChoice, a regime of providing parents
additional information or mechanisms needed to engage
in active supervision over children’s internet access would
be insufficient to secure the State’s objective of protecting
children.”); Free Speech Coalition, Inc. v. Rokita, No.
1:24-cv-00980-RLY-MG, ___ F. Supp. 3d ___, 2024 WL
3228197, at *17-18 (S.D. Ind. June 28, 2024) (finding that
“[t]here are two possible narrower, effective alternatives
to restrict minors’ access to harmful materials” and
Indiana “chose an ineffective and more broad method
to protect minors from harmful materials than other
alternatives”); Gonzales, 478 F. Supp. 2d at 813–14 (finding
that there exist less restrictive alternatives to punishing
sites for failure to age gate); see also Griffin, 2023 WL
5660155 at *21 (“Age-verification requirements are more
restrictive than policies enabling or encouraging users (or
their parents) to control their own access to information,
whether through user-installed devices and filters or
affirmative requests to third-party companies.”); id. at
*6–7 (describing existing parental controls available to
parents, including, the ability to use wireless routers “to
block certain websites or online services that they deem
inappropriate, set individualized content filters for their
children, and monitor the websites their children visit
and the services they use,” and the ability to use parental
controls on internet browsers “to control which websites
their children can access”).
Moreover, HB 1181’s content restriction would not be
narrowly tailored even if it applied only to websites that
exclusively host adult content. Regardless of whether
Texas believes sexual materials “add[] anything of value
to society,” they are “as much entitled to the protection of
32
free speech as the best of literature.” Interactive Digit.
Software Ass’n v. St. Louis Cnty., 329 F.3d 954, 958
(8th Cir. 2003) (quoting Winters v. New York, 333 U.S.
507, 510 (1948)); see also Brown, 564 U.S. at 790 (noting
that First Amendment principles apply to new forms of
communication regardless of their esthetic and moral
value).
Other courts, applying this Court’s precedents, have
consistently struck down age-verification laws because
they failed strict scrutiny. See PSINet Inc. v. Chapman,
362 F.3d 227, 235 (4th Cir. 2004) (noting that courts have
“consistently struck down as unconstitutional” regulations
that suppress a large amount of speech that adults
have a constitutional right to receive); Am. Booksellers
Found. for Free Expression, 799 F. Supp. 2d at 1082–83
(striking down an age-verification statute that could have
a “chilling effect on protected speech”); Dean, 342 F.3d
at 101 (“[R]estrictions aimed at minors may not limit
non-obscene expression among adults.”); Shipley, Inc. v.
Long, 454 F. Supp. 2d 819, 831 (E.D. Ark. 2004) (holding
unconstitutional a prohibition on the display of material
harmful to minors because it would burden adults’ and
older minors’ access to non-obscene materials); see also
Fitch, 2024 WL 3276409, at *12; Rokita, 2024 WL 3228197,
at *18; Griffin, 2023 WL 5660155, at *17.
33
CONCLUSION
For the reasons stated above, this Court should
overturn the Fifth Circuit’s decision below.
Respectfully submitted,
Lawrence G. Walters
Walters Law Group
195 W. Pine Avenue
Longwood, FL 32750
Corey D. Silverstein
Kevin S. Toll
Silverstein Legal
30150 Telegraph Road,
Suite 444
Bingham Farms, MI 48025
Attorneys for Amicus
Curiae Woodhull
Freedom Foundation
A aron Mackey
Counsel of Record
Elizabeth Femia
David Greene
Electronic Frontier
Foundation
815 Eddy Street
San Francisco, CA 94109
(415) 436-9333
amackey@eff.org
Counsel for Amici Curiae
Corbin K. Barthold
A ri Cohn
Berin Szóka
TechFreedom
1500 K Street NW, 2nd
Floor
Washington, DC 20005
Attorneys for Amicus
Curiae TechFreedom
Dated: September 23, 2024
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.