Despite a long history of courts ruling that government efforts to regulate speech online harm all internet users and interfere with their First Amendment rights, state and federal lawmakers continue to pass laws that do just that. Three separate rulings issued in the past week show that the results of these latest efforts are as predictable as they are avoidable: courts will strike down these laws.
The question is, why aren’t lawmakers listening? Instead of focusing on passing consumer privacy legislation that attacks the harmful business practices of the most dominant online services, lawmakers are seeking to censor the internet or block young people from it. Instead of passing laws that increase competition and help usher in a new era of online services and interoperability, lawmakers are trying to force social media platforms to host specific viewpoints.
Recent decisions by the Supreme Court and two federal district courts underscore how these laws, in addition to being unconstitutional, are also bad policy. Whatever the good intentions of lawmakers, laws that censor the internet directly harm people’s ability to speak online, access others’ speech, remain anonymous, and preserve their privacy.
The consistent rulings by these courts should send a clear message to lawmakers considering internet legislation: it’s time to focus on advancing legislation that solves some of the most pressing privacy and competition problems online without censoring users’ speech. Those proposals have the benefit of both being constitutional and addressing many of the harms people—both adults and young people—experience online. Let’s take a look at each of these cases.
Court Puts Mississippi Law on Hold, Highlights KOSA’s Unconstitutionality
A federal court on Monday blocked Mississippi from enforcing its children’s online safety law (House Bill 1126), ruling that it violates the First Amendment rights of adults and young people. The law requires social media services to verify the ages of all users, to obtain parental consent for any minor users, and to block minor users from being exposed to “harmful” material.
EFF filed a friend-of-the-court brief in the case that highlighted the many ways in which the law burdened adults’ ability to access lawful speech online, chilled anonymity online, and threatened their data privacy.
The district court agreed with EFF, ruling that “the Act requires all users (both adults and minors) to verify their ages before creating an account to access a broad range of protected speech on a broad range of covered websites. This burdens adults’ First Amendment rights.”
The court’s ruling also demonstrates the peril Congress faces should it advance the Kids Online Safety Act. Both chambers have drafted slightly different versions of KOSA, but the core provision of both bills would harm internet users—especially young people—by censoring a large swath of protected speech online.
EFF has previously explained in detail why KOSA will block everyone’s ability to access information online in ways that violate the First Amendment. The Mississippi court’s ruling earlier this week confirms that KOSA is unconstitutional, as the law contains similar problematic provisions.
Both Mississippi HB 1126 and KOSA include a provision that imposes liability on social media services that fail to “prevent and mitigate” exposing young people to several categories of content that the measures deem to be harmful. And both bills include a carveout that says a service will not face liability if a young person independently finds the material or searches for it.
The district court ruled that these “monitoring-and-censorship requirements” violated the First Amendment. First, the court found that the provision created restrictions on what content could be accessed online and thus triggered strict review under the First Amendment. Next, the court found that the provision fell far short of complying with the First Amendment because it doesn’t effectively prevent the harms to minors that Mississippi claims justify the law.
In short, if lawmakers believe they have a compelling interest in blocking certain content from minors online, the carveout provisions of KOSA and HB 1126 undercut their claims that such information is inherently harmful to minors. The First Amendment prevents lawmakers from engaging in such half-measures precisely because those proposals chill vast amounts of lawful speech while being inherently ineffective at addressing the harms that animated enacting them in the first place.
Another aspect of the court’s decision putting HB 1126 on hold should also serve as a warning to KOSA’s proponents. The Mississippi court ruled that the state law also ran afoul of the First Amendment because it treated online services differently based on the type of content they host.
HB 1126 broadly regulates social media services that allow users to create and post content and interact with others. But the law exempts other online services that “provide a user with access to news, sports, commerce, online video games or content primarily generated or selected by the digital service provider.”
The district court ruled that HB 1126’s exemption of certain online services based on the content subjected the law to the First Amendment’s strict requirements when lawmakers seek to regulate the content of lawful speech.
“The facial distinction in H.B. 1126 based on the message the digital service provider conveys, or the more subtle content-based restriction based upon the speech’s function or purpose, makes the Act content-based, and therefore subject to strict scrutiny,” the court wrote.
KOSA contains a similar set of carveouts in its definitions. The bill would apply to online services that are likely to be used by minors but exempts news and sports websites and related services. KOSA will thus similarly be subjected to strict review under the First Amendment and, as EFF has said repeatedly, will likely fall far short of meeting the Constitution’s requirements.
Indiana Court Reaffirms That Age-Verification Schemes Violate the First Amendment
An Indiana federal court’s decision to block the state’s age-verification law highlights the consensus that such measures violate the First Amendment because they harm adults’ ability to access protected speech and burden their rights to anonymity and privacy. The decision casts significant doubt on similar bills being contemplated across the country, including in California.
The Indiana law requires an online service in which more than one-third of the content hosted includes adult sexual materials to verify the ages of its users and block young people from that material. The age-verification mandate required services to obtain government-issued identification from users or to have users submit to invasive methods to verify their age, such as providing personal information or facial recognition.
The court ruled that Indiana’s law was unconstitutional because it placed immense burdens on adults’ rights to access “a significant amount of speech protected by the First Amendment.” In particular, the law would require general-purpose websites that serve a variety of users and host a variety of content to implement age verification for all users if a third of the content featured sexual material.
As a result, users who visited that site but never accessed the sexual content would still have to verify their age. “Indeed, the Act imposes burdens on adults accessing constitutionally protected speech even when the majority of a website contains entirely acceptable, and constitutionally protected, material,” the court wrote.
Conversely, young people who have a First Amendment right to access the majority of non-sexual content on that site would not be able to.
The Indiana court’s decision is in keeping with more than two decades’ worth of rulings by the Supreme Court and lower courts that have found age-verification laws to be unconstitutional. What’s remarkable is that, despite this clearly developed law, states across the country continue to try to pass these laws.
Lawmakers should heed these courts’ consistent message and work on finding other ways to address harms to children online, such as by passing comprehensive data privacy laws, rather than continuing to pass laws that courts will strike down.
Supreme Court Confirms that Laws Targeting Content Moderation Will Face First Amendment Challenges, But Data Privacy and Competition Laws are Fair Game
The Supreme Court’s ruling this week in a pair of cases challenging states’ online content moderation laws should also serve as a wakeup call to lawmakers. If a state or Congress wants to pass a law that requires or coerces an online service to modify how it treats users’ speech, it will face an uphill battle to being constitutional.
Although EFF plans to publish an in-depth analysis of the decision soon, the court’s decision confirms what EFF has been saying for years: the First Amendment limits lawmakers ability to dictate what type of content online services host. And although platforms often make bad or inconsistent content moderation decisions, users are best served when private services—not the government—make those choices.
Importantly, the Supreme Court also confirmed something else EFF has long said: the First Amendment is not a barrier to lawmakers enacting measures that target dominant social media companies’ invasive privacy practices or their anti-competitive behavior.
Comprehensive consumer data privacy laws that protect all internet users are both much needed and can be passed consistent with the First Amendment.
The same is true for competition laws. Lawmakers can pass measures that instill greater competition for users and end the current companies’ dominance. Also, laws could allow for the development and growth of a variety of third-party services that can interoperate with major social media companies and provide options for users that the major companies do not.
The Supreme Court’s decision thus reinforces that lawmakers have many paths to addressing many of the harms occurring online, and that they can do so without violating the First Amendment. EFF hopes that lawmakers will take up this opportunity, and we continue to be ready to help lawmakers pass pro-competition and consumer data privacy laws.
