Much of the field of Internet Law centers on the difficulty of how to apply offline law to online conduct. Because online activity is inherently communicative, the regulation of online expression is often complicated by the First Amendment. But this is apparently not a problem that troubles the Fifth Circuit. In Free Speech Coalition v. Paxton, the circuit court upheld a Texas law requiring pornographic websites to verify the age of their visitors—in the process dismissing two Supreme Court decisions finding such laws unconstitutional and consciously ignoring the difference between the offline world and cyberspace.

Texas H.B.1181 requires any commercial site that publishes sexual material to verify the age of any visitor to the site, in order to block distribution of this content to minors. Failure to do so subjects the site to suit by a viewing minor’s parent or guardian. The act represents one of several statutes adopted in the past two years to protect children from potentially harmful online content.

Most of these age verification statutes have been enjoined by courts, including H.B.1181 by a Texas district court. The reason why is obvious to most Internet Law scholars: over two decades ago, at the dawn of the Internet age, a pair of Supreme Court cases, Reno v. ACLU and Ashcroft v. ACLU, struck down similar efforts by Congress to mandate age verification by pornographic websites. Although minors can generally be prohibited from accessing sexual material, adults have a First Amendment right to consume non-obscene pornography. Because age verification threatened to chill speech for adults, the Court applied strict scrutiny, and struck down both statutes because it found age verification was not the least restrictive means of limiting minors’ access without harming adults’ speech rights.

But the Fifth Circuit disagreed. Drawing on Ginsberg v. New York, a 1968 decision upholding a criminal conviction for selling pornographic magazines to minors, the court determined that the appropriate standard of review was rational basis rather than strict scrutiny. This is significant, as the government need only show that the law is rationally related to a legitimate government interest—here, protecting minors. When confronted with Reno and Ashcroft, the Fifth Circuit saw no distinction, waving away those decisions with the novel theory that Ashcroft did not rule that strict scrutiny was appropriate, but simply assumed it based on the consent of the parties.

This conclusion—that the Supreme Court struck down two federal statutes governing a key social issue because the parties assumed the wrong standard of review, and a quarter-century of Internet law built on these decisions never caught the error—is laughable, as Judge Higginbotham (respectfully) argues in dissent. Ginsberg held only that minors do not have a First Amendment right to view sexual material. That’s not in doubt. The question is whether, and how much, enforcement of a ban on minors infringes on the First Amendment rights of adults. 

The circuit court pretends there is no difference between the offline and online worlds. But as Larry Lessig famously explained, when it comes to age authentication, these differences are profound. Age is largely self-authenticating offline—a store clerk can usually visually appraise whether a customer is old enough to purchase age-restricted material. But online, servers send and receive traffic without distinguishing whether the person behind the screen is a minor or an adult. So online age verification requires all users to submit identification—which as Ashcroft notes, can have a significant chilling effect on protected speech. Adults who have the right to view such material may be interested in doing so anonymously but be deterred by having to provide identification, either because they do not wish to identify themselves in ways that reveal their sexual preferences, or because they fear identity theft. 

Free Speech Coalition v. Paxton is the latest in a series of Fifth Circuit decisions that intentionally challenge the application of settled First Amendment principles to online conduct. The NetChoice v.Paxton case, regulating social media platforms’ right of editorial control, is already under review at the Supreme Court, and it’s a good bet this case will follow. Legislators are not wrong that minors’ access to online pornography is a significant concern. But appellate judges cannot solve social problems by ignoring Supreme Court precedent with which they disagree. The Ninth Circuit gained a poor reputation for doing so regarding death penalty cases toward the end of the twentieth century, and the Fifth Circuit sadly seems to be following in its footsteps today. Both threaten to undermine basic rule of law principles in pursuit of their preferred policy objectives. Once upon a time, conservatives decried such shenanigans as judicial activism. 

Learn more: What Do Americans Think About TikTok? | Concern for Kids Prompts Problematic Internet Regulation, Take 27 | Burning the House to Roast the Pig: How Not to Protect Minors on Social Media | The AI Revolution Raises Terrifying Questions about Virtual Child Pornography