Judge Robert Pitman said that it violates the First Amendment and is "more likely than not - unconstitutional."
The Act is akin to a law that would require every bookstore to verify
the age of every customer at the door and, for minors, require parental
consent before the child or teen could enter and again when they try to
purchase a book.
We enjoy 1A protections of speech and assembly. When we consider our rights, the productive, default position is that government is told no (when it wants to restrict us).
For those curious about the "consistent principle of law" here - SCOTUS wrestled with nearly exactly this question in Free Speech Coalition v. Paxton earlier this year, and effectively emboldened more of these laws.
Previously the Fifth Circuit had relied heavily on Ginsberg v. New York (1968) to justify rational basis review. But Ginsberg was a narrow scope - it held that minors don't have the same First Amendment rights as adults to access "obscene as to minors" material. It wasn't about burdens on adults at all. Later precedent (Ashcroft, Sable, Reno, Playboy) consistently applied strict scrutiny when laws burdened adults' access to protected speech, even when aimed at protecting minors.
In Paxton the majority split the difference and applied intermediate scrutiny - a lower bar than strict - claiming the burden on adults is merely "incidental." Kagan had a dissent worth reading, arguing this departs from precedent even if the majority won't frame it that way. You could call it "overturning" or "distinguishing" depending on how charitable you're feeling.
On 1A: The core concern isn't that age-gating exists - it's that mandatory identification to access legal speech creates chilling effects and surveillance risks that don't exist when you flash an ID at a liquor store.
Note: IANAL but do enjoy reading many SC transcripts
Law is a strange and possibly the only aspect in human societies where people are by default assumed to know, understand and follow it to the letter when everybody acknowledges that law is open to interpretation. You cannot in most cases claim ignorance as it can be abused by criminals.
But there is whole industry of education, profession, journals, blogs, podcasts and videos trying to teach, interpret and explain the same laws. In the end it is decided by experts who have been practicing law for decades and even almost half of those experts may disagree on the right interpretation but a citizen is expected to always get it right from the start.
Judges are struggling to find the analogies known to them from the world of 70's. Apps are not like books only. They are like movies, sports, tools, postal mailbox, pet, friend, bank, money, shop, cab and anything you can imagine. When movies require age-restriction, apps can do so too.
And which movies, when broadcast on TV (i.e. viewed inside people's homes), verify the age of everyone watching before continuing? Your analogy is just as flawed.
The technical implementation is messy too. Most age verification systems either don't work well or create massive privacy risks by requiring government ID uploads.
This is the difference between standing on a street corner shouting "shit" and taking a shit on a street corner.
The court is generally pretty adept at navigating the difference between "a bookstore that has some spicy books" and "a sex shop that has some non-spicy books".
It is difficult to square the notional unconstitutionality of this with the fact that the exercise of other Constitutional rights have long been conditional on age. This just looks like another example.
What is the consistent principle of law? I am having difficulty finding one that would support this ruling.
Laws limiting fundamental constitutional rights are subject to "strict scrutiny", which means they must be justified by a compelling government interest, narrowly tailored, and be the least restrictive means to achieve the interest in question. One might reasonably argue even that standard gives the government too much leeway when it comes to fundamental rights.
Age restrictions narrowly tailored to specific content thought to be harmful to minors have often been tolerated by the courts, but something broad like all book stores, all movie theaters, or all app stores violates all three strict scrutiny tests.
I'm interested: the only one that I can think of that has some limitations is the second amendment? Are there others?
As to the first amendment: Although not equal to that of adults, the U.S. Supreme Court has said that "minors are entitled to a significant measure of First Amendment protection." Only in relatively narrow and limited circumstances can the government restrict kids' rights when it comes to protected speech. (Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975).)
> It is difficult to square the notional unconstitutionality of this with the fact that the exercise of other Constitutional rights have long been conditional on age.
Some of this depends on whether the state has an interest in preventing known, broad harms - say in the case limiting minors ability to consume alcohol.
Conversely, there are no clearly proven, known targeted harms with respect of youth access to app stores (or even social media). What there are, are poorly represented / interpreted studies and a lot of media that is amplifying confused voices concerning these things.
The government doesn't have a compelling state interest in preventing you from downloading any app (a weather app, for instance) unless you provide your government ID first.
> In U.S. constitutional law, when a law infringes upon a fundamental constitutional right, the court may apply the strict scrutiny standard. Strict scrutiny holds the challenged law as presumptively invalid unless the government can demonstrate that the law or regulation is necessary to achieve a "compelling state interest". The government must also demonstrate that the law is "narrowly tailored" to achieve that compelling purpose, and that it uses the "least restrictive means" to achieve that purpose. Failure to meet this standard will result in striking the law as unconstitutional.
> It is difficult to square the notional unconstitutionality of this with the fact that the exercise of other Constitutional rights have long been conditional on age. This just looks like another example.
> What is the consistent principle of law? I am having difficulty finding one that would support this ruling.
The Constitution of the US mentions age in a few very specific places, namely the minimum age to run for The House, The Senate, The Presidential seat, and I believe voting age.
> the fact that the exercise of other Constitutional rights have long been conditional on age
Which of those are in regard to the 1st Amendment?
> This just looks like another example.
No, it doesn't.
> What is the consistent principle of law?
The 1st Amendment.
> I am having difficulty finding one that would support this ruling.
The judge stated it clearly. And if there's an inconsistency then it's other rulings that violate the 1st Amendment that aren't supported, not this one.
As a UK subject, with a government that has begun implementing the online safety act, prosecuting people for tweets that clearly weren't inciting violence and getting rid of jury trials for cases with fewer than five years sentences, I look on with envy at your constitutional protections of the individual.
All of us in the EU could learn something from this judge's ruling and from the Constitution. The EU is on the fast-track to turning into a vast surveillance state the way things have been going (the increasing rise of arresting people who post mean things on the internet, Chat Control, age restrictions now rolling out in Denmark).
We love to regulate here in the EU and now that love of regulation is being weaponized against its own people.
False analogy given by this federal judge. App stores are gateways to social environments and unknown or future content. Every book in a bookstore can be verified because the content can be known and audited. Regardless of opinion on the root issue, this judges statement aligns books with the Internet and they are absolutely not the same.
> Every book in a bookstore can be verified because the content can be known and audited
A bookstore with a single employee can no more verify the content of every new book or periodical put up for sale than Apple can verify all new content on the internet.
Books and periodicals come out far, far too quickly for an independently owned bookstore to read first. Never mind new books which have set release dates where bookstores might not get advanced copies for books sold on consignment.
Yes, but you can't stop eight year olds from grabbing a James Patterson or Stephen King novel from the shelf. Their parents should, and some librarians might throw a moral exception to their choice, but if they wanna read It, they're gonna read It.
Enforcing anything other than that is a huge 1A violation IMO.
I hope we can use the First Amendment and freedom of assembly to tackle these ID age verification (read: 1984 surveillance) laws. I don't have faith that this will work.
We need to amend the constitution to guarantee our privacy. It should be a fundamental right.
> We need to amend the constitution to guarantee our privacy. It should be a fundamental right.
As far as government intrusion into our privacy, it's addressed by the 4th Amendment's guarantee - that the right of the people to be secure in their persons, houses, papers, and effects and that our rights against unreasonable searches and seizures, shall not be violated.
The challenge is that courts repeatedly and routinely support and protect the government in it's continual, blatant violation of our 4A protections.
This has allowed governments at every level to build out the most pervasive surveillance system in human history - which has just been waiting for a cruelty-centric autocrat to take control of it.
And for the most part, we have both parties + news orgs to thank for this. They've largely been united in supporting all the steps toward this outcome.
What also gets glossed over is the privacy tradeoff: to "protect minors," you end up collecting more sensitive data about everyone, including adults downloading trivial apps
> we are concerned that SB2420 impacts the privacy of users by requiring the collection of sensitive, personally identifiable information to download any app, even if a user simply wants to check the weather or sports scores.
Avoiding the collection of user data in the first place (if it's possible) is exactly the correct approach to user privacy.
I spend well over a month now on the topic to implement the different half cooked APIs into our apps. The chance that this gets overturned or blocked was high but we had to race anyways.
I’m curious what this means for similar legislations in others states line Utah and Louisiana that where planned to get into effect later this year.
I very much saw the irony that Texas of all regions tried to restrict the Wild West that is the digital App Store landscape.
I think something needs to be done but the implementation proposed is not just problematic but also downright technically impossible.
Our first implementation simply failed open for all kinds of errors. Reading the AppStore Age Verification APIs (except Apple) they tried to make this an app problem ala: Playstore is not up to date. Show a message to the user yadayadayada…
There so many reasons why this call can go wrong. And the apps won’t start blocking all users just because this call failed. Not to speak about the issue that just for Texas we had to implement said call globally. Because the law states that a an account created after 1.1.26 of a Texas “resident” needs these additional checks.
Well let’s see what happens next.
Because people were so sick of their shit, and they already got their asses beaten so hard that they turned a fundamentalist city into an atheistic one. Banned in Boston used to be a thing. Boston itself got sick of that puritan bullshit.
They know that re-litigating that is a road to ruin because 'artistic merit' is so well tread a ground in literature.
So, the law seems broken as judges question and interpret a law as unconstitutional. If every judge across the country does this, we can dismantle entire law. Awesome. The power of capitalism and platform monoply is at full display.
I do not see how this is an argument. If porn can be narrowly targeted, why apps can not be targeted narrowly as well?
It seems to be more about harmonizing Texas law (SB2420) under the constraints of federal law (1A), so we will likely to see this question all the way to the USSC.
I just received an email from Google Play Developer today morning that they will not be activating the age verification APIs (they will throw an exception) because of the injunction, so there's nothing Apple specific about this.
If the judge finds that apps and books are so equivalent, then letting the apps require age verification should do no harm -- everyone underage or privacy-concerned will simply go to the bookstore or a library. Right?
Apparently, these are not quite equivalent. Like books and weapons, like books and alcohol, etc.
> If the judge finds that apps and books are so equivalent, then letting the apps require age verification should do no harm -- everyone underage or privacy-concerned will simply go to the bookstore or a library. Right?
Good point, but judge's reduction it to a book equivalence is misleading and weakens the judgement.
Porn may provide a suitable model: not all movies need age verification, so those can be viewed at any age. Some movies, however, do require age verification. Similar age ratings could be applied to apps. For example, Facebook only after 18 regardless of parent's approval.
Judge Robert Pitman said that it violates the First Amendment and is "more likely than not - unconstitutional."
We enjoy 1A protections of speech and assembly. When we consider our rights, the productive, default position is that government is told no (when it wants to restrict us).
For those curious about the "consistent principle of law" here - SCOTUS wrestled with nearly exactly this question in Free Speech Coalition v. Paxton earlier this year, and effectively emboldened more of these laws.
Previously the Fifth Circuit had relied heavily on Ginsberg v. New York (1968) to justify rational basis review. But Ginsberg was a narrow scope - it held that minors don't have the same First Amendment rights as adults to access "obscene as to minors" material. It wasn't about burdens on adults at all. Later precedent (Ashcroft, Sable, Reno, Playboy) consistently applied strict scrutiny when laws burdened adults' access to protected speech, even when aimed at protecting minors.
In Paxton the majority split the difference and applied intermediate scrutiny - a lower bar than strict - claiming the burden on adults is merely "incidental." Kagan had a dissent worth reading, arguing this departs from precedent even if the majority won't frame it that way. You could call it "overturning" or "distinguishing" depending on how charitable you're feeling.
The oral arguments are worth watching if you want to understand how to grapple with these questions: https://www.youtube.com/watch?v=ckoCJthJEqQ
On 1A: The core concern isn't that age-gating exists - it's that mandatory identification to access legal speech creates chilling effects and surveillance risks that don't exist when you flash an ID at a liquor store.
Note: IANAL but do enjoy reading many SC transcripts
Law is a strange and possibly the only aspect in human societies where people are by default assumed to know, understand and follow it to the letter when everybody acknowledges that law is open to interpretation. You cannot in most cases claim ignorance as it can be abused by criminals.
But there is whole industry of education, profession, journals, blogs, podcasts and videos trying to teach, interpret and explain the same laws. In the end it is decided by experts who have been practicing law for decades and even almost half of those experts may disagree on the right interpretation but a citizen is expected to always get it right from the start.
7 replies →
I would read your summaries of legal precedents again, ahead of lots of people who AAL.
3 replies →
Judges are struggling to find the analogies known to them from the world of 70's. Apps are not like books only. They are like movies, sports, tools, postal mailbox, pet, friend, bank, money, shop, cab and anything you can imagine. When movies require age-restriction, apps can do so too.
And which movies, when broadcast on TV (i.e. viewed inside people's homes), verify the age of everyone watching before continuing? Your analogy is just as flawed.
The technical implementation is messy too. Most age verification systems either don't work well or create massive privacy risks by requiring government ID uploads.
https://news.ycombinator.com/item?id=46223051 This one works well. Or at least, as well as age verification for tobacco and alcohol. And equally privacy-preserving.
3 replies →
That feels like a feature and not a bug given the way some of this stuff is heading.
1 reply →
LinkedIn’s verification is maddening
3 replies →
> "would require every bookstore to verify the age of every customer at the door and, for minors..."
It's a dumb law, but, devil's advocate - isn't that how porn shops work? And porn shops also sell some non-porn items, too.
This is the difference between standing on a street corner shouting "shit" and taking a shit on a street corner.
The court is generally pretty adept at navigating the difference between "a bookstore that has some spicy books" and "a sex shop that has some non-spicy books".
5 replies →
Yes, first amendment is not absolute.
https://en.wikipedia.org/wiki/United_States_free_speech_exce...
2 replies →
It is difficult to square the notional unconstitutionality of this with the fact that the exercise of other Constitutional rights have long been conditional on age. This just looks like another example.
What is the consistent principle of law? I am having difficulty finding one that would support this ruling.
Laws limiting fundamental constitutional rights are subject to "strict scrutiny", which means they must be justified by a compelling government interest, narrowly tailored, and be the least restrictive means to achieve the interest in question. One might reasonably argue even that standard gives the government too much leeway when it comes to fundamental rights.
Age restrictions narrowly tailored to specific content thought to be harmful to minors have often been tolerated by the courts, but something broad like all book stores, all movie theaters, or all app stores violates all three strict scrutiny tests.
I'm interested: the only one that I can think of that has some limitations is the second amendment? Are there others?
As to the first amendment: Although not equal to that of adults, the U.S. Supreme Court has said that "minors are entitled to a significant measure of First Amendment protection." Only in relatively narrow and limited circumstances can the government restrict kids' rights when it comes to protected speech. (Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975).)
10 replies →
> It is difficult to square the notional unconstitutionality of this with the fact that the exercise of other Constitutional rights have long been conditional on age.
Some of this depends on whether the state has an interest in preventing known, broad harms - say in the case limiting minors ability to consume alcohol.
Conversely, there are no clearly proven, known targeted harms with respect of youth access to app stores (or even social media). What there are, are poorly represented / interpreted studies and a lot of media that is amplifying confused voices concerning these things.
The government doesn't have a compelling state interest in preventing you from downloading any app (a weather app, for instance) unless you provide your government ID first.
> In U.S. constitutional law, when a law infringes upon a fundamental constitutional right, the court may apply the strict scrutiny standard. Strict scrutiny holds the challenged law as presumptively invalid unless the government can demonstrate that the law or regulation is necessary to achieve a "compelling state interest". The government must also demonstrate that the law is "narrowly tailored" to achieve that compelling purpose, and that it uses the "least restrictive means" to achieve that purpose. Failure to meet this standard will result in striking the law as unconstitutional.
https://en.wikipedia.org/wiki/Strict_scrutiny
> It is difficult to square the notional unconstitutionality of this with the fact that the exercise of other Constitutional rights have long been conditional on age. This just looks like another example.
> What is the consistent principle of law? I am having difficulty finding one that would support this ruling.
The Constitution of the US mentions age in a few very specific places, namely the minimum age to run for The House, The Senate, The Presidential seat, and I believe voting age.
I don't understand your point.
14 replies →
> the fact that the exercise of other Constitutional rights have long been conditional on age
Which of those are in regard to the 1st Amendment?
> This just looks like another example.
No, it doesn't.
> What is the consistent principle of law?
The 1st Amendment.
> I am having difficulty finding one that would support this ruling.
The judge stated it clearly. And if there's an inconsistency then it's other rulings that violate the 1st Amendment that aren't supported, not this one.
7 replies →
As a UK subject, with a government that has begun implementing the online safety act, prosecuting people for tweets that clearly weren't inciting violence and getting rid of jury trials for cases with fewer than five years sentences, I look on with envy at your constitutional protections of the individual.
All of us in the EU could learn something from this judge's ruling and from the Constitution. The EU is on the fast-track to turning into a vast surveillance state the way things have been going (the increasing rise of arresting people who post mean things on the internet, Chat Control, age restrictions now rolling out in Denmark).
We love to regulate here in the EU and now that love of regulation is being weaponized against its own people.
False analogy given by this federal judge. App stores are gateways to social environments and unknown or future content. Every book in a bookstore can be verified because the content can be known and audited. Regardless of opinion on the root issue, this judges statement aligns books with the Internet and they are absolutely not the same.
> Every book in a bookstore can be verified because the content can be known and audited
A bookstore with a single employee can no more verify the content of every new book or periodical put up for sale than Apple can verify all new content on the internet.
Books and periodicals come out far, far too quickly for an independently owned bookstore to read first. Never mind new books which have set release dates where bookstores might not get advanced copies for books sold on consignment.
Yes, but you can't stop eight year olds from grabbing a James Patterson or Stephen King novel from the shelf. Their parents should, and some librarians might throw a moral exception to their choice, but if they wanna read It, they're gonna read It.
Enforcing anything other than that is a huge 1A violation IMO.
1 reply →
With that argument you could argue for age gating wifi access and mobile data.
3 replies →
Have you read the opinion?
1 reply →
That is exactly the case for movies, yes?
Movie theatres require a chaperon for minors for R rated films? (And theatres often block some ages entirely.)
I hope we can use the First Amendment and freedom of assembly to tackle these ID age verification (read: 1984 surveillance) laws. I don't have faith that this will work.
We need to amend the constitution to guarantee our privacy. It should be a fundamental right.
> We need to amend the constitution to guarantee our privacy. It should be a fundamental right.
As far as government intrusion into our privacy, it's addressed by the 4th Amendment's guarantee - that the right of the people to be secure in their persons, houses, papers, and effects and that our rights against unreasonable searches and seizures, shall not be violated.
The challenge is that courts repeatedly and routinely support and protect the government in it's continual, blatant violation of our 4A protections.
This has allowed governments at every level to build out the most pervasive surveillance system in human history - which has just been waiting for a cruelty-centric autocrat to take control of it.
And for the most part, we have both parties + news orgs to thank for this. They've largely been united in supporting all the steps toward this outcome.
16 replies →
Between AI improvements, laws like this and Telly, we are a few steps away from the telescreen.
(I saw a Telly recently. This device should be terrifying, but "free" makes people make weird choices.)
What also gets glossed over is the privacy tradeoff: to "protect minors," you end up collecting more sensitive data about everyone, including adults downloading trivial apps
> we are concerned that SB2420 impacts the privacy of users by requiring the collection of sensitive, personally identifiable information to download any app, even if a user simply wants to check the weather or sports scores.
Avoiding the collection of user data in the first place (if it's possible) is exactly the correct approach to user privacy.
I spend well over a month now on the topic to implement the different half cooked APIs into our apps. The chance that this gets overturned or blocked was high but we had to race anyways. I’m curious what this means for similar legislations in others states line Utah and Louisiana that where planned to get into effect later this year.
I very much saw the irony that Texas of all regions tried to restrict the Wild West that is the digital App Store landscape. I think something needs to be done but the implementation proposed is not just problematic but also downright technically impossible. Our first implementation simply failed open for all kinds of errors. Reading the AppStore Age Verification APIs (except Apple) they tried to make this an app problem ala: Playstore is not up to date. Show a message to the user yadayadayada… There so many reasons why this call can go wrong. And the apps won’t start blocking all users just because this call failed. Not to speak about the issue that just for Texas we had to implement said call globally. Because the law states that a an account created after 1.1.26 of a Texas “resident” needs these additional checks. Well let’s see what happens next.
I wonder why Texas did not start by targeting NSFW / porn apps specifically, like other states.
I also wonder why smut literature (the best selling category of books on Amazon) seems to get a free pass.
The app stores already block porn on their own initiative.
> I also wonder why smut literature (the best selling category of books on Amazon) seems to get a free pass.
It's popular with women and basically invisible to men.
And being long-form written text, likely invisible to minors as well.
Because people were so sick of their shit, and they already got their asses beaten so hard that they turned a fundamentalist city into an atheistic one. Banned in Boston used to be a thing. Boston itself got sick of that puritan bullshit.
They know that re-litigating that is a road to ruin because 'artistic merit' is so well tread a ground in literature.
So, the law seems broken as judges question and interpret a law as unconstitutional. If every judge across the country does this, we can dismantle entire law. Awesome. The power of capitalism and platform monoply is at full display.
The only reason the earlier age verification laws were upheld were because they narrowly targeted porn. This is an entirely unsurprising outcome.
I do not see how this is an argument. If porn can be narrowly targeted, why apps can not be targeted narrowly as well?
It seems to be more about harmonizing Texas law (SB2420) under the constraints of federal law (1A), so we will likely to see this question all the way to the USSC.
Porn is a category; apps are a concept
Like age laws for vape pens vs age laws for shopping.
> "The Act is akin to a law that would require every bookstore to verify the age of every customer at the door"
Presumably for the same reason why libraries can not be targeted narrowly
"If porn can be narrowly targeted, why not books?"
You cannot narrowly target a medium.
Apps aren’t a narrow target
wait, so its not affect apple users ????
Google just sent me a email today that Google would push forward
I just received an email from Google Play Developer today morning that they will not be activating the age verification APIs (they will throw an exception) because of the injunction, so there's nothing Apple specific about this.
> they will throw an exception
Reminds me of HTTP error code 451, Unavailable For Legal Reasons.
I can imagine some future programming language with a LegalRestrictionException.
[flagged]
Judicial Authoritarianism.
And i just got a ton of apps updated and ready for it…
Thanks, Obama
If the judge finds that apps and books are so equivalent, then letting the apps require age verification should do no harm -- everyone underage or privacy-concerned will simply go to the bookstore or a library. Right?
Apparently, these are not quite equivalent. Like books and weapons, like books and alcohol, etc.
> If the judge finds that apps and books are so equivalent, then letting the apps require age verification should do no harm -- everyone underage or privacy-concerned will simply go to the bookstore or a library. Right?
That is obvious harm.
This is only an obvious lack of equivalence
The equivalence is that children have first amendment rights (see Tinker v Des Moines) and speech delivered by the internet is still speech.
Good point, but judge's reduction it to a book equivalence is misleading and weakens the judgement.
Porn may provide a suitable model: not all movies need age verification, so those can be viewed at any age. Some movies, however, do require age verification. Similar age ratings could be applied to apps. For example, Facebook only after 18 regardless of parent's approval.
6 replies →
I have no idea what you're on about but the point is this chills speech, and infringes on the rights of everyone involved, not just underage people.
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