Comment by WarOnPrivacy
15 hours ago
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.
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.
Occam's Razor - this complexity arises from the human nature to try and build consistent abstractions over complex situations. It's exactly what we do in software too. To an outsider it's going to look nonsensical.
I want to share a thought experiment with you - atop an ancient Roman legal case I recall from Gregory Aldrete - The Barbershop Murder.
Suppose a man sends his slave to a barbershop to get a shave. The barbershop is adjacent to an athletic field where two men are throwing a ball back and forth. One throws the ball badly, the other fails to catch it, and the ball flies into the barbershop, hits the barber's hand mid-shave, and cuts the slave's throat-killing him.
The legal question is posed: Who is liable under Roman law?
- Athlete 1 who threw the ball badly
- Athlete 2 who failed to catch it
- The barber who actually cut the throat
- The slave's owner for sending his slave to a barbershop next to a playing field
- The Roman state for zoning a barbershop adjacent to an athletic field
Q: What legal abstractions are required to apply consistent remedies to this case amongst others?
Opinion: You'd need a theory of negligence. A definition of proximate cause. Standards for foreseeability. Rules about contributory fault. A framework for when the state bears regulatory responsibility. Each of those needs edge cases handled, and those edge cases need to be consistent with rulings in other domains.
Now watch these edge cases compound, before long you've got something that looks absurdly complex. But it's actually just a hacky minimum viable solution to the problem space. That doesn't make it fair that citizens bear the burden of navigating it - but the alternative is inequal application of the law
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Strange and destructive. I believe comprehensible law is a human right that is critically underacknowledged. Like, up there with the right to speech and a fair trial.
If you cannot understand the law as it applies to you, you cannot possibly be free under that law, because your actions will always be constrained by your uncertainty.
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In the end, we are at the mercy of those with power. Laws are just a way to make their decisions appear fair and appease the masses. If you piss off enough the wrong person with power, it doesn't matter what the laws say, you'll get screwed.
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I would read your summaries of legal precedents again, ahead of lots of people who AAL.
Highly recommend the podcast “Advisory Opinions” if you are interested in Supreme Court analysis.
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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.
Agreed! Great idea. I'll save others the click:
"The insistence on perfect age verification requires ending anonymity. Age verification to the level of buying cigarettes or booze does not. Flash a driver's license at a liquor store to buy a single-use token, good for one year, and access your favorite social media trash. Anonymity is maintained, and most kids are locked out. In the same way that kids occasionally obtain cigs or beer despite safeguards, sometimes they may get their hands on a code. Prosecute anyone who knowingly sells or gives one to a minor."
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That feels like a feature and not a bug given the way some of this stuff is heading.
Don’t let it.
LinkedIn’s verification is maddening
LinkedIn is maddening. If you make the mistake of signing up, it takes years to escape their spam and bs.
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> "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".
I guess that makes sense. Thanks.
Most modern social media is the latter, but for trash and propaganda, rather than sex. So why doesn't the court apply the same rule that it's okay to check IDs on entry?
Bookstores that carry porn are porn shops. Apps that carry porn are porn shops, and since the app store has apps that carry porn, the app store is a porn shop.
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ICYMI Kavanaugh endorsed arresting people because they look brown so I'm not sure why we're putting any faith in the court system.
Laws which are open to abuse are bad laws. Full stop.
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Yes, first amendment is not absolute.
https://en.wikipedia.org/wiki/United_States_free_speech_exce...
Only the second one is absolute for some reason.
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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).)
Why is the second amendment excepted? Nothing in the text says anything different from the others with regards to age.
And don't say "because it's insane for kids to buy deadly weapons" because that doesn't seem to figure into any other part of second amendment interpretation.
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The Bong hits 4 Jesus case[1] clarified that minors don’t have full first amendment rights since they are compelled to attend school, and government employees can punish them for their speech.
My memory is failing me for the relevant case name but I’m also fairly sure students don’t have full 4th amendment rights, again because they are compelled to attend school and the government employees are allowed to search them at any time
[1] https://en.wikipedia.org/wiki/Morse_v._Frederick
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> 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.
The interpretation of existing jurisprudence is that age limits on the free exercise of rights is Constitutional in many circumstances regardless of if such limits are not explicitly in the Constitution. This is a simple observation of the current state of reality.
Those age limits are arbitrary and the justification can sometimes be nebulous but they clearly exist in the US.
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> 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.
Correct. If a right "shall not be infringed", then it shall not be infringed. Period. End of discussion. That right is inviolate. Any obstruction to its exercise is plainly anti-American.
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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.
When movies are broadcast on TV, they must first be censored according to the FCC's rules. Of course this only applies to broadcast, not cable, but cable doesn't get broadcast into people's houses without them signing up for it.
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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.
Age gates at the App Store level aren't a narrow restriction, they're a universal checkpoint
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.
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.
"you can't stop eight year old from ..."
Phrasing this as "you" versus "a second party to the child" involves me, where I originally did not present a statement that would give the impression that I'd be involved. Keep me - "you" - out of it. I'm simply making fun of this analogy.
> 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.
That’s an argument that sounds convincing in principle, but in reality I can walk into any independent bookstore and find it’s not filled with porn and AI slop, so clearly there is a successful vetting process going on. Namely, the publishers vet the books then the bookstore owner only has to vet the publishers. A proof of concept internet equivalent is if I scrape a bunch of trusted YouTube channels onto a NAS and give my kids access to that NAS but block YouTube access otherwise.
With that argument you could argue for age gating wifi access and mobile data.
Bookstore and libraries are environments where content is known. I am not making any sort of argument that identifies internet access as something to age gate.
Correct analogies should be used to present the most fool proof argument.
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Have you read the opinion?
Yes and I am addressing the quoted remark above which stands out.
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.
> 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 Pennsylvania High Court recently ruled that the Pennsylvania local police don't need a warrant to access your search history.
https://news.ycombinator.com/item?id=46329186
Clearly, those protections have already been violated.
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The other challenge is that in the modern era the houses, papers, and effects of most people have been partially signed off to corporate entities who are more than happy to consent away their access into our effects.
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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.)
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.)
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.
The problem interpreting the intent of that tweet is that Lucy Connolly herself admitted to authorities she was inciting violence so becomes hard to build a defence at that point. Incitement isn’t first amendment protected in the US either https://codes.findlaw.com/us/title-18-crimes-and-criminal-pr...
I should be clearer and provide references etc, I was refering to this: https://freespeechunion.org/labour-reported-me-for-racial-ha...
The major part of this case is that without a jury trial he'd probably have had zero chance of being cleared. Countless others were persuaded to plead guilty to avoid a long time in prison and then were given long sentences. h he was strong enough not to give in.
You are right, freedom of expression in the US doesn't cover inciting violence, but it has an high bar, imminent lawless action:
https://en.wikipedia.org/wiki/Brandenburg_v._Ohio
Yes in Lucy Connolly's case she admitted to inciting violence, though I'm not certain what she did justifies a 31 month sentence.
American constitution is underappreciated. It ensures peace but faces profoundly undeserved hatred in return.