Today, TechFreedom joined an amicus brief urging the U.S. Supreme Court to overturn the Fifth Circuit’s misapplication of First Amendment law to online adult speech. HB 1181 requires any website with more than one-third adult content to verify its visitors’ ages. HB 1181 thus forces users to submit government-issued ID or other proof-of-age, threatening online anonymity. 

“The district court rightly found that HB 1181 unconstitutionally restricts adult access to protected speech,” said Santana Boulton, Legal Fellow at TechFreedom. “Adult speech is generally protected by the First Amendment. Yet age-verification technology deters users from visiting adult sites because those users are worried about their privacy. One site says only 3% of visitors complete age-verification successfully.”

“ID verification and facial scanning technology aren’t foolproof, nor are they perfectly secure,” Boulton continued. “Some adults don’t have the required government ID or data trail, and others don’t want to hand over these sensitive documents to age-verification providers. People take their online anonymity very seriously, especially when it comes to adult content. Despite improvements in securing the data used to verify age, requiring users to age-verify themselves chills protected speech because users continue to fear a loss of anonymity of pseudonymity.” 

“Content-based regulations of speech are presumptively invalid under strict scrutiny,” Boulton concluded. “The Fifth Circuit broke with precedent and applied a lower form of scrutiny to uphold the law. We urge the Supreme Court to apply long-standing First Amendment law and protect Americans’ freedom of speech, including their freedom to access adult content.”

The case is Free Speech Coalition, Inc. v. Paxton, No. 23-122 (U.S.) and the brief was led by the Electronic Frontier Foundation

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