The Supreme Court is now wrestling with Free Speech Coalition v. Paxton, a case that could redefine what freedom of speech—or even the freedom to browse—means in the digital era. Texas, never one to shy away from bold ideas, is defending its latest masterpiece: House Bill 1181. This law demands that any commercial website hosting content vaguely defined as “sexual material harmful to minors” must verify the ages of its users. If more than a third of a site’s content is deemed risqué or “harmful to minors,” the digital bouncers must come out. No ID, no entry. Violators face civil penalties.

Because nothing says “small government” like forcing websites to collect and store the personal data of millions, especially when lawmakers want these laws extended to social media platforms – a move that would end online anonymity for all.

Digital IDs: The Trojan Horse of “Safety”

The real game here is about forcing the public into digital identification systems. What started as a “protect the children” campaign has quietly morphed into a full-blown movement to tag, track, and catalog online activity. These digital IDs would link your browsing habits directly to your government-approved identity.

Activists, whistleblowers, and anyone seeking support for sensitive issues? Too bad. Want to research sensitive topics or political dissent in peace? Better be prepared to flash your ID. The concept of online anonymity—once a bedrock of internet freedom—is now on life support.

But hey, at least you’ll be safe from “misinformation” and “cyberbullying.” Or so many lawmakers claim.

Lawmakers paint a rosy picture of age verification as the silver bullet against online exploitation, bullying, and whatever else is trending in public outrage this week. But critics — those pesky folks who actually read the fine print — are sounding alarms about increased surveillance, rampant data misuse, and the kind of government overreach that used to make Texas conservatives foam at the mouth.

Justices Sympathetic to Age Verification, Skeptical of Alternatives

If the Supreme Court hearing was any indication, the justices seem to be warming up to the idea of turning the internet into a digital checkpoint. The bench wasn’t exactly teeming with skepticism over Texas’s age verification law during oral arguments this week. In fact, they seemed far more interested in poking holes in the alternatives.

Justice Amy Coney Barrett, ever the tech philosopher, dusted off Ashcroft v. ACLU II from 2004 and wondered if maybe, just maybe, the internet had evolved a bit since the MySpace era. “The Court…expressed anxiety about the fact that technology moves so fast,” she mused. “It’s been 20 years since Ashcroft. The iPhone was introduced in 2007 and Ashcroft was decided in 2004. Kids can get online porn through gaming systems, tablets, phones, computers.” Then, offering an unsolicited peek into her own parenting struggles, she added, “Let me just say that content filtering for all those different devices, I can say from personal experience, is difficult to keep up with. And I think that the explosion of addiction in online porn has shown that content filtering isn’t working.”

If tech genius Justice Barrett can’t block adult content on her Wi-Fi, how is anyone else supposed to?

Justice Samuel Alito, always ready to play devil’s advocate, chimed in with a well-worn trope: teenagers are just too tech-savvy for their clueless parents. Content filters? Please. “Kids these days” practically code their way past those within hours. Apparently, Alito’s solution is to sidestep the whole cat-and-mouse game by putting the burden on websites. Because nothing screams effective governance like punishing websites for parents’ lack of tech literacy.

Then there was Justice Brett Kavanaugh, who, in case anyone missed the point, hammered it home: “Content filtering may work to some extent, but it doesn’t work to the same extent in achieving the government’s interest.” Ah yes, the government’s “interest” — that ever-expanding concept that somehow keeps growing like a moldy sandwich in the back of the fridge.

“There Have Been Hacks of Everything”

Representing the Free Speech Coalition, Derek L. Shaffer bravely stepped up to point out the glaringly obvious: mandating online age verification creates a “permanent record” of users’ identities and browsing habits. And let’s be honest, any database holding that much sensitive information might as well hang a “Hack Me” sign on its front door. The risks are staggering — data breaches, identity theft, surveillance nightmares. But Justice Alito wasn’t losing sleep over it.

“There have been hacks of everything,” Alito said flatly.

Oh, well, if everything gets hacked, what’s a little more? That’s a bit like saying, “Well, houses get robbed all the time, so why bother locking the door?” It’s comforting to know that when it comes to protecting personal data, the highest court in the land shrugs its collective shoulders.

Comparisons to Offline Age Verification: Oversimplifying a Complex Issue

Several justices zeroed in on the idea that online age verification for pornography might not be so different from offline verification methods. Justice Amy Coney Barrett cut right to the point, questioning, “why the barrier is different online than in a brick-and-mortar setting.”

She elaborated with a comparison that seemed almost too simplistic for the complexity of the issue: “You don’t have privacy if you go into the bookstore in Ginsberg or if you go to a movie theater that displays pornographic movies…you have to show age verification.”

But here’s the flaw in that logic: showing an ID to a cashier at a video store in 1995 doesn’t generate a permanent digital record of your preferences. Online verification systems, by contrast, can log, store, and potentially expose a person’s most private browsing habits. The stakes online are astronomically higher. Yet, Barrett’s comparison reduces this to a matter of showing your ID at the counter.

Justice Elena Kagan also dipped into this line of questioning, exploring whether offline age verification for physical adult content — like magazines tucked behind convenience store counters — would trigger strict scrutiny. The suggestion being that if society accepts ID checks for adult content in physical spaces, why shouldn’t the internet follow suit?

Justice Neil Gorsuch took the conversation even further, pressing Derek Shaffer with the blunt question: “Okay. All those are okay, but this is different?” He was referring to age verification requirements for online gambling and firearm purchases. But comparing adult content consumption—a form of protected speech—to buying a gun or placing online bets ignores the massive difference in constitutional protections involved.

But nuance seemed in short supply.

Technological Advancements as Justification: The “Modern Problems Require Modern Solutions” Argument

Chief Justice John Roberts, not one to be left out of the tech talk, leaned on the inevitability of technological change to justify revisiting legal standards. He stated, “There are cases where the technological developments caused the Court to reconsider the precedents that were developed…prior to very significant changes.”

Meaning: Just because legal precedent once protected online privacy doesn’t mean it should continue to do so now that technology makes surveillance easier. That logic should send a chill down anyone’s spine.

Justice Clarence Thomas, typically reserved, echoed Roberts’ sentiment, pointing out that the internet landscape has changed dramatically since the dial-up days. As if the shift from AOL to high-speed internet somehow invalidates the First Amendment.

Justice Brett Kavanaugh added the cherry on top, noting, “Age verification technology has become cheaper, more effective in preventing circumvention.”

And there it is. The crux of the argument: because technology has advanced, privacy must retreat. Because it’s now cheaper and easier to implement mass surveillance under the guise of age verification, it must be done.

But cheaper and more effective for whom? Certainly not for everyday users, who would be handing over their sensitive data to corporations and governments. The real winners here are data brokers, surveillance firms, and lawmakers eager to expand their reach.

While some justices seemed ready to hand Texas a blank check on online surveillance, not everyone on the bench was buying it. Justice Sonia Sotomayor repeatedly pushed back, suggesting that strict scrutiny — the highest legal standard for laws affecting constitutional rights — might be the only appropriate way to evaluate Texas’s age verification law. Sotomayor’s line of questioning hinted at deep skepticism about the state’s attempt to sidestep the First Amendment with vague claims of child protection.

Justice Ketanji Brown Jackson sharpened this critique by invoking the Supreme Court’s own precedent in Reno v. ACLU, the landmark 1997 decision that struck down the Communications Decency Act for violating free speech rights online. Jackson questioned how the justifications for Texas’s law could possibly align with that ruling. “I guess I don’t understand how Justice Barrett’s hypothesized standard would be consistent with what we said in Reno…it received strict scrutiny,” Jackson pointedly remarked.

In other words, if Reno required strict scrutiny to protect free speech online nearly 30 years ago, why should Texas’s law be given a pass now?

A Split Bench and a Wild Card

The division among the justices didn’t go unnoticed by legal scholars. Eric Goldman, a respected legal expert on internet law, assessed the tone of the oral arguments and observed, “Oral arguments are always a little tricky to predict, but I heard at least five votes (Barrett, Jackson, Kagan, Kavanaugh, Sotomayor) to reverse the Fifth Circuit’s opinion allowing the law to go into effect. Roberts is a wild card, and the other three justices usually vote against what’s best for the Internet.”

Goldman’s analysis points to a potential majority willing to strike down Texas’s law, but it also highlights the Court’s precarious balance. Chief Justice John Roberts, the eternal swing vote, could tilt the outcome in either direction. And the Court’s more conservative members — Justices Thomas, Alito, and Gorsuch — have shown little love for expansive interpretations of online freedom.

The Road Ahead: Privacy or Precedent?

A decision in this battle for internet privacy and free speech is expected by late June or early July 2025. The ruling will not only decide the fate of Texas’s law but could also set a precedent for how aggressively states can regulate online content under the guise of protecting minors.

If the Court sides with Texas, it would open the floodgates for other states to pass similar laws, emboldening lawmakers to push even further into regulating online speech and dismantling digital privacy. If the law is struck down, it could reaffirm the principle that the internet is still a space where First Amendment protections apply without compromise.

One thing is certain: the Supreme Court’s decision won’t just shape how we access content online — it will define who controls the internet in America. Will it remain a platform for free expression, or become yet another space where surveillance and censorship dictate what we can and cannot see?

By summer, we’ll all find out.

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Pub: 16 Jan 2025 19:35 UTC
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