Online Age Verification (Part III): Select Constitutional Issues

Online Age Verification (Part III): Select Constitutional Issues

Legal Sidebari

Online Age Verification (Part III): Select
Constitutional Issues
August 17, 2023
This Legal Sidebar is the third installment in a three-part series on efforts to require online services to
verify the ages of their users. Part I provided an overview of elements common in age verification laws.
Part II discussed constitutional principles that may be relevant in assessing the constitutionality of age
verification laws. This part applies the principles discussed in Part II to the elements of age verification
laws discussed in Part I and offers considerations for Congress on the issue of implementing federal laws
imposing age verification requirements.
Constitutional challenges to age verification laws may raise several issues. Many of the questions
regarding the constitutionality of age verification laws may concern whether such laws are sufficiently
narrow to avoid inhibiting more speech than necessary. The degree of tailoring required may vary
depending on whether a given law is content based or content neutral. In both circumstances a law’s
constitutionality would depend on several factors, including (1) the strength of the government’s interest,
(2) the amount of protected speech that the law directly or indirectly restricts, and (3) the availability of
less speech-restrictive alternatives.
Whether a Law is Content Based or Content Neutral
As discussed in Part II, laws restricting speech are subject to different legal standards depending on
whether the laws target speech based on its content. Age verification laws focused on pornography or
“material that is harmful to minors” are likely content based. Whether laws targeting social media are
content based may be a more challenging question. Supreme Court case law suggests that speaker-based
restrictions on speech—for example, laws that target particular websites—are not per se content-based
restrictions. Because social media websites can host a variety of material, a law that broadly defines social
media may not regulate these sites based on the substance of material that they host. Laws with content-
based exceptions—such as Utah’s social media law, which includes numerous exceptions for websites
that provide certain types of content—may be subject to First Amendment challenges on the basis of their
exceptions even if the rest of the law is deemed content neutral.
A law that imposes requirements based on a website’s target audience or user demographics may be more
likely to be deemed content neutral, though this is not a foregone conclusion. California’s CAADC
requires age estimation for any “online service, product or feature likely to be accessed by children.” In a
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brief arguing for a preliminary injunction to prevent enforcement of the CAADC, tech industry group
NetChoice argues that the CAADC’s age verification requirements are content based because they require
a different degree of certainty in estimating a user’s age depending on the risks posed by a particular
website. Challengers may also argue that the law applies only to areas of the internet “likely to be
accessed by children,” which draws content-based distinctions based on how that term is defined in the
CAADC. Proponents of age verification laws might counter that determining whether material is “likely
to be accessed by children” does not require reference to the material’s substantive message and therefore
is content neutral under the Supreme Court’s decision in City of Austin.
Identifying the Government Interest
Both content-based and content-neutral laws must advance a government interest—either a “compelling”
interest for a content-based law or an “important” interest for a content-neutral one. The Supreme Court
has affirmed that government has an interest in the welfare of children, but it has required governments to
“specifically identify an ‘actual problem’ in need of solving,” rather than relying on an “abstract” interest
in protecting children. In a case involving a state ban on the sale of violent video games to minors, the
Supreme Court determined that a “predictive judgment,” without proof that violent video games had a
negative effect on children, could not justify government regulation. Perhaps to fortify their legislation
against constitutional challenges, some officials in states with age verification laws have stressed the
research-backed harms their laws address—such as negative mental health effects among teens resulting
from social media use.
Impacts on Protected Speech
Whether a law is narrowly tailored or not depends in part on the amount of protected speech impacted by
the law. Age verification laws may impact the free speech rights of at least three groups: website
operators, adult users, and minor users.
Speech Rights of Website Operators
Many websites affected by age verification laws—such as social media websites—host content that is
provided by website users rather than the website itself. Website operators may argue that this hosting
activity is itself protected expression and that age verification laws discourage hosting activity, both by
discouraging operators from hosting particular content (such as content that the operator believes may be
“harmful to minors”) and by discouraging operators from hosting content altogether if the costs of
implementing age verification are too high.
Whether hosting third-party content online is protected by the First Amendment’s Free Speech Clause is a
continuing topic of debate in federal courts. Two appellate court decisions in cases challenging state
social media laws reached opposite conclusions on this question. As discussed in this CRS Legal Sidebar,
the Eleventh Circuit held that a social media platform engaging in content moderation exercises “editorial
judgment” subject to First Amendment protection. By contrast, the Fifth Circuit held that social media
platforms do not exercise editorial judgment, and that content moderation decisions standing alone are not
protected speech.
The Supreme Court has not directly addressed this question, though in a recent decision the Court held
that a website designer engages in protected speech when designing a website, even when the website
incorporates third-party material. The Supreme Court’s decision involved a designer engaged in custom
website design work, which may distinguish the designer from an operator (like a social media platform)
that provides an “ordinary commercial good” on the same terms to all users. The two cases challenging
state social media laws have both been appealed to the Supreme Court, so the Court may choose to
address the issue in more detail.

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Speech Rights of Adults
Much of the material targeted by age verification laws is protected speech when accessed by adults. With
respect to pornography, sexual content that depicts adults but is not legally obscene is protected speech
with respect to adults even if it might qualify as speech “harmful to minors.” With respect to social media,
the Supreme Court has recognized that social media enables individuals to “engage in a wide array of
protected First Amendment activity.”
A law may burden adult speech even if it specifically targets material accessed by minors. The Supreme
Court’s decision in Reno struck down the Communications Decency Act (CDA) primarily on the basis
that the law would impermissibly burden adult speech. The reasons for believing the CDA would burden
adult speech may apply to contemporary age verification laws. The Reno court determined that the CDA’s
ban on transmitting indecent material to minors would burden adult speech “in the absence of a viable age
verification process,” because distributors of material would fear liability for transmitting material to
minors. The Court also observed that a website operator’s decision to adopt age verification may block
adults from lawful content if the adults lack material required for verification, such as a credit card.
Lower courts have suggested that age verification may further burden adult speech by deterring adult
users who are not willing to provide identifying information to access potentially embarrassing content. In
a different context, the Supreme Court held that a requirement that cable television operators block sexual
programming unless a viewer requests access to the programming in writing would “restrict viewing by
[cable] subscribers who fear for their reputations” should their request be made public.
Speech Rights of Minors
Minors, like adults, possess free speech rights under the First Amendment. The Supreme Court has
repeatedly held that, except in “relatively narrow and well-defined circumstances,” government has no
more power to restrict speech for minors than it does for adults. Laws that target social media websites
may fall outside these “narrow” circumstances. The Supreme Court has struck down other laws that
attempted to restrict the dissemination of protected speech to minors, including laws involving violent
video games and movies with nudity. Social media allows minors to access a broad array of protected
speech, meaning a law restricting minors’ access to social media may have a greater impact on minors’
speech rights than narrower laws the Supreme Court has previously struck down.
Pornography age verification laws may also impact minors’ access to constitutionally protected material.
State laws that seek to mandate age verification for pornography often apply to “material harmful to
minors,” a term that tracks the language used by the Supreme Court in Ginsberg v. New York and Miller v.
California. Although the Supreme Court has upheld restrictions on physical distribution of material
harmful to minors, federal appellate courts have raised issues with such restrictions as they might apply
on the internet. For example, the Third Circuit held in multiple decisions that COPA’s definition of
“material that is harmful to minors” was unconstitutionally vague and overbroad.
The Miller definition of obscenity depends on whether “the average person, applying contemporary
community standards” would find that the material in question “appeals to the prurient interest.”
Definitions of material “harmful to minors” incorporate this language and specify that the question is
whether someone “applying contemporary community standards” would find the material “appeals to the
prurient interest” of minors. In cases that involve physical distribution of offensive material, the relevant
“community standards” are those of the material’s recipient. The Third Circuit observed that applying a
“contemporary community standards” requirement to internet communications, which are typically
available worldwide, would subject all material on the internet to the standards of “the most puritanical
communities.” The Supreme Court has not decided how to apply “contemporary community standards” to
internet communications, beyond concluding that the use of “contemporary community standards” alone
did not render COPA unconstitutional. Some Justices have expressed support for a nationwide

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“community standard,” while other Justices have suggested that the standards should depend on where
material is received, as is the case with laws that do not involve the internet.
Efficacy and Alternatives
Whether a law is “narrowly tailored” depends on how effectively the law accomplishes its legislative
purpose and the availability of less restrictive alternatives. The Supreme Court has looked to both factors.
Addressing the effectiveness of age verification in 1997, the Reno court observed that the government had
not proffered evidence that age verification would “actually preclude minors from posing as adults.” In
2004, in Ashcroft, the Court observed that promoting the use of blocking and filtering software would be
“less restrictive” and “likely more effective as a means of restricting children’s access to materials
harmful to them” than criminalizing distribution of harmful material.
The internet looks very different in 2023 than it did in 1997, or even 2004. How changes in technology
might impact a court’s narrow tailoring analysis—potentially in ways that distinguish age verification
laws from laws previously declared unconstitutional—may be the biggest open question in assessing the
constitutionality of new laws. If age verification technology has grown more effective, courts may be
more willing to accept that requiring age verification can further a government interest in protecting
minors. Likewise, if age verification solutions have become cheaper and more widely available, adopting
such solutions may place less of a burden on website operators. With respect to alternatives, federal and
state lawmakers introducing age verification legislation have attempted to stress the shortcomings of
available alternatives. For example, a bill from the 117th Congress that would have required age
verification for certain websites discussed at length the ineffectiveness of blocking and filtering software
to prevent minors’ access to pornography.
Age verification laws may be less restrictive than the CDA or COPA. The Reno Court listed potential
means of narrowing the CDA, including “making exceptions for messages with artistic or educational
value, providing some tolerance for parental choice, and regulating some portions of the Internet—such as
commercial Web sites—differently from others.” State age verification laws have incorporated these
means to varying degrees. For example, Louisiana’s pornography age verification law applies only to
commercial entities and covers only material that “lacks serious literary, artistic, political, or scientific
value for minors,” and Utah’s social media age verification law allows minors to use social media with a
parent’s consent.
Considerations for Congress
State age verification laws are already facing legal challenges in court, and any federal effort to impose
age verification requirements on website operators would likely face First Amendment challenges as well.
A law’s ability to withstand challenges will depend principally on whether the law is content based or
content neutral and how narrowly tailored the law is. Even if a law is content neutral, it may pose
significant First Amendment issues. For example, a law that targets social media may be less clearly
content based than a law that targets pornography, but minors likely have a greater interest in accessing
social media than in accessing pornography. Questions of narrow tailoring will likely concern how much
protected speech an age verification law affects and how effective age verification is at achieving its
legislative purpose in comparison to alternatives. The changing technological landscape might distinguish
modern age verification requirements from similar laws introduced more than 20 years ago.
In addition to technological alternatives, courts may consider legislative alternatives, including some that
Congress has already enacted. The Children’s Internet Protection Act conditions federal funding for
schools and libraries on the installation of blocking and filtering software, and the Supreme Court held
that this law does not violate the First Amendment. Another law, the Children’s Online Privacy Protection
Act, prohibits website operators from collecting children’s personal information without verified parental

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consent. There are no reported cases considering whether this law complies with the First Amendment.
Congress may consider whether these approaches could sufficiently address the harms that legislatures
have sought to address through age verification because these alternative approaches might raise fewer
constitutional concerns.

Author Information

Eric N. Holmes

Attorney-Advisor

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