Online Age-Check State Laws Run Into Constitutional Headwinds

Federal courts in two states recently paused the enforcement of laws requiring individuals to verify their age in certain online settings, in back-to-back decisions that complicate the policy debate swirling around how best to protect children online without running afoul of the US Constitution.

Litigants in Arkansas and Texas recently won temporary injunctions that halted enforcement of new laws mandating age-verification on certain social media platforms and on websites containing adult content, respectively. In both decisions, federal judges were convinced by initial arguments that the laws burdened access to free speech in violation of the First Amendment.

The individual court challenges play into a broader legal battle between the tech industry and state policymakers over new efforts to institute age-verification methods online. The clash raises fundamental questions about free speech and privacy—some of which have already been litigated and decided over the last two decades, attorneys told Bloomberg Law.

“So the question would become, if one law is sort of not going to be in effect, what happens with the other laws if there’s inconsistency?” said Melissa Krasnow, a partner advising clients on privacy issues for VLP Law Group LLP. “The company technically needs to comply with the other laws, but are they going to if in one state the challenge is successful?”

The Arkansas’ law requires age verification on social media accounts and parental permissions for setting one up for those under age 18. Dozens of other states looking to protect kids online—often citing concerns about teen mental health and exposure to inappropriate content—have considered a variety of approaches to age verification that differ on how age is verified and what data is retained.

NetChoice, the tech industry lobbying group representing giants such as Alphabet Inc.’s Google and Meta Platforms Inc., is leading the Arkansas challenge. Krasnow said she’s watching for NetChoice’s next legal moves as the group further establishes itself at the forefront of internet law issues after launching a litigation center earlier this year.

The group notched another notable legal victory Monday, winning a preliminary injunction to block the landmark California Age-Appropriate Design Code Act in federal court. The judge agreed with the NetChoice that the law requiring social media and online video gaming platforms to broadly expand privacy and safety protections for teens and younger children—including age verification—is likely unconstitutional on First Amendment grounds.

Meanwhile in Texas, the Free Speech Coalition has taken the lead. The group representing the adult entertainment industry is challenging the state’s requirement that websites offering adult content verify that users are 18 or older before providing access, arguing such laws endanger free speech and privacy.

A federal judge temporarily paused Texas’ law mandating age-checks to access adult content in late August over breadth and free speech concerns.

The coalition has filed similar lawsuits against Louisiana and Utah claiming that the laws risk revealing “exploitable personal data” about someone’s online viewing habits.

The setbacks for the Arkansas and Texas laws—both on free speech grounds—provide an early indication of how similarly structured laws fare against legal challenges and could inform how lawmakers approach regulating such ideas in the future, attorneys said.

Neither of the states’ attorney general offices responded to a request for comment.

Free Speech

NetChoice’s initial victory in Arkansas was buoyed by arguments that the state’s law unfairly burdened adults’ access to speech by requiring age checks for everyone on social media in the name of protecting children.

Even under intermediate scrutiny—a less rigorous test for determining the constitutionality of a law, advocated for by Arkansas—the state failed to pass First Amendment muster, said Howard Waltzman, Mayer Brown LLP’s regulatory practice co-chair who focuses on tech law and privacy compliance.

The judge appeared to prefer less restrictive methods such as individualized content filters, which aligns with precedent, Waltzman said.

“NetChoice is likely to succeed on the merits of the First Amendment claim it raises on behalf of Arkansas users of member platforms,” US District Judge Timothy L. Brooks wrote in his opinion. “The State’s solution to the very real problems associated with minors’ time spent online and access to harmful content on social media is not narrowly tailored.”

Brooks echoed conclusions about online age checks reached in the Supreme Court’s 2004 Ashcroft v. American Civil Liberties Union decision.

The outcome of kindred constitutional challenges in Texas and Arkansas will likely affect the direction taken by challengers to similar laws in California, Utah, and Louisiana. Lawmakers pushing age-checks in their states might also take heed and establish clearer definitions and obligations to avoid the same fate, Waltzman said.

Litigants in both cases accuse the laws of unfairly targeting certain platforms—like Pornhub in Texas and Twitter in Arkansas—while exempting others, like Reddit and President Donald Trump’s Truth Social in those respective states.

Underinclusion is a factor courts consider in deciding whether a law is narrowly tailored, said Vera Eidelman, a staff attorney at the American Civil Liberties Union, which filed a brief supporting NetChoice’s lawsuit.

“If the interest is protecting kids from online harms, and you’re not regulating platforms similar to the ones being age-gated, then there’s a question of whether that interest is accomplished,” Eidelman said.

Case Law

The orders granting temporary injunctions in Arkansas and Texas both cited decades-old case law. Attorneys including Eidelman and Waltzman expect those past decisions to influence questions raised about the constitutionality of newer laws.

The Supreme Court in 2004 upheld an injunction blocking the 1998 Child Online Protection Act in Ashcroft v. ACLU, for example, in part because it also required websites to verify age as a method of limiting minors’ access to adult content.

The high court decided COPA was overly vague to the point of violating free speech and privacy protections, writing that its content-based restrictions “have the constant potential to be a repressive force in the lives and thoughts of a free people.”

COPA’s failure followed federal lawmakers’ first unsuccessful attempt at protecting kids from internet porn, the Communications Decency Act of 1996, the bulk of which the Supreme Court struck down in 1997’s ACLU v. Reno.

Given that history, it’s “certainly possible” that age-check laws similar to those in Arkansas and Texas won’t survive legal challenges, Eidelman said.

“They’re robbing users of anonymity while raising privacy and security concerns,” she said. “The laws burden adult speech by purporting to protect kids.”

— With assistance from Andrea Vittorio.

To contact the reporter on this story: Skye Witley at switley@bloombergindustry.com

To contact the editors responsible for this story: Adam M. Taylor at ataylor@bloombergindustry.com; Tonia Moore at tmoore@bloombergindustry.com