A broad coalition of digital rights groups is asking a federal appeals court to preserve an injunction prohibiting Louisiana from enforcing a new law that requires social platforms
to verify users’ ages, and prohibits platforms from allowing minors under 16 to create or maintain accounts without parental permission.
The statute “violates the First
Amendment rights of minors and adults to access and engage in protected speech online,” the American Civil Liberties Union, Electronic Frontier Foundation, Wikimedia Foundation and others argue in a
friend-of-the-court brief filed Tuesday with the 5th Circuit Court of Appeals.
They add that if the law takes effect “all users will lose their ability to speak anonymously
online and face increased risks of privacy invasions and data breaches.”
The civil liberties watchdogs are weighing in on a challenge to the law by the tech group NetChoice,
which argued that the law unconstitutionally restricts speech.
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Last year, U.S. District Court Judge John deGravelles in the Middle District of Louisiana sided with NetChoice
and issued an injunction barring the state from enforcing the law against NetChoice members including Meta Platforms, Nextdoor, Pinterest, Reddit, Snapchat, X, YouTube, Tumblr, Discord and Amazon’s
Twitch.
Louisiana Attorney General Liz Murrill and the state Department of Justice recently asked the 5th Circuit Court of Appeals to reverse that ruling, arguing
that the law is comparable to statutes regulating minors’ consumption of alcohol or cigarettes.
“Age verification and parental consent are longstanding safeguards to protect
minors in contexts involving heightened risks,” Louisiana argues. “Such measures are commonly required for activities like purchasing alcohol or tobacco, gambling, getting tattoos, and accessing
pornography.”
They added that evidence in the case showed social platforms carry potentially harmful content despite their efforts to remove such material.
“In just six months of 2023, Facebook alone saw at least 2.7 billion spam posts, 28 million posts containing antisemitic, racist, or other derogatory content, and 27 million violent or
graphic posts,” the state officials argued.
The digital rights advocates counter that the presence of “upsetting” material on social media doesn’t give the government grounds
to restrict access by minors.
“The presence of upsetting content is not unique to social media and, just as the government could not ban minors from reading newspapers (which
contain distressing news) or showing up at town hall meetings (which might have heated public debate), the government cannot ban minors from accessing protected expression online simply because of its
communicative impact,” the watchdogs argue.
The groups add that age verification creates security risks for users.
“The personal data that platforms may
be required to collect is sensitive and often immutable,” they write. “Whereas usernames, passwords, and even credit card information can easily be changed, the types of information used in age
screens or age verification such as date of birth, name, biometrics, and home address are much more permanent.”
They add: “Because all online data is transmitted through
intermediaries, the information a user shares to verify identity or parental relationship can be transmitted beyond the site or its age verification providers.”
NetChoice late
last week also urged the 5th Circuit to uphold the injunction. The group pointed to the Supreme Court’s 2011 decision striking down a California law that would have banned the sale of violent video
games to minors, without parental consent.
“‘Minors are entitled to a significant measure of First Amendment protection,’ and the state’s power to protect minors ‘does
not include a free-floating power to restrict the ideas to which children may be exposed,'” NetChoice wrote, quoting from that 2011 ruling.
Louisiana officials are expected to
respond by June 16.
NetChoice has challenged social media restrictions in numerous other states including Arkansas, Georgia, Florida, Mississippi, Utah, Ohio, South Carolina,
Nebraska and Tennessee. District court judges have blocked many of those measures, but state attorneys general have appealed. So far, at least two appellate courts — the 5th Circuit Court of Appeals
and 11th Circuit Court of Appeals — have sided with state officials and allowed restrictions in Mississippi and Florida to take effect, at least temporarily. The 5th Circuit also recently allowed
a Texas law that requires parental consent for app downloads to go into effect.
