In NetChoice V. Murrill, The Copia Institute Asks The Fifth Circuit Not To Keep Ignoring The First Amendment

from the saving-the-internet-from-the-fifth-circuit dept

It seems hardly a day goes by when another state doesn’t try to keep young people off the Internet. These attempts not only violate their First Amendment rights to interact with lawful speech, but everyone else’s as well, because the things platforms would need to do to comply with these laws inevitably impinge on everyone else’s rights to interact with online expression freely.

Fortunately challenges have been brought against many of these laws, and most have even been enjoined. Unfortunately, however, many of these injunctions have wound up appealed to the Fifth Circuit, which seems to be where the First Amendment goes to die. Even just on the online speech front there was NetChoice v. Paxton from a few years ago, challenging a social media regulation law, where the Fifth Circuit summarily ignored clear precedent in order to uphold the law, which the Supreme Court—yes, this Supreme Court—then had to undo with its combined Moody v. NetChoice decision and some shadow docket action (that challenge still lingers, waiting for the Fifth Circuit to eventually take another swing at it). And then just last year the Fifth Circuit undid two injunctions in age-gating laws in Free Speech Coalition v. Paxton and NetChoice v. Fitch, which this time the Supreme Court did not fix, and just last week did the same to the Texas App Store law, letting it go into force despite the injunction the district court had earlier granted in CCIA v. Paxton.

With the challenge to Louisiana’s unconstitutional age-gating law now before it in NetChoice v. Murrill, it seemed worth trying to see if the court could at last be convinced to join most other courts that have considered age-gating laws and see the constitutional infirmities with them, and so this week the Copia Institute—the think tank arm of Techdirt—filed an amicus brief to try to do so. In it we made three basic points: age-gating laws like Louisiana’s actually harm young people, they also harm everyone else, and, if this one were allowed, it would open the door to lots of other similar laws that would cause even more harm.

With regard to young people themselves, we first reminded that even young people have First Amendment rights, and that the Supreme Court has long held that the state has no role to play in deciding what ideas are suitable for them to encounter, which Louisiana is trying to do with this law. Even its tortured definition of a social media platform, which manages to exclude plenty of social media platforms (and, as the district court found, is unconstitutionally vague about which are covered or not), shows the state being selective as to which ideas were acceptable for young people to encounter.

Furthermore, as Australia’s experience with its social media ban for young people is illustrating, cutting young people off from social media causes explicit harm. Already there is evidence of young people experiencing isolation and being cut off from news, two ways young people are being hurt, which Louisiana now wants to risk for young people who they claim they are ostensibly trying to help. Louisiana’s law conditions access to covered social media platforms on parental consent, but it ignores that not every young person lives in a safe home with a caring parent who could give that consent. In fact, there is all sorts of offline harm that young people may be facing, including at home, which being cut off from social media means now being cut off from the help they may need to deal with it.

They also would face increased risk of identity theft from having to upload sensitive documents to try to verify their identity, as would everyone who now needs to provide them in order to be able to access any covered social media platforms. In its brief Louisiana argued that its age requirements were “nothing new, nothing costly, and nothing that compromises privacy.” But it is actually all three. As we explained, online age verification is nothing like the offline age verification we have used for such things as refusing to sell young people cigarettes—in general, young people could still enter the store and buy other things. We also noted the elevated identity theft risk, which news story after news story about database hacks shows is not a hypothetical concern. And then there is the privacy angle, because there is no way to ask, “How old are you?” without also inherently asking, “Who are you?” Given that the right of free expression also includes the right to express oneself anonymously, which the Supreme Court has recently emphasized, the latter is a question no one should be obligated to answer to be able to speak, and yet, with a law like Louisiana’s, everyone, young people and adults, would have to.

It’s also not just Louisiana’s law that we need to worry about. The problem is that if the courts can look past the constitutional problems with this one, then it can look past the constitutional problems with any of them, including ones that are even more onerous or restrictive. So even though Louisiana’s may not currently reach every user of every platform, it offers no comfort to anyone, for several reasons, with one of them being that even if the law just affects some social media platforms, it will still have chilling effects on anyone who might have used them for any purpose. As we explained to the court, the Copia Institute is in the business of expression and uses social media platforms to spread its expression. But if a law like Louisiana’s can go into effect, it could eliminate those platforms, large swaths of their users, or even the ability of the Copia Institute to use them at all. In other words, even though we write about age-gating laws, if they are allowed to go into effect we may lose the ability to tell anyone.

It’s important that laws like these remain enjoined, but maintaining a preliminary injunction is a separate area of concern raised by the Fifth Circuit’s recent jurisprudence, which keeps undoing sensible preliminary injunctions of laws like these unconstitutionally burdening speech rights. First, it should be enough for plaintiffs to anticipate that they will be harmed by such laws and seek preliminary relief enjoining them before they have had to directly experience such obviously inevitable expressive harm. Furthermore, courts are supposed to consider several factors in deciding whether to grant a preliminary injunction, including the likelihood of success of one of the parties and the risk of irreparable harm if the injunction is not granted. As even Justice Kavanaugh telegraphed in NetChoice v. Fitch, NetChoice is also likely to prevail in its constitutional challenge here.

But more importantly, the potential harm of perhaps unduly enjoining this law while the litigation challenging it continues pales to the harm of not doing so. If Louisiana’s law remains enjoined the status quo will be preserved, and no one will be any worse off than they were yesterday, last week, last year, or last century. As we also pointed out, the online interconnectivity of social media has existed in some form for upwards of forty years, dating back to pre-Internet dial-up bulletin board services in the 1980s. Generations of young people have grown up online since then and turned out fine.

But more importantly: the Constitution does not have an off switch. If these laws really do offend constitutional rights—as they clearly do—then they should not be able to offend them for even a moment. The Constitution protects rights every hour of every day, and there is no constitutional mechanism that allows them to be unilaterally taken away from everyone, even temporarily.

Filed Under: 5th circuit