https://www.theverge.com/2023/8/31/23854369/texas-porn-age-verification-law-blocked-judge
A rebuke to a broad online age-gating push.
I guess it's for the best to keep it simple, but I kinda hate how to get anything done, we have to label it free speech. It's like we can't manage to make laws to reasonably keep people from imposing religious restrictions on the population so we have to classify everything as speech.
I'd rather we use the ninth amendment more often:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
This should be sufficient to defend a right to privacy, which online ID/age verification laws necessarily violate.
The current SC bench pretends that amendment doesn't exist. The only amendments they care about are the 2nd amendment and the 1st, when it suits them.
The ninth amendment basically means that rights don't need to be mentioned in the Constitution to exist, and that has basis in the Declaration of Independence:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
Part of a right to liberty is a right to privacy, and neither are expressly mentioned in the Constitution yet are assumed to exist by the founders. There was even a fight in the early days of the US about whether we needed a Bill of Rights because rights are inherent and don't need to be enumerated.
That brings us to ID laws. If I'm forced to ID myself at every turn, am I truly free? In many states (including my own), I am not required to ID myself to the police unless I'm suspected of commiting a crime (and there's a legal standard there), and even then, I only need to provide my name and address (though the officer made demand my age and explanation of my actions as well). I don't need to provide my ID or any proof.
The only time I need to provide proof of ID (or proof of age) is when:
I am not required to present ID to buy age-restricted content online (e.g. video games). I am not required to present ID to buy things that are legal in another country but not my own (e.g. alcohol is legal in Germany at 16). I am not required to present ID to consume age-restricted substances in my own home, and I am allowed to provide certain age-restricted substances to my children for certain purposes, including religious observance or medical use (up to my discretion, no need to prove anything). I am not aware of any laws restricting that content I can show my children in my own home.
So in general, I do not have to present ID or ask permission for anything I do in my own home. So requiring ID to view a website is an absolute invasion of that privacy that I reasonably expect in my own home. Websites can absolutely choose to verify ID if they want, I just refuse to allow the government to require that. There is all kinds of case law protecting people when they are inside their own home, such as the Castle Doctrine (I can use force to defend my home), the requirement for warrants by police to enter a home (even if a suspect in pursuit enters their own home), and so on.
So no, I reject this type of law under my assumed right to privacy and liberty. I refused to be tracked for doing things that the government doesn't like within my own home.
That's because free speech, by design, is one of the more important defenses against government overreach.
Part of the first amendment that's often overlooked/not talked about is freedom of religion, and separation of church in state. The first line is separation of church and state.
Yeah I agree, it's tricky though right? There's a defined difference between religion and religious agenda. I can't force someone to take a blood transfusion, unconstitutional, that's fine. But when politicians use religious agenda as a campaign promise, no one can be allowed a blood transfusion. Now it's no longer religion or separation. They're just pandering to the wants of the religious base. Supreme Court waking up one day and going You know what screw precedent, that should have got them out right away. But our government is not designed to be protected from that kind of thing.
I suppose the way to look at it is, everyone's allowed whatever religion they want, as long as they don't expect everyone else to agree with it or conform to their worldview. Their right to believe, and you're right not to believe, are equal, and you're right not to be converted and they're right not to be challenged are also equal.
Basically everyone should just leave each other alone.
If they are making laws due to a religious agenda, I would argue that goes against the first amendment.
Good writeup on this from Techdirt: https://www.techdirt.com/2023/08/31/court-says-texas-adult-content-age-verification-law-clearly-violates-the-1st-amendment/
This is the best summary I could come up with:
A federal judge has blocked a Texas law that would require age verification and health warnings for pornographic websites, calling it unconstitutional and poorly defined.
In a preliminary injunction decision released today, Judge David Ezra ruled in favor of the Free Speech Coalition, an adult industry trade association.
Ezra, a Ronald Reagan-appointed district judge, said HB 1181 had numerous problems that could limit internet users and adult content creators’ First Amendment rights.
It also draws on the Supreme Court’s ruling in Reno v. ACLU, which struck down most of the Communications Decency Act, a federal law regulating online pornography.
HB 1181 applies restrictions to sites that are deemed to be composed of one-third pornographic content — a bar similar to that of other states like Louisiana, which has an age-gating rule that went into effect around the start of 2023.
And finally, the ruling objects to Texas’ requirement that sites post factually debatable disclaimers about the alleged dangers of pornography, calling it unconstitutional compelled speech.
The original article contains 475 words, the summary contains 165 words. Saved 65%. I'm a bot and I'm open source!
If not for the fact that I know conservatives are going to use it as a stepping stone to ban all porn in the future, I'm honestly fine with a porn age verification.
Maybe if we had some good way of verifying age without literally sending them a picture of our ID and saying, "I'm gonna look at porn now, okay?"
No one is going to do that, because that doesn't feel safe. That information will be stolen and used for blackmail.
My concerns beyond that are that it would force what kind of porn you watch to be traceable. And just because what you like is legal now doesn’t mean it’ll stay that way. Stuff like sadomasochism that’s already controversial as heck all the way to stuff like gay porn. If such things become illegal I don’t trust that “it was legal at the time” will be seen as a good defense.
And beyond that the “warning” they were ordered to put up is blatantly false and fucked up
And even if it is legal, you probably don't want that information to be made public when the site inevitably has a breach.
Agreed. If not for the fact that these laws are obviously just a gateway to more porn restrictions, I'd support a strict pornography age verification. But because it's coming from only the far right conservative group, I know where things will end up if we give an inch. As for your porn being traceable, it already is. Your ISP/VPN sees all of your internet traffic, and you'd be a fool to think that the government doesn't have access to that info.
Your isp doesn't know it's you. It could be anyone on your network. And if you have to identify yourself the government gets involved right away
And I don't want them to assume that it's an adult, because I have young kids at home. I also don't want them to be able to inspect packets to look for an authorization token or something, because that means my traffic isn't secure.
I hate everything about this. If they force verification, I will be installing a VPN for my household to a place that doesn't require it, because I'd rather my kids watch porn than reveal personally identifiable information online. I trust my kids a lot more than I trust websites.
There's a big difference between identifying yourself to a neutral ISP versus identifying yourself to the government. In general, I'm not that skeptical of government, but this is one issue where I worry about the right wing loonies getting their way. God help us if it's ever criminalized
Agreed. The level of access children have to pornography is likely something that should be better controlled. We need to really think about how to solve the problem while still allowing people to use the services and maintain privacy.
This is definitely one of those situations imo where such responsibility falls squarely on parents and inviting the government to handle such a thing will create far more issues than it would resolve.
You are correct, parents should be involved. Also the tools parents are given to control access should be standardized, easy to use, and enforceable.
I don't know about anyone else but my ISP auto blocks pornography unless the account holder goes into the settings and enables it. They also block piracy sites, which again you can just disable the block in the settings, so I don't know what the point in that is.
It's not a great solution because it's either all or nothing but the options are already there if a little poorly implemented.
Similar things can be said about alcohol, nicotine, driving a car, etc., but society recognizes that not all parents are responsible enough to make those decisions and have put up laws to protect the broader interests of society. It would be great if all parents could have a conservation about the harm that pornographty consumption has on development, but the fact that most fathers can't even talk to their daughter about their periods (or mothers about their son's problems) tells me that this probably isn't going to happen.