Advocates of these age verification laws have long argued that these bills are common sense. Judge’s are ruling them as unconstitutional.
One of the things advocates of age verification laws argue in Canada is that such approaches to the internet is common sense. In the process, they argue that other countries are pushing similar laws and it’s somehow up to Canada to “catch up” to other countries. Critics, meanwhile, know better and point out that such approaches are unconstitutional and would cause considerable harm to internet digital rights. Civil rights organizations have called on the government to put a stop to this legislation.
The concerns echos our analysis from last year where the bill presented a threat to privacy, security, and freedom of expression. MP’s responded to the legislation by having no clue how it would all work and, instead, saying that they would just refer it to committee to figure out the fools errand of figuring it all out. Advocates for the legislation resorted to literally making up benefits of the legislation. This includes falsely claiming that the bill would protect against child luring and arguing that the Liberal party is out of step with the rest of the world for being against this legislation. It was all fabricated and easily debunked defences of the legislation.
Advocates have effectively said that if other countries jump off a cliff, then that means Canada should also jump off of a cliff. Of course, the problem is that this is a terrible idea. Recently, we learned that another age verification law has been ruled unconstitutional. This revolves around the Ohio parental consent/age verification law. From TechDirt:
Last month we wrote about Netchoice suing Ohio over its “Parental Notification by Social Media Act,” in which I filed a declaration highlighting how problematic the law would be for a site like Techdirt. By the time we’d finished the article about the lawsuit, a federal judge had already granted a temporary injunction, blocking the law from going into effect. The law was incredibly problematic for many reasons, but like some other laws, the whole idea was to make websites get “parental consent” for kids using social media.
As the original complaint noted, this law violated the constitution in multiple ways:
First, the Act imposes blanket parental-consent requirements for minors to access and engage in all manner of protected speech across a wide swath of websites. Courts have not hesitated to invalidate similar efforts to limit the speech by and to minors. E.g., Brown, 564 U.S. at 799 (rejecting parental-consent requirements for violent video games). Indeed, the Supreme Court has rejected the idea that the government has “the power to prevent children from hearing or saying anything without their parents’ prior consent.”….
Second, the First Amendment problems are heightened here because the Act is unconstitutionally both content-based and speaker-based and baldly discriminates among online operators based on the type of speech they publish. For example, the Act exempts “established and widely recognized media outlet[s], the primary purpose of which is to report news and current events.” Ohio Rev. Code § 1349.09(O)(2). Yet it regulates media outlets that are not “established” or “widely recognized” and mixed-purpose outlets that cover news and current events in addition to other types of media….
Third, the Act is unconstitutionally vague. Its central coverage provision applies to websites that “target[] children, or [are] reasonably anticipated to be accessed by children.” Ohio Rev. Code § 1349.09(B)(1). Websites have no way to know what this means.
And now the judge overseeing the case, Judge Algenon Marbley, has agreed. This might not have been a surprise, given the quickness of the Temporary Restraining Order, but the reasoning is laid out in more detail in granting the preliminary injunction effectively killing the law as unconstitutional.
Ohio, in its response, tried to claim that this law had nothing to do with speech, but was about “the right to contract.” This is something we’ve seen in many of these laws. The states argue “this isn’t about speech, it’s about privacy,” or “it’s about data,” or “it’s about contract,” or “it’s about safety.” None of these excuses should fly, and thankfully, they don’t here either.
Despite the “challenges of applying the Constitution to ever-advancing technology,” Brown v. Ent. Merchants Ass’n, 564 U.S. 786, 790 (2011), the First Amendment implications of the Act come into focus when social media operators are thought of as publishers of opinion work—a newspaper limited to “Letters to the Editor,” or a publisher of a series of essays by different authors. The analogy is an imperfect one—social media operators are arguably less involved in the curation of their websites’ content than these traditional examples. But the comparison helps clarify that the Act regulates speech in multiple ways: (1) it regulates operators’ ability to publish and distribute speech to minors and speech by minors; and (2) it regulates minors’ ability to both produce speech and receive speech. And as NetChoice points out, this Court is unaware of a “contract exception” to the First Amendment. Indeed, neither party references any such authority. Like many of NetChoice’s member organizations, a publisher stands to profit from engagement with consumers. That an entity seeks financial benefit from its speech does not vitiate its First Amendment rights.
The article goes on to explain how the law was essentially picked apart by the judge and concludes that the new law is not going into effect as a result of this.
If we are going to be talking about international examples of age verification laws when discussing the merits of the Canadian example, this is the very thing we should be focused on. All of the efforts I’ve seen to say how other countries are pushing these laws revolve around how other jurisdictions are tabling these laws. In its essence, it’s basically policy laundering where if lawmakers in one jurisdiction were talked in to pushing these laws, then that automatically means it’s a good idea. As the Ohio example clearly shows, just because it is pushed by lawmakers doesn’t automatically mean it’s a good idea. In fact, it is very clear that such laws are terrible ideas from the outset.
In fact, this is isn’t even the first time that such a law was declared unconstitutional. Last year, Arkansas age verification law was also ruled unconstitutional for violating the 1st amendment. With other efforts out there being formulated, it probably won’t be the last time we see such bills being ruled unconstitutional.
The flaws of those bills are certainly found in Canada’s age verification law here. While politics may ultimately rule the day, overriding basic common sense, the hope I personally have is that the courts actually put a stop to this madness. It would be the next best hope if Canada’s equally terrible legislation passes in the first place.
Drew Wilson on Twitter: @icecube85 and Facebook.
