Free Speech Coalition v. Colmenero

The American Civil Liberties Union joined the Foundation for Individual Rights and Expression and a host of other organizations* in filing a friend-of-the-court brief in support of a challenge to Texas H.B. 1181. If it goes into effect, this legislation would require websites that host adult content, from pornography to some sexual health materials, to verify the ages of all users, including adults, before they can access legal content online. It will also compel websites that carry lawful, First Amendment–protected sexual material to post three disclosure statements that reflect the state’s views about pornography, including claims that it is addictive and mentally and physically harmful.

H.B. 1181 burdens the free speech rights of all users who seek to access the regulated sites, robbing them of anonymity and chilling privacy- and security-minded people from accessing the sites at all. If allowed to go into effect, the law will require Internet users to provide personal information, such as a driver’s license or photo ID, to companies or applications that purport to be able to verify their ages. This may block some people—for example, those who lack government identification or whose age is mis-identified by the relevant technology—from accessing the sites altogether.

Courts have repeatedly held such age verification requirements unconstitutional, recognizing the crucial role anonymity can play online, including in the ACLU’s seminal case, Reno v. ACLU. Where a less restrictive alternative exists—for example, users’ voluntary installation of filters on their own devices—the government cannot impose age verification on adults in the name of protecting children.

H.B. 1181 also violates the Constitution for the independent reason that it would force Internet companies that host lawful sexual material to convey, by way of three required disclosure statements, the state’s view of such content. The government cannot make private speakers into mouthpieces for its preferred message.

Free Speech Coalition v. Colmenero is one of several recent cases in which the ACLU has urged courts to reject age-verification schemes that would burden the free speech rights of Internet users, part of the organization’s long tradition of defending online free expression. This amicus brief was filed jointly by the ACLU, the Center for Democracy & Technology, the Electronic Frontier Foundation, the Foundation for Individual Rights and Expression, the Media Coalition Foundation, and Techfreedom.