Judge Robert Pitman said that it violates the First Amendment and is "more likely than not - unconstitutional."
The Act is akin to a law that would require every bookstore to verify
the age of every customer at the door and, for minors, require parental
consent before the child or teen could enter and again when they try to
purchase a book.
We enjoy 1A protections of speech and assembly. When we consider our rights, the productive, default position is that government is told no (when it wants to restrict us).
For those curious about the "consistent principle of law" here - SCOTUS wrestled with nearly exactly this question in Free Speech Coalition v. Paxton earlier this year, and effectively emboldened more of these laws.
Previously the Fifth Circuit had relied heavily on Ginsberg v. New York (1968) to justify rational basis review. But Ginsberg was a narrow scope - it held that minors don't have the same First Amendment rights as adults to access "obscene as to minors" material. It wasn't about burdens on adults at all. Later precedent (Ashcroft, Sable, Reno, Playboy) consistently applied strict scrutiny when laws burdened adults' access to protected speech, even when aimed at protecting minors.
In Paxton the majority split the difference and applied intermediate scrutiny - a lower bar than strict - claiming the burden on adults is merely "incidental." Kagan had a dissent worth reading, arguing this departs from precedent even if the majority won't frame it that way. You could call it "overturning" or "distinguishing" depending on how charitable you're feeling.
On 1A: The core concern isn't that age-gating exists - it's that mandatory identification to access legal speech creates chilling effects and surveillance risks that don't exist when you flash an ID at a liquor store.
Note: IANAL but do enjoy reading many SC transcripts
I also recommend that podcast but I would suggest balancing it with '5-4' podcast or 'strict scrutiny'. Sara and David do a very good job explaining both sides and the law but there are times I think advisory opinions could spend more time on the arguments made by the other side or the weaker portions of their supported view.
The technical implementation is messy too. Most age verification systems either don't work well or create massive privacy risks by requiring government ID uploads.
It is difficult to square the notional unconstitutionality of this with the fact that the exercise of other Constitutional rights have long been conditional on age. This just looks like another example.
What is the consistent principle of law? I am having difficulty finding one that would support this ruling.
Laws limiting fundamental constitutional rights are subject to "strict scrutiny", which means they must be justified by a compelling government interest, narrowly tailored, and be the least restrictive means to achieve the interest in question. One might reasonably argue even that standard gives the government too much leeway when it comes to fundamental rights.
Age restrictions narrowly tailored to specific content thought to be harmful to minors have often been tolerated by the courts, but something broad like all book stores, all movie theaters, or all app stores violates all three strict scrutiny tests.
I'm interested: the only one that I can think of that has some limitations is the second amendment? Are there others?
As to the first amendment: Although not equal to that of adults, the U.S. Supreme Court has said that "minors are entitled to a significant measure of First Amendment protection." Only in relatively narrow and limited circumstances can the government restrict kids' rights when it comes to protected speech. (Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975).)
Why is the second amendment excepted? Nothing in the text says anything different from the others with regards to age.
And don't say "because it's insane for kids to buy deadly weapons" because that doesn't seem to figure into any other part of second amendment interpretation.
Because that's the way our courts have ruled on it.
Nothing more complicated than that. The courts are empowered by the Constitution to interpret the Constitution, and their interpretation says kids can have their rights limited.
True, but the executive and legislator are bound to ignore the courts if their interpretation violates the constitution. The judicial branch for instance can't simply declare that "No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law" means that "Clarence Thomas is god emperor of the US and commands all the armed forces."
If they could interpret the constitution and that was that, then the judicial branch would basically have ultimate power and be exempted from the checks the other branches have on them.
That didn't happen until 1968 and by that time the constitution was basically toilet paper. The answer is ever since the progressive (and on some occasions, before that) era the constitution was more of a guideline, occasionally quoted by judges much like you can quote the bible to support pretty much anything if you twist it enough.
The Bong hits 4 Jesus case[1] clarified that minors don’t have full first amendment rights since they are compelled to attend school, and government employees can punish them for their speech.
My memory is failing me for the relevant case name but I’m also fairly sure students don’t have full 4th amendment rights, again because they are compelled to attend school and the government employees are allowed to search them at any time
The government doesn't have a compelling state interest in preventing you from downloading any app (a weather app, for instance) unless you provide your government ID first.
> In U.S. constitutional law, when a law infringes upon a fundamental constitutional right, the court may apply the strict scrutiny standard. Strict scrutiny holds the challenged law as presumptively invalid unless the government can demonstrate that the law or regulation is necessary to achieve a "compelling state interest". The government must also demonstrate that the law is "narrowly tailored" to achieve that compelling purpose, and that it uses the "least restrictive means" to achieve that purpose. Failure to meet this standard will result in striking the law as unconstitutional.
> It is difficult to square the notional unconstitutionality of this with the fact that the exercise of other Constitutional rights have long been conditional on age.
Some of this depends on whether the state has an interest in preventing known, broad harms - say in the case limiting minors ability to consume alcohol.
Conversely, there are no clearly proven, known targeted harms with respect of youth access to app stores (or even social media). What there are, are poorly represented / interpreted studies and a lot of media that is amplifying confused voices concerning these things.
> It is difficult to square the notional unconstitutionality of this with the fact that the exercise of other Constitutional rights have long been conditional on age. This just looks like another example.
> What is the consistent principle of law? I am having difficulty finding one that would support this ruling.
The Constitution of the US mentions age in a few very specific places, namely the minimum age to run for The House, The Senate, The Presidential seat, and I believe voting age.
The interpretation of existing jurisprudence is that age limits on the free exercise of rights is Constitutional in many circumstances regardless of if such limits are not explicitly in the Constitution. This is a simple observation of the current state of reality.
Those age limits are arbitrary and the justification can sometimes be nebulous but they clearly exist in the US.
> The interpretation of existing jurisprudence is that age limits on the free exercise of rights is Constitutional in many circumstances regardless of if such limits are not explicitly in the Constitution.
This is explicitly the case with voting rights, but other than that? While there a contextual limits where age may be a factor as to whether the context applies (e.g., some of the linitations that are permitted in public schools), I can't think of any explicit Constitutional right where the courts have allowed application of a direct age limit to the right itself. Can you explain specifically what you are referring to here?
> I can't think of any explicit Constitutional right where the courts have allowed application of a direct age limit to the right itself.
Right to keep and bear arms -- federally 21 to buy a handgun and 18 to buy a rifle/shotgun from an FFL. Although sometimes you can touch federal law (NFA) and not have such limit -- a 12 year old could buy a machine gun or grenade for instance privately and still be able to buy a federal tax stamp.
Speech - a little looser but the 1A rights of minors in schools are a little bit less than that of staff. It's been awhile since I looked over the cases but IIRC staff had slightly stronger free speech regarding political speech than students (I'll try to dig up the case later if someone asks for it).
> The controlled substance act, as applied, is insanely unconstitutional. That's part of the reason why they needed to pass an amendment to ban liquor.
The Wartime Prohibition Act says you are wrong. The 18th Amendment was certainly necessary to both make the policy irrevocable without another amendment, and to give states independent power notwithstanding usual Constitutional limits on state power to enforce prohibition on top of federal power, it is much more dubious that it was necessary for federal prohibition.
I just want to make clear, you completely ignored that I answered your questions and instead argued against someone else's tangent about meth (which although the government is unconstitutionally regulating as applied, isn't an explicit constitutional right which was what we were discussing) because they desperately needed to side rail the fact I was right by going on a red herring hunt (indeed, one where I was taken to task for apparently mentioning the constitution on a question that involves the constitution).
The wartime prohibition act, to the extent it regulated intrastate trade -- was also beyond the powers restrained by the 10th amendment. The fact a wartime era court lol'ed their way into regulating intrastate commerce is just another example of the federal government happily steamrolling rights (something they are especially good at around wartimes), but they needed the amendment to keep it up in non-wartime.
----- Re: irishman due to throttling ------
>Ignore meth. Do it again with wire fraud.
The question was about age limits on things that there is an explicit constitutional right of. You don't have a right to meth nor wire fraud. Your argument here doesn't make sense, nor is there an age where meth or wire fraud are legal which again was the question.
You’re missing the forest for the trees. It’s ok to be wrong.
Daww, edit:
The seed for this thread was:
> It is difficult to square the notional unconstitutionality of this with the fact that the exercise of other Constitutional rights have long been conditional on age. This just looks like another example.
> What is the consistent principle of law? I am having difficulty finding one that would support this ruling.
I pointed out that "unconstitutionality" wasn't accurate, because it isn't. You went on about jurisprudence whathaveyou. You moved the goalposts. I suppose I moved with them to try and make my point.
> The interpretation of existing jurisprudence is that age limits on the free exercise of rights is Constitutional in many circumstances regardless of if such limits are not explicitly in the Constitution. This is a simple observation of the current state of reality.
> Those age limits are arbitrary and the justification can sometimes be nebulous but they clearly exist in the US.
I mean, kind of, I guess?
States make their own age-related rules. The states are part of the US. So technically sure, you're right. In practice, you're very wrong.
> States make their own age-related rules. The states are part of the US. So technically sure, you're right. In practice, you're very wrong
This is wrong. It's particularly wrong in the way that you draw a distinction between theory and practice. It's so wrong that it's backwards.
In theory, the states set age related rules. In practice, they must set them to what the federal government tells them to. This was established in the specific case in 1984 [0] when Congress realised that it could withhold funding to states based on how quickly they agreed with it, and in the general case in 1861 [1] when the United States initiated a war that would go on to kill 1.6 million people after some states asked it only to exercise the powers derogated to it in its constitution.
Have you looked at age-of-consent rules across the various states? Boating license age requirements? How have those two completely unrelated things have-or-not changed over the past 100 years across all 50 states? Age for kids to sit in the front seat of a car? Learn to drive a car? Get a work permit?
States have age-related laws at an insane level. I don't know what you're on about.
Perhaps if you had examples or decisions to explain what you're talkinh about, you would make your point better?
As is, you are being politely called out as incorrect because you are asserting someone people don't believe and not providing any argument, evidence or justification.
> the fact that the exercise of other Constitutional rights have long been conditional on age
Which of those are in regard to the 1st Amendment?
> This just looks like another example.
No, it doesn't.
> What is the consistent principle of law?
The 1st Amendment.
> I am having difficulty finding one that would support this ruling.
The judge stated it clearly. And if there's an inconsistency then it's other rulings that violate the 1st Amendment that aren't supported, not this one.
Correct. If a right "shall not be infringed", then it shall not be infringed. Period. End of discussion. That right is inviolate. Any obstruction to its exercise is plainly anti-American.
If someone set a bomb using a speech recognition algorithm looking for specific elements of political speech, and I knowingly detonated it with that kind of political speech, would the act of my political speech be protected speech?
Is the act of shouting "fire!" in a crowded theater protected speech?
Surely there should be some limits on what constitutes protected speech.
Note that I didn't say anything about the 1st Amendment having no limits, nor does the Constitution say that--someone else said that I was "Correct" but put words in my mouth.
As for that "shall not be infringed" wording that is in the Constitution, there's a whole lot of sophistic, intellectually dishonest ideological rhetoric around it. The historical record shows clearly the Founders did not mean by their language what many people today insist that it means--for instance, they passed a number of gun laws restricting their use, and the original draft of the 2A contained a conscientious objector clause because, as the opening phrase indicates, "keep and bear arms" at that time referred to military use (and "arms" included armor and other tools of war; it was not a synonym for "firearms"). And some of the modern claims are absurd lies, such as that the 2A was intended to give citizens the means to overthrow the government, or that "well-regulated" doesn't mean what it does and did mean. George Washington was dismayed by the Articles of Confederation not giving him the power to put down Shay's Rebellion ("Let us have a government by which our lives, liberties, and properties will be secured"), and one his first acts after the Constitution was ratified was to use the militia to put down the Whiskeytown rebellion.
It's certainly not a strawman when it's an oft repeated argument going back to Oliver Wendell Holmes' dictum in Schenck v. United States (and even further, as Holmes didn't invent this argument). The argument doesn't change if it's "There's a fire! Run, everyone!" -- and saying "that isn't speech, it's an emotional trigger" would be an intellectually dishonest evasion--lots of actual true blue speech triggers emotions.
P.S. I won't engage further with people clearly not arguing in good faith.
There it is. Actual true blue speech triggers emotions.
Speech communicates ideas. It is mostly opinions. If you state something as fact, when it isn't, it is libel. As such, saying "there is a fire" in the theater is not speech, it is an exclamation.
If you aren't for free speech, then yes, yawning is speech.
False analogy given by this federal judge. App stores are gateways to social environments and unknown or future content. Every book in a bookstore can be verified because the content can be known and audited. Regardless of opinion on the root issue, this judges statement aligns books with the Internet and they are absolutely not the same.
Bookstore and libraries are environments where content is known. I am not making any sort of argument that identifies internet access as something to age gate.
Correct analogies should be used to present the most fool proof argument.
I hope we can use the First Amendment and freedom of assembly to tackle these ID age verification (read: 1984 surveillance) laws. I don't have faith that this will work.
We need to amend the constitution to guarantee our privacy. It should be a fundamental right.
> We need to amend the constitution to guarantee our privacy. It should be a fundamental right.
As far as government intrusion into our privacy, it's addressed by the 4th Amendment's guarantee - that the right of the people to be secure in their persons, houses, papers, and effects and that our rights against unreasonable searches and seizures, shall not be violated.
The challenge is that courts repeatedly and routinely support and protect the government in it's continual, blatant violation of our 4A protections.
This has allowed governments at every level to build out the most pervasive surveillance system in human history - which has just been waiting for a cruelty-centric autocrat to take control of it.
And for the most part, we have both parties + news orgs to thank for this. They've largely been united in supporting all the steps toward this outcome.
> As far as government intrusion into our privacy, it's addressed by the 4th Amendment's guarantee that the right of the people to be secure in their persons, houses, papers, and effects and that our rights against unreasonable searches and seizures, shall not be violated.
The Pennsylvania High Court recently ruled that the Pennsylvania local police don't need a warrant to access your search history.
> The Pennsylvania High Court recently ruled that the Pennsylvania local police don't need a warrant to access your search history. Clearly, those protections have already been violated.
Absolutely. And to keep court-sanctioned violations from getting challenged, a state can utilize a number of tactics to shroud the methods in secrecy. This makes it very difficult for the violated to show standing in a challenge.
The state has nearly every possible advantage in leveraging gov power against the public.
>The Pennsylvania High Court recently ruled that the Pennsylvania local police don't need a warrant to access your search history.
How does this work? Does that mean if Pennsylvania police ask google nicely for it, then google isn't breaking the law in complying? Or that Google has to hand over the information even without a warrant?
The other challenge is that in the modern era the houses, papers, and effects of most people have been partially signed off to corporate entities who are more than happy to consent away their access into our effects.
> The other challenge is that in the modern era the houses, papers, and effects of most people have been partially signed off to corporate entities who are more than happy to consent away their access into our effects.
Do you mean those who rent their homes?
I rented for a long time. I bought a house. None of my house, papers, or effects are owned by anyone but myself. I guess a credit union owns the mortgage, but they haven't and won't sell it.
To those who will jump to disagree with me about the credit union selling my mortgage: they won't. They don't engage in that market, never have.
I think he meant things like his personal notes and files stored in an app like Evernote, which law enforcement can request copies of. I don't like the idea of someone reading my private notes...
If we all acknowledge that the internet is a beautiful disaster that shan’t be trusted, which it always has been and always will be, we can all collectively get over ourselves about privacy on the internet. “Hey world I went overseas for vacation/holiday! I cooked this amazing dinner! I’m cheating on my SO using an online chat app!”
Maybe stop doing all 3 of those things. I can’t tell you how liberating it’s been since I got off all social media in ~2008. It’s super easy to be very private if you so choose. Having any kind of internet presence is a voluntary sacrifice of privacy.
> None of my house, papers, or effects are owned by anyone but myself.
Do you self host your own email? No? Those are "papers" that your email hosting provider can consent to providing law enforcement access to without a warrant.
Do you use search engines? Your search history is in the same boat with the search engine company.
Don't use a VPN? All of your internet traffic is in the same boat with your ISP
You use a VPN? All your internet traffic is in the same boat with the VPN.
The list goes on and on. It is almost certainly true that some company has private information about you that they can turn over without a warrant.
You forgot to respond to anything except the "houses" part of this.
It's obvious what GP and others are saying - that the concept of things like "papers" and "effects" are no longer as concrete as they used to be. What used to be physical letters stored in one's home are now emails stored on any number of servers.
> Please respond to the strongest plausible interpretation of what someone says, not a weaker one that's easier to criticize.
> The other challenge is that in the modern era the houses, papers, and effects of most people have been partially signed off to corporate entities
There are two issues here, each harms us on it's own and both are intertwined toward our detriment.
The first is the deeply problematic 3rd Party Doctrine with established that we lose our rights when a 3rd party has control over our private content/information. What few stipulations there are in the precedent are routinely ignored or twisted by the courts (ex:voluntarily given). This allows governments to wholly ignore the 4th amendment altogether.
The second is the utter lack of meaningful, well written privacy laws that should exist to protect individuals from corporate misuse and exploitation of our personal and private data.
And even worse than Governments willfully violating our privacy rights (thanks to countless courts) and worse than corporations ceaseless leveraging our personal data against us - is that both (of every size) now openly collaborate to violate our privacy in every possible way they can.
All of us in the EU could learn something from this judge's ruling and from the Constitution. The EU is on the fast-track to turning into a vast surveillance state the way things have been going (the increasing rise of arresting people who post mean things on the internet, Chat Control, age restrictions now rolling out in Denmark).
We love to regulate here in the EU and now that love of regulation is being weaponized against its own people.
> we are concerned that SB2420 impacts the privacy of users by requiring the collection of sensitive, personally identifiable information to download any app, even if a user simply wants to check the weather or sports scores.
Avoiding the collection of user data in the first place (if it's possible) is exactly the correct approach to user privacy.
I do not see how this is an argument. If porn can be narrowly targeted, why apps can not be targeted narrowly as well?
It seems to be more about harmonizing Texas law (SB2420) under the constraints of federal law (1A), so we will likely to see this question all the way to the USSC.
I just received an email from Google Play Developer today morning that they will not be activating the age verification APIs (they will throw an exception) because of the injunction, so there's nothing Apple specific about this.
If the judge finds that apps and books are so equivalent, then letting the apps require age verification should do no harm -- everyone underage or privacy-concerned will simply go to the bookstore or a library. Right?
Apparently, these are not quite equivalent. Like books and weapons, like books and alcohol, etc.
> If the judge finds that apps and books are so equivalent, then letting the apps require age verification should do no harm -- everyone underage or privacy-concerned will simply go to the bookstore or a library. Right?
Good point, but judge's reduction it to a book equivalence is misleading and weakens the judgement.
Porn may provide a suitable model: not all movies need age verification, so those can be viewed at any age. Some movies, however, do require age verification. Similar age ratings could be applied to apps. For example, Facebook only after 18 regardless of parent's approval.
Porn has always been treated differently than other speech that is why most age verification laws want for it first. As for your other examples those are all technically voluntary, as it’s unlikely a government mandate that nobody under 17 can watch an R rated movie would pass constitutional muster. Parents can restrict what speech their kids say or hear but the government generally cannot in the US.
> Parents can restrict what speech their kids say or hear but the government generally cannot in the US.
Good in theory, but practically impossible. Peer pressure is too high for parents to be a significant barrier. If you were successful, please share how you did that.
"Cannot" in the US means no route to enforcement in that context. Distribution of NC-17 content to minors was never directly illegal, but doing so anyway would open the door for potential legal issues under the more broad umbrella of laws that cover "distribution of lewd or obscene content to a minor" which is more of a "do so and find out" concept of enforcement versus specifically identifying NC-17/X content by law.
The question isn't whether your or my proposed regime is practical. The first amendment precedent is clear that the government is not allowed to restrict children's speech any more than it is adults' speech aside from some narrow and tailored exceptions.
Right. So SB2420 and the federal court judgment are the steps in the process to narrowly tailor another exception. Likely driven by the practical reasons mentioned earlier.
Judge Robert Pitman said that it violates the First Amendment and is "more likely than not - unconstitutional."
We enjoy 1A protections of speech and assembly. When we consider our rights, the productive, default position is that government is told no (when it wants to restrict us).For those curious about the "consistent principle of law" here - SCOTUS wrestled with nearly exactly this question in Free Speech Coalition v. Paxton earlier this year, and effectively emboldened more of these laws.
Previously the Fifth Circuit had relied heavily on Ginsberg v. New York (1968) to justify rational basis review. But Ginsberg was a narrow scope - it held that minors don't have the same First Amendment rights as adults to access "obscene as to minors" material. It wasn't about burdens on adults at all. Later precedent (Ashcroft, Sable, Reno, Playboy) consistently applied strict scrutiny when laws burdened adults' access to protected speech, even when aimed at protecting minors.
In Paxton the majority split the difference and applied intermediate scrutiny - a lower bar than strict - claiming the burden on adults is merely "incidental." Kagan had a dissent worth reading, arguing this departs from precedent even if the majority won't frame it that way. You could call it "overturning" or "distinguishing" depending on how charitable you're feeling.
The oral arguments are worth watching if you want to understand how to grapple with these questions: https://www.youtube.com/watch?v=ckoCJthJEqQ
On 1A: The core concern isn't that age-gating exists - it's that mandatory identification to access legal speech creates chilling effects and surveillance risks that don't exist when you flash an ID at a liquor store.
Note: IANAL but do enjoy reading many SC transcripts
I would read your summaries of legal precedents again, ahead of lots of people who AAL.
Highly recommend the podcast “Advisory Opinions” if you are interested in Supreme Court analysis.
I also recommend that podcast but I would suggest balancing it with '5-4' podcast or 'strict scrutiny'. Sara and David do a very good job explaining both sides and the law but there are times I think advisory opinions could spend more time on the arguments made by the other side or the weaker portions of their supported view.
The technical implementation is messy too. Most age verification systems either don't work well or create massive privacy risks by requiring government ID uploads.
That feels like a feature and not a bug given the way some of this stuff is heading.
Don’t let it.
It is difficult to square the notional unconstitutionality of this with the fact that the exercise of other Constitutional rights have long been conditional on age. This just looks like another example.
What is the consistent principle of law? I am having difficulty finding one that would support this ruling.
Laws limiting fundamental constitutional rights are subject to "strict scrutiny", which means they must be justified by a compelling government interest, narrowly tailored, and be the least restrictive means to achieve the interest in question. One might reasonably argue even that standard gives the government too much leeway when it comes to fundamental rights.
Age restrictions narrowly tailored to specific content thought to be harmful to minors have often been tolerated by the courts, but something broad like all book stores, all movie theaters, or all app stores violates all three strict scrutiny tests.
I'm interested: the only one that I can think of that has some limitations is the second amendment? Are there others?
As to the first amendment: Although not equal to that of adults, the U.S. Supreme Court has said that "minors are entitled to a significant measure of First Amendment protection." Only in relatively narrow and limited circumstances can the government restrict kids' rights when it comes to protected speech. (Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975).)
Why is the second amendment excepted? Nothing in the text says anything different from the others with regards to age.
And don't say "because it's insane for kids to buy deadly weapons" because that doesn't seem to figure into any other part of second amendment interpretation.
Because that's the way our courts have ruled on it.
Nothing more complicated than that. The courts are empowered by the Constitution to interpret the Constitution, and their interpretation says kids can have their rights limited.
True, but the executive and legislator are bound to ignore the courts if their interpretation violates the constitution. The judicial branch for instance can't simply declare that "No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law" means that "Clarence Thomas is god emperor of the US and commands all the armed forces."
If they could interpret the constitution and that was that, then the judicial branch would basically have ultimate power and be exempted from the checks the other branches have on them.
That’s called a constitutional crisis and then gets into brining guns out to see who’s really in charge.
They could still be impeached by the legislative branch.
That didn't happen until 1968 and by that time the constitution was basically toilet paper. The answer is ever since the progressive (and on some occasions, before that) era the constitution was more of a guideline, occasionally quoted by judges much like you can quote the bible to support pretty much anything if you twist it enough.
The Bong hits 4 Jesus case[1] clarified that minors don’t have full first amendment rights since they are compelled to attend school, and government employees can punish them for their speech.
My memory is failing me for the relevant case name but I’m also fairly sure students don’t have full 4th amendment rights, again because they are compelled to attend school and the government employees are allowed to search them at any time
[1] https://en.wikipedia.org/wiki/Morse_v._Frederick
The government doesn't have a compelling state interest in preventing you from downloading any app (a weather app, for instance) unless you provide your government ID first.
> In U.S. constitutional law, when a law infringes upon a fundamental constitutional right, the court may apply the strict scrutiny standard. Strict scrutiny holds the challenged law as presumptively invalid unless the government can demonstrate that the law or regulation is necessary to achieve a "compelling state interest". The government must also demonstrate that the law is "narrowly tailored" to achieve that compelling purpose, and that it uses the "least restrictive means" to achieve that purpose. Failure to meet this standard will result in striking the law as unconstitutional.
https://en.wikipedia.org/wiki/Strict_scrutiny
> It is difficult to square the notional unconstitutionality of this with the fact that the exercise of other Constitutional rights have long been conditional on age.
Some of this depends on whether the state has an interest in preventing known, broad harms - say in the case limiting minors ability to consume alcohol.
Conversely, there are no clearly proven, known targeted harms with respect of youth access to app stores (or even social media). What there are, are poorly represented / interpreted studies and a lot of media that is amplifying confused voices concerning these things.
> It is difficult to square the notional unconstitutionality of this with the fact that the exercise of other Constitutional rights have long been conditional on age. This just looks like another example.
> What is the consistent principle of law? I am having difficulty finding one that would support this ruling.
The Constitution of the US mentions age in a few very specific places, namely the minimum age to run for The House, The Senate, The Presidential seat, and I believe voting age.
I don't understand your point.
The interpretation of existing jurisprudence is that age limits on the free exercise of rights is Constitutional in many circumstances regardless of if such limits are not explicitly in the Constitution. This is a simple observation of the current state of reality.
Those age limits are arbitrary and the justification can sometimes be nebulous but they clearly exist in the US.
> The interpretation of existing jurisprudence is that age limits on the free exercise of rights is Constitutional in many circumstances regardless of if such limits are not explicitly in the Constitution.
This is explicitly the case with voting rights, but other than that? While there a contextual limits where age may be a factor as to whether the context applies (e.g., some of the linitations that are permitted in public schools), I can't think of any explicit Constitutional right where the courts have allowed application of a direct age limit to the right itself. Can you explain specifically what you are referring to here?
> I can't think of any explicit Constitutional right where the courts have allowed application of a direct age limit to the right itself.
Right to keep and bear arms -- federally 21 to buy a handgun and 18 to buy a rifle/shotgun from an FFL. Although sometimes you can touch federal law (NFA) and not have such limit -- a 12 year old could buy a machine gun or grenade for instance privately and still be able to buy a federal tax stamp.
Speech - a little looser but the 1A rights of minors in schools are a little bit less than that of staff. It's been awhile since I looked over the cases but IIRC staff had slightly stronger free speech regarding political speech than students (I'll try to dig up the case later if someone asks for it).
There is a difference between what is said in the constitution and what has been declared as a federal law.
For example: meth is very illegal under federal law, and not mentioned in the constitution.
You should stop citing the constitution.
The controlled substance act, as applied, is insanely unconstitutional. That's part of the reason why they needed to pass an amendment to ban liquor.
> The controlled substance act, as applied, is insanely unconstitutional. That's part of the reason why they needed to pass an amendment to ban liquor.
The Wartime Prohibition Act says you are wrong. The 18th Amendment was certainly necessary to both make the policy irrevocable without another amendment, and to give states independent power notwithstanding usual Constitutional limits on state power to enforce prohibition on top of federal power, it is much more dubious that it was necessary for federal prohibition.
I just want to make clear, you completely ignored that I answered your questions and instead argued against someone else's tangent about meth (which although the government is unconstitutionally regulating as applied, isn't an explicit constitutional right which was what we were discussing) because they desperately needed to side rail the fact I was right by going on a red herring hunt (indeed, one where I was taken to task for apparently mentioning the constitution on a question that involves the constitution).
The wartime prohibition act, to the extent it regulated intrastate trade -- was also beyond the powers restrained by the 10th amendment. The fact a wartime era court lol'ed their way into regulating intrastate commerce is just another example of the federal government happily steamrolling rights (something they are especially good at around wartimes), but they needed the amendment to keep it up in non-wartime.
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>Ignore meth. Do it again with wire fraud.
The question was about age limits on things that there is an explicit constitutional right of. You don't have a right to meth nor wire fraud. Your argument here doesn't make sense, nor is there an age where meth or wire fraud are legal which again was the question.
Ignore meth. Do it again with wire fraud.
You’re missing the forest for the trees. It’s ok to be wrong.
Daww, edit:
The seed for this thread was:
> It is difficult to square the notional unconstitutionality of this with the fact that the exercise of other Constitutional rights have long been conditional on age. This just looks like another example. > What is the consistent principle of law? I am having difficulty finding one that would support this ruling.
I pointed out that "unconstitutionality" wasn't accurate, because it isn't. You went on about jurisprudence whathaveyou. You moved the goalposts. I suppose I moved with them to try and make my point.
Pedantic, gotcha. Replace meth with wire fraud.
> The interpretation of existing jurisprudence is that age limits on the free exercise of rights is Constitutional in many circumstances regardless of if such limits are not explicitly in the Constitution. This is a simple observation of the current state of reality.
> Those age limits are arbitrary and the justification can sometimes be nebulous but they clearly exist in the US.
I mean, kind of, I guess?
States make their own age-related rules. The states are part of the US. So technically sure, you're right. In practice, you're very wrong.
> States make their own age-related rules. The states are part of the US. So technically sure, you're right. In practice, you're very wrong
This is wrong. It's particularly wrong in the way that you draw a distinction between theory and practice. It's so wrong that it's backwards.
In theory, the states set age related rules. In practice, they must set them to what the federal government tells them to. This was established in the specific case in 1984 [0] when Congress realised that it could withhold funding to states based on how quickly they agreed with it, and in the general case in 1861 [1] when the United States initiated a war that would go on to kill 1.6 million people after some states asked it only to exercise the powers derogated to it in its constitution.
[0] https://en.wikipedia.org/wiki/National_Minimum_Drinking_Age_...
[1] https://en.wikipedia.org/wiki/American_Civil_War
Have you looked at age-of-consent rules across the various states? Boating license age requirements? How have those two completely unrelated things have-or-not changed over the past 100 years across all 50 states? Age for kids to sit in the front seat of a car? Learn to drive a car? Get a work permit?
States have age-related laws at an insane level. I don't know what you're on about.
Perhaps if you had examples or decisions to explain what you're talkinh about, you would make your point better?
As is, you are being politely called out as incorrect because you are asserting someone people don't believe and not providing any argument, evidence or justification.
> the fact that the exercise of other Constitutional rights have long been conditional on age
Which of those are in regard to the 1st Amendment?
> This just looks like another example.
No, it doesn't.
> What is the consistent principle of law?
The 1st Amendment.
> I am having difficulty finding one that would support this ruling.
The judge stated it clearly. And if there's an inconsistency then it's other rulings that violate the 1st Amendment that aren't supported, not this one.
Correct. If a right "shall not be infringed", then it shall not be infringed. Period. End of discussion. That right is inviolate. Any obstruction to its exercise is plainly anti-American.
If someone set a bomb using a speech recognition algorithm looking for specific elements of political speech, and I knowingly detonated it with that kind of political speech, would the act of my political speech be protected speech?
Is the act of shouting "fire!" in a crowded theater protected speech?
Surely there should be some limits on what constitutes protected speech.
Note that I didn't say anything about the 1st Amendment having no limits, nor does the Constitution say that--someone else said that I was "Correct" but put words in my mouth.
As for that "shall not be infringed" wording that is in the Constitution, there's a whole lot of sophistic, intellectually dishonest ideological rhetoric around it. The historical record shows clearly the Founders did not mean by their language what many people today insist that it means--for instance, they passed a number of gun laws restricting their use, and the original draft of the 2A contained a conscientious objector clause because, as the opening phrase indicates, "keep and bear arms" at that time referred to military use (and "arms" included armor and other tools of war; it was not a synonym for "firearms"). And some of the modern claims are absurd lies, such as that the 2A was intended to give citizens the means to overthrow the government, or that "well-regulated" doesn't mean what it does and did mean. George Washington was dismayed by the Articles of Confederation not giving him the power to put down Shay's Rebellion ("Let us have a government by which our lives, liberties, and properties will be secured"), and one his first acts after the Constitution was ratified was to use the militia to put down the Whiskeytown rebellion.
https://www.politico.com/news/magazine/2022/06/26/conservati...
"Is the act of shouting "fire!" in a crowded theater protected speech?"
Strawman. That is not speech in the same way that yelling or crying is not free speech.
The first one is the same strawman. Making the word milk a trigger mustn't milk illegal.
It's certainly not a strawman when it's an oft repeated argument going back to Oliver Wendell Holmes' dictum in Schenck v. United States (and even further, as Holmes didn't invent this argument). The argument doesn't change if it's "There's a fire! Run, everyone!" -- and saying "that isn't speech, it's an emotional trigger" would be an intellectually dishonest evasion--lots of actual true blue speech triggers emotions.
P.S. I won't engage further with people clearly not arguing in good faith.
There it is. Actual true blue speech triggers emotions.
Speech communicates ideas. It is mostly opinions. If you state something as fact, when it isn't, it is libel. As such, saying "there is a fire" in the theater is not speech, it is an exclamation.
If you aren't for free speech, then yes, yawning is speech.
False analogy given by this federal judge. App stores are gateways to social environments and unknown or future content. Every book in a bookstore can be verified because the content can be known and audited. Regardless of opinion on the root issue, this judges statement aligns books with the Internet and they are absolutely not the same.
With that argument you could argue for age gating wifi access and mobile data.
Bookstore and libraries are environments where content is known. I am not making any sort of argument that identifies internet access as something to age gate.
Correct analogies should be used to present the most fool proof argument.
Have you read the opinion?
Yes and I am addressing the quoted remark above which stands out.
I hope we can use the First Amendment and freedom of assembly to tackle these ID age verification (read: 1984 surveillance) laws. I don't have faith that this will work.
We need to amend the constitution to guarantee our privacy. It should be a fundamental right.
> We need to amend the constitution to guarantee our privacy. It should be a fundamental right.
As far as government intrusion into our privacy, it's addressed by the 4th Amendment's guarantee - that the right of the people to be secure in their persons, houses, papers, and effects and that our rights against unreasonable searches and seizures, shall not be violated.
The challenge is that courts repeatedly and routinely support and protect the government in it's continual, blatant violation of our 4A protections.
This has allowed governments at every level to build out the most pervasive surveillance system in human history - which has just been waiting for a cruelty-centric autocrat to take control of it.
And for the most part, we have both parties + news orgs to thank for this. They've largely been united in supporting all the steps toward this outcome.
> As far as government intrusion into our privacy, it's addressed by the 4th Amendment's guarantee that the right of the people to be secure in their persons, houses, papers, and effects and that our rights against unreasonable searches and seizures, shall not be violated.
The Pennsylvania High Court recently ruled that the Pennsylvania local police don't need a warrant to access your search history.
https://news.ycombinator.com/item?id=46329186
Clearly, those protections have already been violated.
> The Pennsylvania High Court recently ruled that the Pennsylvania local police don't need a warrant to access your search history. Clearly, those protections have already been violated.
Absolutely. And to keep court-sanctioned violations from getting challenged, a state can utilize a number of tactics to shroud the methods in secrecy. This makes it very difficult for the violated to show standing in a challenge.
The state has nearly every possible advantage in leveraging gov power against the public.
>The Pennsylvania High Court recently ruled that the Pennsylvania local police don't need a warrant to access your search history.
How does this work? Does that mean if Pennsylvania police ask google nicely for it, then google isn't breaking the law in complying? Or that Google has to hand over the information even without a warrant?
The other challenge is that in the modern era the houses, papers, and effects of most people have been partially signed off to corporate entities who are more than happy to consent away their access into our effects.
> The other challenge is that in the modern era the houses, papers, and effects of most people have been partially signed off to corporate entities who are more than happy to consent away their access into our effects.
Do you mean those who rent their homes?
I rented for a long time. I bought a house. None of my house, papers, or effects are owned by anyone but myself. I guess a credit union owns the mortgage, but they haven't and won't sell it.
To those who will jump to disagree with me about the credit union selling my mortgage: they won't. They don't engage in that market, never have.
I think he meant things like his personal notes and files stored in an app like Evernote, which law enforcement can request copies of. I don't like the idea of someone reading my private notes...
Me either.
You can write them down on paper.
If we all acknowledge that the internet is a beautiful disaster that shan’t be trusted, which it always has been and always will be, we can all collectively get over ourselves about privacy on the internet. “Hey world I went overseas for vacation/holiday! I cooked this amazing dinner! I’m cheating on my SO using an online chat app!”
Maybe stop doing all 3 of those things. I can’t tell you how liberating it’s been since I got off all social media in ~2008. It’s super easy to be very private if you so choose. Having any kind of internet presence is a voluntary sacrifice of privacy.
> None of my house, papers, or effects are owned by anyone but myself.
Do you self host your own email? No? Those are "papers" that your email hosting provider can consent to providing law enforcement access to without a warrant.
Do you use search engines? Your search history is in the same boat with the search engine company.
Don't use a VPN? All of your internet traffic is in the same boat with your ISP
You use a VPN? All your internet traffic is in the same boat with the VPN.
The list goes on and on. It is almost certainly true that some company has private information about you that they can turn over without a warrant.
You forgot “houses” there, boss.
You forgot to respond to anything except the "houses" part of this.
It's obvious what GP and others are saying - that the concept of things like "papers" and "effects" are no longer as concrete as they used to be. What used to be physical letters stored in one's home are now emails stored on any number of servers.
> Please respond to the strongest plausible interpretation of what someone says, not a weaker one that's easier to criticize.
https://news.ycombinator.com/newsguidelines.html
Amazon's echo and other such IoT devices do extend this to "houses" but isn't quite as ubiquitous.
My house, papers, and effects aren’t not tied to whatever you’re calling out about the internet, not in the sense you’re insinuating.
You’re conflating ideas to make a point. I admire the effort, you’re just not correct.
> The other challenge is that in the modern era the houses, papers, and effects of most people have been partially signed off to corporate entities
There are two issues here, each harms us on it's own and both are intertwined toward our detriment.
The first is the deeply problematic 3rd Party Doctrine with established that we lose our rights when a 3rd party has control over our private content/information. What few stipulations there are in the precedent are routinely ignored or twisted by the courts (ex:voluntarily given). This allows governments to wholly ignore the 4th amendment altogether.
The second is the utter lack of meaningful, well written privacy laws that should exist to protect individuals from corporate misuse and exploitation of our personal and private data.
And even worse than Governments willfully violating our privacy rights (thanks to countless courts) and worse than corporations ceaseless leveraging our personal data against us - is that both (of every size) now openly collaborate to violate our privacy in every possible way they can.
All of us in the EU could learn something from this judge's ruling and from the Constitution. The EU is on the fast-track to turning into a vast surveillance state the way things have been going (the increasing rise of arresting people who post mean things on the internet, Chat Control, age restrictions now rolling out in Denmark).
We love to regulate here in the EU and now that love of regulation is being weaponized against its own people.
> we are concerned that SB2420 impacts the privacy of users by requiring the collection of sensitive, personally identifiable information to download any app, even if a user simply wants to check the weather or sports scores.
Avoiding the collection of user data in the first place (if it's possible) is exactly the correct approach to user privacy.
The only reason the earlier age verification laws were upheld were because they narrowly targeted porn. This is an entirely unsurprising outcome.
I do not see how this is an argument. If porn can be narrowly targeted, why apps can not be targeted narrowly as well?
It seems to be more about harmonizing Texas law (SB2420) under the constraints of federal law (1A), so we will likely to see this question all the way to the USSC.
Apps aren’t a narrow target
"If porn can be narrowly targeted, why not books?"
You cannot narrowly target a medium.
wait, so its not affect apple users ????
Google just sent me a email today that Google would push forward
I just received an email from Google Play Developer today morning that they will not be activating the age verification APIs (they will throw an exception) because of the injunction, so there's nothing Apple specific about this.
And i just got a ton of apps updated and ready for it…
Thanks, Obama
If the judge finds that apps and books are so equivalent, then letting the apps require age verification should do no harm -- everyone underage or privacy-concerned will simply go to the bookstore or a library. Right?
Apparently, these are not quite equivalent. Like books and weapons, like books and alcohol, etc.
> If the judge finds that apps and books are so equivalent, then letting the apps require age verification should do no harm -- everyone underage or privacy-concerned will simply go to the bookstore or a library. Right?
That is obvious harm.
This is only an obvious lack of equivalence
The equivalence is that children have first amendment rights (see Tinker v Des Moines) and speech delivered by the internet is still speech.
Good point, but judge's reduction it to a book equivalence is misleading and weakens the judgement.
Porn may provide a suitable model: not all movies need age verification, so those can be viewed at any age. Some movies, however, do require age verification. Similar age ratings could be applied to apps. For example, Facebook only after 18 regardless of parent's approval.
> judge's reduction it to a book equivalence is misleading and weakens the judgement
Good thing that isn't what happened. It is called an "analogy" and is not a factual statement of equivalence.
Porn has always been treated differently than other speech that is why most age verification laws want for it first. As for your other examples those are all technically voluntary, as it’s unlikely a government mandate that nobody under 17 can watch an R rated movie would pass constitutional muster. Parents can restrict what speech their kids say or hear but the government generally cannot in the US.
> Parents can restrict what speech their kids say or hear but the government generally cannot in the US.
Good in theory, but practically impossible. Peer pressure is too high for parents to be a significant barrier. If you were successful, please share how you did that.
"Cannot" in the US means no route to enforcement in that context. Distribution of NC-17 content to minors was never directly illegal, but doing so anyway would open the door for potential legal issues under the more broad umbrella of laws that cover "distribution of lewd or obscene content to a minor" which is more of a "do so and find out" concept of enforcement versus specifically identifying NC-17/X content by law.
The question isn't whether your or my proposed regime is practical. The first amendment precedent is clear that the government is not allowed to restrict children's speech any more than it is adults' speech aside from some narrow and tailored exceptions.
Right. So SB2420 and the federal court judgment are the steps in the process to narrowly tailor another exception. Likely driven by the practical reasons mentioned earlier.