Judge To Texas: You Can’t Age-Gate The Entire Internet Without Evidence

Legal Issues

from the first-amendment-wins-for-now dept

Over the summer, the Supreme Court’s conservative majority upended decades of traditional First Amendment standards to say that Texas could put in place an age verification law if that law was intended to keep kids away from porn. As we argued at the time, the ruling had all sorts of problems, but even leaving those aside, it was still pretty clearly limited solely to situations involving age gating adult content. Not news sites. Not fitness apps. Not therapy platforms. Porn.

Texas, predictably, heard “you can age gate porn” and decided that meant “you can age gate everything.” Because why respect constitutional distinctions when you can just pretend they don’t exist?

And Texas isn’t alone in this—states across the country have been rushing to pass sweeping age verification laws for social media and other content, because ignoring the First Amendment rights of children remains a proud bipartisan tradition.

In Texas’s case, the legislature passed Senate Bill 2420, entitled the “App Store Accountability Act,” which would require age verification, parental controls, and warning labels on various app stores and apps.

A couple of lawsuits were filed to challenge the law—one from CCIA, the trade group representing a bunch of internet companies, and another from a bunch of students who pointed out that the law violated their rights. Last week, judge Robert Pitman ruled in both cases, putting the law on hold and noting that the law pretty clearly violated the First Amendment, because the law is extremely overbroad and not at all narrowly targeted:

Because strict scrutiny applies, Paxton must prove that SB 2420 is “the least restrictive means of achieving a compelling state interest.” Free Speech Coalition, 606 U.S. at 484. Paxton has not proven this. First, it is far from clear that Texas has a compelling interest in preventing minors’ access to every single category of speech restricted by SB 2420. State interests in protecting minors exist; for example, a state has a compelling interest in preventing minors from accessing information that facilitates child pornography or sexual abuse. See Sable Commc’ns of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989) (“[T]here is a compelling interest in protecting the physical and psychological well-being of minors.”). On the other hand, nothing suggests Texas’s interest in preventing minors from accessing a wide variety of apps that foster protected speech (such as the Associated Press, the Wall Street Journal, Substack, or Sports Illustrated) is compelling. See Brown, 564 U.S. at 794 (“No doubt a State possesses legitimate power to protect children from harm, but that does not include a free-floating power to restrict the ideas to which children may be exposed.”) (internal citation omitted). While SB 2420 may have some compelling applications, the categories of speech it restricts are so exceedingly overbroad that Paxton likely cannot show a compelling state interest.

Texas tried arguing that age gating apps is no different than age restrictions on tobacco and alcohol. The court wasn’t having it—not least because Texas showed up with zero evidence that downloading apps poses health hazards comparable to cigarettes or booze. You can’t just assert “apps are like tobacco” and expect a federal judge to nod along.

Analogizing to tobacco or alcohol use, Paxton argues that Texas has an interest in regulating products and services “which pose health hazards, or which may be addictive” to minors. (Resp., Dkt. 17, at 13.) However, the State does not cite evidence to substantiate the assertion that downloading an app of any kind without parental permission poses a health hazard to minors. That argument gestures toward Texas’s interest in preventing social media addiction, but SB 2420’s coverage sweeps far wider—all apps are restricted, beyond social media, as described above. So too, SB 2420 does not limit its scope to apps that use addictive algorithms designed to encourage prolonged use, or apps that are responsible in particular for causing excessive screen time. As one example, SB 2420 restricts access to apps that seek to promote physical or mental health, such as mindfulness apps like Calm, fitness apps like Strava, or therapy providers like BetterHelp.

Read that again: In seeking to age gate everything, Texas would be age gating therapy apps. And mindfulness apps. And fitness trackers. Because apparently tracking your morning run is a clear and present danger to minors.

Of course, with strict scrutiny, you need to show that the law is narrowly tailored to a compelling government interest. Even if we assume (without evidence) the compelling government interest here, it was not “narrowly tailored.”

Even accepting that Texas has a compelling interest in requiring age-verification and parental permission to mitigate an overall mental- or physical-health effect of mobile phone app use—an interest which Texas has not offered evidence of at this stage—SB 2420 is not narrowly tailored to that interest. Rather, Texas “could have easily employed less restrictive means to accomplish its protective goals, such as by (1) incentivizing companies to offer voluntary content filters or application blockers, [and] (2) educating children and parents on the importance of using such tools.” NetChoice, LLC v. Bonta, No. 23-2969, 113 F.4th 1101, 1121 (9th Cir. Aug. 16, 2024); see also, e.g., SEAT, 765 F. Supp. 3d at 696, 698−99; CCIA, 747 F. Supp. 3d at 1036−37. In this case, one less restrictive means than SB 2420 (as the State acknowledged at the hearing) would have been to narrowly target regulations toward apps that the State demonstrates have specific addictive qualities. To the state interest of preventing minors from accessing harmful material, Texas has existing laws requiring age-verification for digital services providers containing one-third or more sexual material harmful to minors. Tex. Civ. Prac. & Rem. Code § 129B.002(a). Paxton has not shown that methods employed by SB 2420—broadly restricting app downloads and content within apps, with few content-based exceptions—are necessary to prevent minors from accessing the subset of apps which contain harmful material. Because it restricts almost all apps and content within apps, SB 2420 does not employ “the least restrictive means” to stop minors from accessing harmful material

To emphasize how not narrowly targeted the law is, the court points out how it would ban kids from all sorts of perfectly legitimate information they should have access to:

Also problematically, the law is under- and over-inclusive. That a law “is wildly underinclusive when judged against its asserted justification . . . is alone enough to defeat it.” Brown, 564 U.S. at 802. The law is under-inclusive: SB 2420 specifically cuts teenagers off from wide swaths of the critical “democratic forum[] of the Internet” even though the same content offered via apps remains available to minors via pre-downloaded apps like Safari (or in stores). Reno v. Am. C.L. Union, 521 U.S. 844, 868 (1997). The law is also over-inclusive: its attempt to block children from accessing harmful content on select apps, Texas also prohibits minors from participating in the democratic exchange of views online by curtailing their access to all apps.

Pitman reserves particular disdain for Texas’s evidence-free assertions:

So too, Texas offers no evidence that even some or most of the apps covered cause mental-or physical-health detriments for youth. Paxton gestures generally to the impacts of social media on youth, (Resp., Dkt. 28, at 15), and calls the apps at issue a “health hazard,” (id. at 13). At the hearing, Paxton suggested, too, that the interest underlying the law was mitigating the impact of excessive phone use and overall screen time, algorithmic targeting, and artificial intelligence on youth users of social media. But nothing in the record suggests, for instance, that teens suffer from mental health disorders from using a dictionary or weather app, even though those apps are age-restricted and subject to parental override under the Act in the same way as social media. Because it bans minors from downloading apps and content from all apps, not a narrowly tailored subset of apps deemed, for example, harmful or addictive based on evidence, the law is more over- and under- inclusive than HB 18, which this Court previously enjoined.

That’s a federal judge pointing out that Texas wants to age gate dictionary apps and weather apps using the same justification as social media. No evidence. No tailoring. Just vibes.

That’s not how anything works.

Of course, this is just in the district court, and Judge Pitman has been down this road before. He was the judge who initially blocked Texas’ content moderation law, which was overturned by the 5th Circuit (who was later overturned by the Supreme Court). He also blocked an earlier attempt at age verification.

Here, Texas has already announced its intent to appeal, and knowing the Fifth Circuit’s twisted views of the First Amendment (they’re not fans, unless it’s to limit private companies from moderating MAGA speech), who knows how long this particular ruling will last.

For now, we have a ruling that does what courts are supposed to do: demand that the government actually prove its case before trampling constitutional rights. Pitman’s built a detailed factual record here—one that documents Texas’s complete failure to provide evidence, identify less restrictive means, or narrowly tailor its restrictions. That matters, even if the Fifth Circuit tries to ignore it.

And the core message remains: you can’t just run into federal court screaming “but think of the children” and expect judges to hand you a blank check to age gate the entire internet.

Filed Under: 1st amendment, age gating, age verification, free speech, ken paxton, robert pitman, social media, strict scrutiny, texas