Arkansas Social Media Age-Check Law’s Demise Threatens Others
Ben Sperry, senior scholar of innovation policy at ICLE, is quoted in this Bloomberg Law article on an Arkansas social media age-check laws’. Read the full story here.
Sperry said courts have cited the US Supreme Court’s 2004 decision in Ashcroft v. ACLU —which asked “whether the challenged regulation is the least restrictive means among available, effective alternatives”—to reach the same conclusion in other cases relating to social media and obscene material online.
Ashcroft affirmed a preliminary injunction blocking a federal verification scheme that required an age certificate or financial account because it was was more restrictive than simply filtering out pornography.
Sperry also noted it will be interesting to see how the high court rules in a pending adult entertainment industry challenge to a Texas law that requires age gates for sites with significant amounts of pornography.
During oral arguments in Free Speech Coalition v. Paxton, the justices seemed to say that states should be able to keep kids from viewing online pornography, but expressed concern that an age verification gate for adult sites could still run afoul of the First Amendment.
“I think what’s more likely is they’ll just distinguish it,” Sperry said. Age verification may be the least restrictive method to prevent children from seeing adult content, but “I think the Supreme Court wouldn’t go so far as to say that accessing lawful speech, which is mostly what’s on social media,” should be behind an age gate, he said.
An Arkansas-style approach “is not going to be fruitful,” said Ben Sperry, a scholar at the International Center for Law & Economics who writes about age verification policies.
“The question is who should be in charge of avoiding those harms,” Sperry said. Especially if “there’s tremendous benefits to using the internet as well.”