Testimony of Ben Sperry on Montana HB 408
I. Introduction
Thank you for the opportunity to discuss Montana’s HB 408 here today. My name is Ben Sperry, and I am a Senior Scholar of Innovation Policy for the International Center for Law & Economics (ICLE).
ICLE is a nonprofit, nonpartisan research center working with a roster of more than eighty academic affiliates and research centers from around the globe.[1] Our mission is to promote the use of law & economics methodologies to inform public policy debates. We believe that intellectually rigorous, data-driven analysis will lead to efficient policy solutions that promote consumer welfare and global economic growth.
My research focuses on the intersection of civil liberties and government regulation, including in the areas of online speech and safety. I have written extensively in the past few years about the First Amendment implications of policy approaches to protecting minors on the Internet, including age verification and parental consent proposals.[2]
HB 408, as proposed, would appear to suffer from First Amendment defects under current Supreme Court precedent. A better approach to protect minors online would invest in the education of parents and minors on how to use available tools and practical means to avoid online harms.
II. The First Amendment Law & Economics of Device Filter Mandates[3]
It is clear that access to the internet offers both tremendous benefits as well as potential harms, including and perhaps especially for minors.[4] An important public policy question is how to negotiate the tradeoffs between protecting minors from those harms without unnecessarily restricting both minors’ and adults’ access to lawful speech.
In the language of law & economics, the question is which party is the lowest-cost avoider of harms, bearing in mind relevant transaction and social costs.[5] Among the relevant social costs in this context is the risk of collateral censorship. The law should impose the cost of avoiding the harms of internet usage on the person(s) who can do so at the lowest cost. In the language of First Amendment jurisprudence, the question is whether a particular restriction on speech is the “least restrictive means among available, effective alternatives.”[6]
Here, HB 408 would require a device activated in the state to:
- contain a filter;
- ask the user to provide the user’s age during activation and account setup;
- automatically enable the filter when the user is a minor based on the age provided by the user as provided in subsection (2);
- allow a password to be established for the filter;
- notify the user when the filter blocks the device from accessing a website; and
- provide the option to deactivate and reactivate the filter for a user who is not a minor and who has the filter password.
Under the bill, civil liability would attach to the device manufacturer if the device does not have a filter and minors are able to access obscene material while using the device. A filter is defined as a “generally accepted and commercially reasonable software used on a device that is capable of preventing a device from accessing or displaying obscene content through internet browsers or search engines owned or controlled by the manufacturer in accordance with prevailing industry standards, including blocking known websites linked to obscene content via mobile data networks, wired internet networks, and wireless internet networks.”
Many device makers have already created tools to help parents protect their children online, including protections similar to those proposed by the device-filtering bills.[7] Indeed, Apple recently published a white paper detailing its efforts and new features aimed at giving parents more ability to monitor and control what their kids access.[8] But it remains far from clear that mandating device filters is costless.
The most important considerations for determining the extent of potential collateral censorship that might arise from device-filtering bills will include whether the law will require age verification and parental consent to access all content or just illegal content, as well as how much information would have to be collected to verify age or gain parental consent. To the extent they raise the transaction costs to access lawful content, age-verification and parental-consent laws may violate the First Amendment.[9]
After Supreme Court oral arguments in Free Speech Coalition v. Paxton, it seems likely the Court will reconsider its jurisprudence on online age verification. However, it is likely that they will limit their analysis to age-verification requirements that apply to content that is illegal for minors to access.[10] Assuming that will be the case, device-filtering laws that are aimed at restricting minors’ access to content that is obscene to them (i.e., primarily online pornography) will have a better chance at surviving First Amendment scrutiny than laws that would restrict access to content that is lawful for minors to access.
HB 408 is a mixed bag on this front. It is good that it focuses on “obscene content” which would be illegal for minors to access. But it still must do so in a way that is neither seriously overinclusive nor underinclusive. In the language of Brown v. Entertainment Merchant’s Association, HB 408 “straddles the fence between (1) addressing a serious social problem and (2) helping concerned parents control their children. Both ends are legitimate, but when they affect First Amendment rights they must be pursued by means that are neither seriously underinclusive nor seriously overinclusive.”[11] In that case, the late Justice Antonin Scalia wrote that California’s law forbidding minors from buying violent video games was “seriously underinclusive… because it permits a parental or avuncular veto” and “as a means of assisting concerned parents it is seriously overinclusive.”[12]
Under the HB 408, parents appear to retain the ability to turn off the filter. This might be because the law implicitly recognizes that filters may end up restricting access to lawful content (overinclusive) and thus it preserves parents’ ability to grant their children access to that content. But it may also effectively undercut the argument that the bill is narrowly tailored to the state interest of protecting children from obscene content (underinclusive) by extending parental consent to allow their children to access illegal content. In other words, this type of device-filtering law is either restricting speech too much in the name of paternalism or failing to live up to its purpose of protecting minors from obscenity like online pornography.
The requirement for device manufacturers to “ask the user to provide the user’s age during activation and account setup” is also far from clear. Is it enough to allow minors or parents to set up accounts as the device is being activated by simply inputting the birth dates of minor users? Requiring parents or minors to upload some kind of authorized document proving age would pose privacy risks, as well as presenting a transaction cost that many may be unwilling to bear. Low-cost age-verification measures like biometrics or zero-knowledge proofs might be possible, but it’s unclear how these would apply under HB 408.
Requiring too little data would likely lead to easy evasion of the law’s protections—whether it’s a minor user setting up the device and lying, or a parent helping their child to do so. Requiring too much data would raise transaction costs to the point that access to lawful speech for both adults and minors could be affected. The challenge for HB 408 is finding a way to require exactly the right amount of data to prove age, while not unduly restricting the ability of both minors and adults to access First Amendment-protected content.
Moreover, while online age-verification technology has clearly improved since the Supreme Court last considered the question, so have the tools to help parents and minors avoid harmful internet content. As mentioned above, Apple has introduced even more features to help parents protect their children while using Apple devices, but there are also tools available beyond the device level.[13] Montana could do far more to promote technological literacy for both parents and minors, while also promoting adoption (and creation of even more) of these tools. As the U.S. District Court for the Western District of Arkansas recently found when enjoining Arkansas’ age verification and parental consent law:
Age-verification requirements are also more restrictive than policies enabling or encouraging users (or their parents) to control their own access to information, whether through user-installed devices and filters or affirmative requests to third-party companies… To the extent that parents are not aware of these tools, notice to parents of their availability is a much less restrictive means of promoting the State’s interest.[14]
III. Conclusion
The best way to protect children online is to empower parents. But laws that require content filters on devices used by minors could lead to collateral censorship that would violate the First Amendment. Montana should refocus on helping parents and minors to navigate the internet by using the technological and practical means available to them, rather than imposing new barriers that may impact access to lawful speech.
[1] About ICLE, Int’l Ctr. L. & Econ., https://laweconcenter.org/about (last accessed Apr. 6, 2025).
[2] See Ben Sperry, Int’l Ctr. L. & Econ., https://laweconcenter.org/author/bensperry (last accessed Apr. 6, 2025).
[3] This testimony is adapted from a blog post examining a similar bill proposed in Idaho. See Ben Sperry, The Law & Economics of Online Age Verification and Parental Consent: Device-Filtering Edition, Truth Mark. (Mar. 12, 2025), https://truthonthemarket.com/2025/03/12/the-law-economics-of-online-age-verification-and-parental-consent-device-filtering-edition.
[4] See, e.g., Nat’l Acad. Sci. Engineering & Med., Social Media and Adolescent Health 4 (2023) (“[T]he use of social media, like many things in life, may be a constantly shifting calculus of the risky, the beneficial, and the mundane.”); id. at 92 (concluding after an extensive review of the literature that it “did not support the conclusion that social media causes changes in adolescent health at the population level”).
[5] See, generally, Ben Sperry, A Coasean Analysis of Online Age-Verification and Parental-Consent Regimes (ICLE Issue Brief 2023-11-09), available at https://laweconcenter.org/wp-content/uploads/2023/11/Issue-Brief-Transaction-Costs-of-Protecting-Children-Under-the-First-Amendment-.pdf.
[6] Ashcroft v. American Civil Liberties Union, 542 U.S. 656, 666 (2004).
[7] See, e.g., Families, Apple, https://www.apple.com/families (last accessed Apr. 6, 2025); How to Set Up Parental Controls on Google Play, Google, https://support.google.com/googleplay/answer/1075738 (last accessed Apr. 6, 2025); Set Parental Controls on Fire TV, Amazon, https://www.amazon.com/gp/help/customer/display.html?nodeId=GJF9SGT5262FJLQE (last accessed Apr. 6, 2025); How to Block Content Using Parental Controls, Roku, https://support.roku.com/article/208755938 (last accessed Apr. 6, 2025); Microsoft Family Safety, Microsoft, https://www.microsoft.com/en-us/microsoft-365/family-safety (last accessed Apr. 6, 2025).
[8] See Helping Protect Kids Online, Apple (Feb. 2025), available at https://developer.apple.com/support/downloads/Helping-Protect-Kids-Online-2025.pdf.
[9] See Sperry, supra note 5.
[10] For more, see Ben Sperry, Will the Supreme Court Change Its Mind About Age Verification, Truth Mark. (Jan. 17, 2025), https://truthonthemarket.com/2025/01/17/will-the-supreme-court-change-its-mind-about-age-verification.
[11] Brown v. Entertainment Merchants Ass’n, 564 U.S. 786, 805 (2011).
[12] Id.
[13] See Children Online Safety Tools, Compet. Enterp. Inst., https://cei.org/children-online-safety-tools (last accessed Apr. 6, 2025).
[14] NetChoice v. Griffin, 2025 WL 978607, at *13-14 (W.D. Ark. Mar. 31, 2025).