WASHINGTON, D.C. – in a three-part report published in last month, the Congressional Research Service (CRS) summarized for members of Congress the CRS’ view on the current effort by several states to mandate age verification by adult websites.

As the CRS describes itself, the organization “serves as shared staff to congressional committees and Members of Congress.”

“CRS experts assist at every stage of the legislative process — from the early considerations that precede bill drafting, through committee hearings and floor debate, to the oversight of enacted laws and various agency activities,” the research institute adds on its website.

In other words, the CRS functions like a nonpartisan legal advisor to members of Congress. In this case, CRS has endeavored to school members of Congress on the history, current context and potential constitutional problems flowing from various age verification measures.

It is instructive to read these reports, as they provide a window into the thinking of those who advise our elected officials in Washington. Whether those elected officials heed the advice and pay attention to the analysis provided by CRS is another story, of course, but it’s still interesting to hear what the CRS has to say about these statutes.

In Part 3 of the report, titled “Select Constitutional Issues,” CRS attorney/advisor Eric Holmes calls attention to the courts’ concern over the potential chilling effect of age verification measures, including chilling speech that falls outside the bounds of the age-verification mandates.

“Lower courts have suggested that age-verification may further burden adult speech by deterring adult users who are not willing to provide identifying information to access potentially embarrassing content,” Holmes writes. “In a different context, the Supreme Court held that a requirement that cable television operators block sexual programming unless a viewer requests access to the programming in writing would ‘restrict viewing by [cable] subscribers who fear for their reputations’ should their request be made public.”

In recent years, however, the nature of the technologies involved in delivering, assessing, filtering and blocking online content have changed significantly – and Holmes believes those changes could sway the court’s view on age-verification requirements as a legal matter.

“The internet looks very different in 2023 than it did in 1997, or even 2004,” Holmes notes. “How changes in technology might impact a court’s narrow tailoring analysis — potentially in ways that distinguish age verification laws from laws previously declared unconstitutional — may be the biggest open question in assessing the constitutionality of new laws.”

Holmes adds that if the courts decide age verification technology has grown more effective since this issue was raised, “courts may be more willing to accept that requiring age verification can further a government interest in protecting minors.”

“Likewise, if age verification solutions have become cheaper and more widely available, adopting such solutions may place less of a burden on website operators,” Holmes adds. “With respect to alternatives, federal and state lawmakers introducing age verification legislation have attempted to stress the shortcomings of available alternatives. For example, a bill from the 117th Congress that would have required age verification for certain websites discussed at length the ineffectiveness of blocking and filtering software to prevent minors’ access to pornography.”

While the courts have previously shot down laws like the Communications Decency Act (CDA) and Child Online Protection Act (COPA), Holmes observes the court might take a different view of age verification statutes, if the governments defending these statutes can persuade them age verification laws are less restrictive than the previously enjoined statutes.

“Age verification laws may be less restrictive than the CDA or COPA,” Holmes writes. “The Reno Court listed potential means of narrowing the CDA, including ‘making exceptions for messages with artistic or educational value, providing some tolerance for parental choice, and regulating some portions of the Internet—such as commercial Web sites—differently from others.’ State age verification laws have incorporated these means to varying degrees. For example, Louisiana’s pornography age verification law applies only to commercial entities and covers only material that ‘lacks serious literary, artistic, political, or scientific value for minors,’ and Utah’s social media age verification law allows minors to use social media with a parent’s consent.”

Nothing in Holmes’ analysis suggests defending state age verification laws will be a slam dunk for the states, and his review doesn’t touch on some of the arguments being made against these laws in court. Nonetheless, any member of Congress who supports these state age verification laws – or is thinking about crafting something similar at the federal level – might be heartened by what Holmes has to say, in that he suggests the state laws might be able to survive court scrutiny, after all.

On the other hand, Holmes cautiously notes that the key questions about these statutes are unresolved, from the court’s perspective.

“A law’s ability to withstand challenges will depend principally on whether the law is content based or content neutral and how narrowly tailored the law is,” Holmes writes. “Even if a law is content neutral, it may pose significant First Amendment issues. For example, a law that targets social media may be less clearly content based than a law that targets pornography, but minors likely have a greater interest in accessing social media than in accessing pornography. Questions of narrow tailoring will likely concern how much protected speech an age verification law affects and how effective age verification is at achieving its legislative purpose in comparison to alternatives.”

To read the CRS report on Online Age Verification in full, follow the links below:

Online Age Verification (Part I): Current Context

Online Age Verification (Part II): Constitutional Background

Online Age Verification (Part III): Select Constitutional Issues

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