Federal Court Blocks Tennessee’s Unconstitutional Age Verification Law
As Michael McGrady pointed out in his recent guest post for Techdirt, nearly 41 percent of Americans subject to age verification laws targeting porn and, of course, porn consumers. An emboldened pseudo-theocratic wing of the Republican party is taking everything old and unconstitutional and making it new again, presumably in hopes of sliding it past courts now staffed with Trump’s personal picks.
Fortunately, that percentage has dipped a bit in recent days. For how long remains to be seen, but the Free Speech Coalition (which is also suing the state of Florida over similar legislation) has secured an injunction blocking Tennessee’s age verification law.
The federal court decision [PDF] is a thoroughly enjoyable read, not just for its unabashed support for First Amendment rights, but also its extremely choice selection of citations, asides, and direct quotes from the Free Speech Coalition’s lawsuit.
The first paragraph is an absolute banger:
The First Amendment is not shy in its protective sweep. It sits at the top of our Bill of Rights as the “star in our constitutional constellation” because its light reaches orthodox and unorthodox expression alike. 303 Creative LLC v. Elenis, 600 U.S. 570, 584–85 (2023) (quoting West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943)). To be sure, freedom of speech is not absolute. But the door preventing the state from intruding into this area “must be kept tightly closed and opened only the slightest crack necessary” to promote state interests. Stanley v. Georgia, 394 U.S. 557, 563 (1969) (quoting Roth v. United States, 354 U.S. 476, 488 (1957)). Based on the record at this stage, it appears that Tennessee has wedged its foot in the door farther than the Constitution will likely tolerate.
The second paragraph is just as solid.
The Protect Tennessee Minors Act stands in a graveyard full of similar content-based restrictions at the state and federal level that lived—and died—before it. It imposes criminal and civil liability on any individual or commercial entity that publishes a website comprised of one-third content that is harmful to minors without first verifying that each visitor is at least eighteen years old. 2024 Tenn. Pub. Acts, ch. 1021, § 1 (to be codified at Tenn. Code Ann. § 39-17-912) (“PTMA”). Plaintiffs seek to enjoin the Attorney General from enforcing the PTMA before it becomes effective on January 1, 2025. Not only does the PTMA suffer from the same First Amendment fatalities as the state and federal laws that came before it, it also uniquely exacerbates those shortcomings in its overbreadth.
And the state’s “for the children” protestations are swept away before the third paragraph is even complete.
The legislature has a compelling interest in protecting children from harmful content, and that is uncontested. But in its attempt to protect children, the State will unavoidably suppress a large amount of speech that adults have a First Amendment right to give and receive. The legislature’s goal, however admirable, does not allow it to undermine an adult’s freedom of speech. Neither the legislature nor this Court can turn a blind eye to the Constitution.
Ah. That’s refreshing. Just a pure blast of constitutional righteousness, both in its original form and the way the hippies use the term. (Just to make it clear, my compliment of choice is “groovy,” which is similarly dated slang but at least was last uttered by a man with a chainsaw for an arm.)
The law is also ridiculous, on top of being unconstitutional. It mandates hourly verification of the user’s age. It requires websites that contain more than a third “harmful to minors” content (also vaguely defined) to collect and keep users’ personal information. However, the government graciously allows sites to use any “commercially reasonable method” to accomplish this intrusion, but does not provide any examples of what methods the state would find acceptable.
A footnote quoting one of the targeted websites makes it clear how impractical and unworkable this law is (here discussing the one-third content specification), even if it were constitutional.
“I do not know whether to evaluate the running time of the videos, the lines of code required to display the videos, the size of the files containing viewable content, or some other metric. For that matter, I do not know how to compare text to photos, or photos to videos.”
But it isn’t constitutional, so the court doesn’t need to address that specific complaint. However, it does take care to point it out because idiot legislators should be forced to confront the stupidity of their own mandates.
Speaking of being forced to confront, the court drops another bit of bench-slapping on the state, with another pithy citation.
In its crusade against internet pornography, Tennessee would “burn the house to roast the pig.” See Butler v. Michigan, 352 U.S. 380, 383 (1957). The First Amendment undoubtedly requires more precision than this kind of scorched-earth approach.
The state argued that this was no different that the recently challenged anti-drag show law that was recently (and narrowly) allowed to continue existing by the Sixth Circuit Appeals Court. But this court says these aren’t remotely the same thing, even if both laws supposedly have the same goal: preventing kids from accessing adult content.
The AEA’s burden on adult speech is not comparable to the burden at issue here. There is a stark difference between requiring a brick-and-mortar location to spare one second to check government issued identification and requiring a website to pay a substantial amount of money to a third party to electronically verify a user’s age in a manner that is not easily circumvented. Moreover, while an individual attending an event in-person has already given up some modicum of privacy to do so, an adult inside his home using his computer to access a website has not.
Only legislators who believe it’s their god-given duty (and I mean that possibly literally) to foist their morality on everyone else would think this sort of thing would survive a constitutional review.
[T]he PTMA forces adult content creators to take costly measures to display constitutionally protected material, and it forces adult content consumers to give up their privacy to access material they have a constitutional right to access. The PTMA creates this barrier to constitutionally protected speech even if two-thirds of the content available on the website is not deemed harmful to minors.
And only legislators more interested in censoring than governing would allow this garbled language to land on the governor’s desk unaltered, replete with contradictions and a total lack of internal coherency.
Even if the Court narrowly construes subpart (i) to make it redundant, this would not save the PTMA. Subpart (ii) is separated from subpart (i) of subsection (A) by another disjunctive. PTMA § (b)(5)(A). This means that content that “principally consists of” an enumerated organ or act is subject to the regulation even if it is not “designed to appeal to or pander to the prurient interest” and even if it is not “sexually explicit and harmful or inappropriate for minors.”
Moreover, there is no requirement for these forbidden depictions to be patently offensive. In essence, “text” that “principally consists of” the words “pubic hair, vulva, vagina, penis, testicles, anus, or nipple” does not even have to be “harmful” for minors to fall under the definition of “content harmful to minors.” The AG argues that this is irrelevant because the catch-all provision at the end requires that the text be measured by its value. But that catch-all provision would not solve this problem—just because content may not have serious value for minors does not make it harmful for them. Plaintiffs emphasize, and this Court agrees, that under the PTMA, the mere phrase “the human nipple” and the symbols “(o)(o)” would be subject to the age-verification requirement so long as they lack serious value for minors, even though they would not qualify as obscene.
The state gets completely owned here. It’s 36 pages of the court repeatedly telling legislators and the state AG that they are wrong, occasionally interrupted by a little procedural paperwork dealing with standing and standards of review. Every argument raised by the state is shut down. Every citation immediately countered.
For now, Tennessee’s age verification law is dead. But hope springs eternal in the hearts of these haters. It won’t stay dead forever. However, the First Amendment isn’t going anywhere either, and this particular needle doesn’t appear to have a hole that can be threaded, no matter how many times legislators head back for a rewrite.