Sixth Circuit Rolls Back Injunction Against Tennessee’s Unconstitutional Age Verification Law

Well, that didn’t take long. A short-lived win for civil liberties and the Free Speech Coalition has been undone by the Sixth Circuit Appeals court. The reasoning behind the roll back of the injunction are questionable, to say the least.

The Free Speech Coalition’s case against Tennessee’s age verification law was solid. Or, at least, the lower court certainly thought so.

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.

Of most concern was the disturbing amount of vagueness in a law that couldn’t seem to define what was or wasn’t covered by it. It also provided no guidance as to how sites were supposed to determine if the content they hosted was more than 30% pornographic. Here’s a quote from one affected site owner the lower court included as a footnote:

“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.”

It also provided no clear directions as to how to go about age verification, while saddling affected sites (and sites that might be affected if someone bringing action against them came up with 30% by using different math) with the burden of figuring this out on their own. No service or method was declared to be acceptable, meaning any choice made to comply with the law might end up being the wrong one.

The lower court said it was extremely intrusive (and obviously unconstitutional) to demand adults give up their privacy to access content they had every legal right to access. And it made even less sense to apply this imposition to users accessing sites where more than two-thirds of the content isn’t considered “harmful to minors” under the statute.

None of that matters to the Sixth Circuit. The law is good, says the appeals court, because some stuff on porn sites is objectively bad. It’s common sense arguments versus moral panic at the Sixth, and the moral panic-ists have the upper hand, at least for the moment. From the order [PDF] staying the injunction:

Tennessee’s law seeks to protect children from the devastating effects of easy access to on-demand pornography. These effects are well-documented; they include social disengagement, increased delinquency, mental health and body-image difficulties (especially for girls), riskier and earlier sexual behaviors and increased transmission of sexually transmitted diseases, increased objectification of women and stereotyping, and greater likelihoods of committing and suffering sexual violence. R. 29-2, Principi Study, PageID 480-82.

This shouldn’t be a surprise. One celebrated investigation of a leading pornography site found the site ‘infested with rape videos’ and described how it ‘monetizes child rapes, revenge pornography, spy cam videos of women showering, racist and misogynist content, and footage of women being asphyxiated in plastic bags.’ Nicholas Kristof, The Children of Pornhub, N.Y.
Times (Dec. 4, 2020). And that barely even scratches the surface. Searches for ‘girls under 18’
or ’14yo’ yielded hundreds of thousands of results. This content corrodes healthy childhood development and poisons impressionable minds; pornography sites will show kids ‘how to have
anal sex long before they’ve had their first kiss.’ Jonathan Haidt, The Anxious Generation: How the Great Rewiring of Childhood is Causing an Epidemic of Mental Illness 105 (2024).

Children can’t buy cigarettes or alcohol, much less visit a strip club, but in the online Wild West, anything goes for anyone of any age. Children’s easy access to hardcore internet pornography, made possible by modern computers and smartphones, is part of what one social psychologist has called ‘the Great Rewiring of Childhood.’ Id. at 35

Man, those citations. All bangers, all the time. “Principi Study” isn’t going to direct anyone to the study being cited (which may be this one, but also may not be this one). Next up is sex trafficking alarmist Nick Kristof, who hasn’t exactly covered himself in glory during his years of advocating for mass internet censorship. Jonathan Haidt is no better. He’s the person you go to when you want your biases confirmed. He’s spent years making things worse for kids (and for parents raising kids) while utilizing bad data and questionable assumptions to present himself as a potential savior of the youths.

That’s the counterargument presented by the court. It barely asks Tennessee AG Jonathan Skrmetti to argue anything more than “no, it isn’t” when confronting several well thought-out assertions of unconstitutionality.

The last citation is probably the worst:

What’s more, other circuits (and the Supreme Court) have let similar state laws go into effect. The Fifth Circuit vacated a preliminary injunction and determined that Texas’s age-verification law was likely constitutional because under Ginsberg v. New York, (1968), laws regulating speech that is obscene for minors need only satisfy rational-basis review. Free Speech Coal. v. Paxton, (5th Cir. 2024), stay denied 144 S. Ct. 1473 (mem.), cert. granted 144 S. Ct. 2714 (mem.). And when the Supreme Court granted certiorari, it declined to block Texas’s law pending appeal. 144 S. Ct. 1473 (mem.); 144 S. Ct. 2714 (mem.). The Seventh Circuit then stayed an injunction against Indiana’s age-verification law, letting the law go into effect while the Supreme Court considered the Paxton case.

What’s more, this certain appellate court that has spent the last few years engaging in some truly batshit interpretations of the First Amendment vacated an injunction and this Supreme Court, which has spent the last few years engaging in some truly batshit interpretations of all sorts of constitutional rights, didn’t put it back in place. And then another circuit entirely simply chose to hold off until an extremely relevant case was fully decided.

That’s not a judgment on the merits of the arguments in front of this court. This is just a judge clearly sympathetic to Tennessee’s case finding reasons to let the law go into effect while it tosses it back to the lower court with no clear instructions as to what it’s supposed to do with this quasi-op-ed the Sixth Circuit is pretending is an order that actually has something to say about the issues at hand.