Amicus Brief: Free Speech Coalition v. Paxton

Children today are deluged by harmful sexual material delivered through their smartphones, tablets, computers, and even smartwatches, negatively affecting their social and psychological development. In 2023, Texas enacted a law, H.B. 1181, to restrict minors’ access to such harmful content by requiring that online adult-content producers and distributors verify users’ age before allowing access to their sites. After a coalition of adult-website operators sued the state to prevent the law from taking effect, the district court found a violation of adults’ First Amendment rights and granted a preliminary injunction. The Fifth Circuit reversed, and the Supreme Court took up the case on the question of which standard of judicial review should apply, which sounds like a hyper-technical question but is important because regulations of speech almost never survive “strict scrutiny.”

Regardless of how the Court decides that question, however, today’s age-verification techniques should survive any level of scrutiny in light of recent developments in age-verification (AV) technology. The Manhattan Institute has filed an amicus brief alongside five distinguished scholars of technology, physics, law, and political science to explain how cutting-edge AV methods use zero-knowledge proofs, biometric age verification and estimation, and trusted third-party providers to protect privacy at minimal cost. Unlike older forms of AV that required uploading government-issued IDs or credit cards, today’s methods need not reveal any other information to age-restricted websites. Only the fact that the user is over a certain age is shared, protecting users’ sensitive information. By offering low-cost, privacy-preserving, user-friendly, and commercially reasonable solutions, these AV methods uphold adults’ free speech rights while protecting minors from accessing materials harmful to them.

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

John Ketcham is a fellow and director of state and local policy at the Manhattan Institute.

Tim Rosenberger is a legal fellow at the Manhattan Institute.

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