Age Verification

Consider candy. Being composed primarily of sugar, it's not recommended to eat too much of it as part of a healthy diet. Some would even describe it as harmful. This holds true for minors as well, despite their proclivity to seek it out intentionally for consumption. But does this imply that candy is inherently harmful to minors? You would be forgiven for assuming so, but this is actually not the case.

Sugar is an essential nutrient, an energy source for the human body. It is not foreign to us. And yet, we still generally want to limit the candy consumption of minors, for the good of their health. Something that is natural can indeed be harmful in excess, but it is also true that something that appears to be causing harm might well be perfectly natural to us.

This law doesn't attempt to regulate all speech that might be the slightest bit arousing. Instead it draws its boundary on speech deemed "obscene for minors". This is the candy.

The effect of this law is like age-gating the consumption of candy. The reason given is that candy is harmful to minors. The logical fallacy at work here is that candy, being sugar, is not inherently harmful to minors; it is only harmful in excess.

We might describe candy as a food that is:

1. Appealing primarily to the sweet tooth of minors
2. Patently offensive to feed to minors
3. Lacking serious nutritional value for minors

The problem with using this definition is that it's entirely subjective whether it's "offensive" to feed your child candy. Some will say it's always offensive just because it's candy which is always bad. Others will only think so if the total amount of sugar consumed becomes excessively high. Still more will say it's never offensive because the parent gets to decide if and when they grant their child the right to self-regulate their own candy intake, and we should respect that choice.

Most parents allow their children to have candy from time to time, even though it isn't providing any serious nutritional value. It does however provide the benefit of sensory enjoyment, which is the reason why kids want it to begin with. Although you would be a poor parent to allow your child to eat candy all the time, in all but the most extreme cases it is the right of the parent to allow the consumption of candy, even if other parents might judge you poorly for it.

Trouble starts brewing when you pass a law to age-gate candy, which requires you to decide what is and is not considered "candy". Does having too much added sugar make a food into candy? Is fruit candy for being sweet, even if the sugar isn't added? Even if one could argue the case against it, apples and cereal would probably end up being age-gated under the threat of legal action.

The law in question here causes just these sorts of problems. There has never been a clear, definitive dividing line between the categories, leaving it as a problem for the courts. For consumers, the end result is over-eager censorship that goes beyond the boundaries of the legal definition.

Sexual interest is part of being human. As this analogy demonstrates, there's nothing inherently harmful about the content this law seeks to regulate. The presumption of harm comes about from seeing the harmful effects of reckless consumption. This is anecdotal evidence that in no way proves any claim of inherent harmfulness. A single gumdrop isn't going to hurt anybody.

Intimate imagery should never be misconstrued as a foreign, harmful substance, and the state should not be allowed to regulate it as such. These dicussions and decisions should rightfully remain within the confines of the family unit, as is the case regarding candy consumption. This law seeks to breach that sacred boundary to impose its own worldview on every American family.

This law takes the particular ideological point of view that candy, or speech obscene to minors, is always bad and therefore age-gates absolutely all of it. This idea lines up perfectly with the religious teaching, held by multiple religions, though not all, that lust is a "sin".

The first amendment protects the rights of these people to hold their view, but it equally protects the rights of other people not to hold this view. This is the freedom of conscience. To respect this freedom of conscience for all people, the government may not pass a law that promotes or favors one particular religion or religious point of view above others. This is the establishment clause of the first amendment.

To avoid violating this, the law claims to have the secular purpose of preventing harm to minors. But this claim just restates that same religious ideology, that content of this type is inherently harmful to minors, essentially by definition. As is true of candy, it is merely an opinion that some hold and others do not, that the thing in question is "patently offensive" for minors.

Every time something gets blocked that isn't actually "patently offensive" according to that child's parents for their child's given age, that minor's free speech rights are violated. In our tradition, such first amendment violations are considered harmful. And again according to our tradition, when forced to choose between violating someone's rights or failing to enforce the state's interests, we choose against violating rights. This is why even suspected criminals are considered "innocent until proven guilty".

This law takes just the opposite approach, assuming content ought to be blocked as a rule, without care for whether free speech rights are being violated in the process. It places state interests above constitutional rights, and makes no attempt to shield minors from the harm it causes to their speech rights.

"The loss of first amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury."

–Roman Catholic Diocese of Brooklyn v. Cuomo

We believe this law fails to establish a secular purpose for itself. Of course banning candy for minors could prevent harms associated with eating too much candy, but that is just a side-effect of the law, not it's purpose. It's purpose is to restrict minors' access to candy because it believes that candy is inherently harmful to minors. The purpose is religiously-motivated ideology. The law clearly favors one such ideology over others, leaving those who don't believe in it feeling like second-class citizens.

There is a long history in this country of imposing religious views of sexuality onto everyone. Things like contraception and specific sexual acts used to be criminalized, until the supreme court finally realized that people have the right to make these choices for themselves, and ended the oppression.

One benefit of the candy analogy is that it shows the way someone might view this issue without the attached moral stigma. Even if a majority still holds this stigma, the first amendment says we don't have to believe in it. Those of us who don't, still deserve to be treated equally under the law.

Most parents don't want their children viewing most adult content most of the time. This is what the law claims to help with. If the law were a tool that could be turned on or off at will, this promise would be fulfilled without issue. Unfortunately, this law does not provide parents with a tool, but rather a cage.

The restrictions are mandatory, and beyond the reach of parents to control. What gets censored and what does not is decided by the state government, the courts, and corporate lawyers, according to their risk assessment. There is no mechanism whatsoever to ensure that content minors have a first amendment right to access won't become a victim of censorship. Individual parents are not in control here, and have no way to opt-out.

This is not an exercise of personal liberty, parental authority, or rational judgment. This is a censorship campaign, driven by ideology and fear, and forcibly imposed on the whole population by the will of the majority, who want the state to do their job of protecting their kids for them, as a benevolent king might.

But the constitution was not written to protect this desire to be ruled by a king. It was written to protect the individual liberties of those seeking sovereignty over their own lives and families, along with all the responsibilities that necessarily come with it.

We therefore contend that this law violates the rights of parents that the constitution intends to protect.

Just recently in Mahmoud v. Taylor it was held that the "indoctrination" of school children into beliefs that pose an "objective danger" to the parental right to direct their children's religious upbringing was unconstitutional. This confirms the principle that the authority of the state does not supersede the rights of parents to make these sensitive choices for their own children, even outside of the home.

The free exercise clause protects the rights of parents to provide religious instruction to their children, including views on sexuality. However, this also works in reverse. Parents have a right to refrain from teaching their children views held by other religions, or to teach them contrary views.

Similar to the books in Mahmoud, this law sends a normative message. Minors are blocked from accessing content because the state believes they should not see it. Such a moralistic law that aligns with a foreign religious teaching would surely frustrate a parent's attempt to teach their children an opposing view, such as that "there's nothing inherently wrong with feelings of sexual desire".

When a parent says something is okay for them to see, but then the state comes in and says it's not, this creates an ideological conflict between the parent and the state. With this law in place, the state ideology prevails; the constitution demands otherwise.

This law is based on the mistaken assumption that the parent and the state will always agree on what should be censored. This is not so. This law intends to place the state authority above the parent in matters pertaining to sexuality, a topic just as sensitive as religion. This imposition undoubtedly poses an objective danger to a parent's attempt to shield their child from ideologies they may find repugnant to the values they wish to instill in them.

This law does not imagine that a parent might ever want to grant access to a site that has been censored, and it provides no reasonable way of doing so. A parent would need to commit an act of identity fraud by sharing either their ID, credit card, or face every time their child or teen wanted access to such a site. What if information on sexual health, LGBTQIA+ issues, or art gets censored?

And what happens if this program fails to be as effective as promised, like the "abstinence only" education classes in schools? What if it makes the problem worse? Parents have no choice but to accept the ill effects of foolish legislation. Good decisions are rarely made under pressure.

Teenagers are sexual beings with natural curiosity. Must all parents place their trust in this attempt to repress this curiosity, rather than choosing to provide limited access to content they themselves have approved of? Parents should be allowed to decide.

If parents believe that their kids will find a way around the age gates anyway, perhaps even by stealing their own credit card or ID, they deserve the option to take the situation into their own hands.

Responsible parents who value liberty and want to get involved in this issue for their own children have a right to keep these options open, which this law forcefully prevents. The parents who are best served here are the ones that don't want to take the time to think through their options and decide according to their own situation and family values.

It must also be noted that internet access often occurs inside the home, especially with regard to the content this law regulates. This should be the place where parental rights are at their strongest. The way the law operates, it's as if government agents are barging into kids' bedrooms and ripping books out of their hands.

Furthermore, just as parents have the right to raise their own children, minors also have a moral right to receive discipline or be restricted in their activities in the privacy of their own home by none other than their parent or guardian, with whom they may freely speak to discuss or criticize the circumstances of their upbringing.

The state government, for whom they cannot even vote, is not fit for this task. This law claims to be about protecting children, yet it seeks to forcefully violate their will. This very act itself causes them psychological harm. Absent a sufficient secular reason to justify it, and without that loving parent-child relationship, this is an immoral act of agression against their rights as people.

Questions of values and what is appropriate for a given child at a given age must be decided on an individual basis, and these decisions can only be rightfully made at the level of the family unit.

This law imposes substantial burdens on several fundamental rights protected by the constitution. In addition to the religious and parental rights already discussed, there are also burdens placed on free speech and the right to privacy.

The choice of what religion to believe in or follow is constitutionally protected for all people. But if you believe in a religion that teaches the sinful nature of lust, that will heavily influence your attitude towards the type of speech this law regulates, which then determines how much you might be burdened by the law. And if you don't belong to one of these religions, that will heavily influence your attitude in the other direction, again determining how much you are burdened by it.

These two broad religious groups are impacted by the law in vastly different ways. One group receives the benefit of having their kids blocked from accessing content they never want them to access, while rarely if ever being burdened by the law themselves. The other group, if they have kids, receive occasional benefits, but have to shoulder all the burdens, including in their own parenting efforts.

The first group could always have achieved these same benefits by exercising their parental authority and utilizing software to whitelist or blacklist different websites. The second group has no way to avoid the burdens to their fundamental rights.

Additionally, children do not tend to stay children forever. Any benefits children might receive up front will be negated by being subjected to these burdens for the rest of their adult lives. This law completely fails to account for the fact that it is actively harming these future adults it claims to be protecting, an omission that only makes sense when we consider the ideology behind it. The law intends to provide overall benefit only to those who agree with its ideology, while everyone else is meant to suffer as punishment.

While the religious perspective is constitutionally important to consider, this also holds true for the secular groups composed of those who either do or don't personally enjoy such online content. Remembering that the choice of what speech one chooses to access is a fundamental right protected by the first amendment, we should be extremely suspicious of any law that infringes several fundamental rights of one such group in order to provide benefits to another. The state has no more authority to do this than it does to treat people differently because of how they vote.

Compared to background checks being required to buy a gun, where everyone, even gun enthusiasts, benefit from the prevention of minors or mentally unstable people from having access to dangerous weapons, we have no such universal benefit in this case. The benefit only applies to some people, and even then, they could have achieved it on their own through proper parenting and digital literacy; the burdens are also far more substantial, and involve several of our fundamental rights. In contrast, there is no easy way for an individual to protect themselves or their family from indiscriminate gun violence.

In the final analysis, this law does not provide a net benefit to a given citizen over the course of their life; it actually causes them harm. As a child, they are potentially blocked from seeing something they shouldn't be seeing at their age, but that sole benefit comes along with free speech violations every time the censorship is overzealous according to their family's values. Then when they become an adult, they receive the numerous burdens herein described until the day they die. Adulthood being much longer than childhood, this is quite significant. This law causes overall harm to American citizens. Harming citizens is not a legitimate government interest.

The only situation where this law does not cause more harm than benefits to a given citizen is when that citizen is born and raised into a family that teaches the religious values this law espouses, and they choose to hold onto that belief throughout their entire adult life, and therefore do not seriously engage with the content this law regulates, thereby avoiding any of the law's harms and burdens.

The difference in the benefit to burden ratio between the two groups is massive, both from the religious and secular perspectives. One group receives a net benefit, but everyone else receives net harm. We believe this violates the equal protection clause, since similarly situated people are being treated differently without a legitimate government reason.

Also, since the law's effects cause more overall harm than good, we contend that this sinks the law below the intermediate scrutiny threshold required to not be in violation of the free speech clause of the first amendment, so it is also in violation of that.