The Supreme Court Already Explained Why California’s Age Appropriate Design Code Is Unconstitutional

In July of 1995, Time Magazine published one of its most regrettable stories ever. The cover just read CYBERPORN" with the subhead reading: EXCLUSIVE A new study shows how pervasive and wild it really is. Can we protect our kids-and free speech?" The author of that piece, Philip Elmer-Dewitt later admitted that it was his worst" story by far."

The new study" was from a grad student named Marty Rimm, and... was not good. The methodology was quickly ripped to shreds. Wired basically put together an entire issue's worth of stories debunking it. Mike Godwin tore the entire study apart noting that it was so outrageously flawed and overreaching that you can't miss the flaws even on a cursory first reading." Professors Donna Hoffman and Thomas Novak absolutely destroyed Time Magazine for the reporting around the study. And Brock Meeks did an analysis of how Rimm and his colleagues were able to fool so many people. Meeks also discovered that Rimm was recycling his survey data for use in a marketing how-to book called The Pornographer's Handbook: How to Exploit Women, Dupe Men, & Make Lots of Money." Eventually, Rimm was called The Barnum of Cyberporn."

And yet... he got his Time Magazine cover.

And, that cover resulted in a huge moral panic over porn online. And that huge moral panic over porn online helped give Senator James Exon the ammunition he needed to convince others in Congress to support his Communications Decency Act as a way to clean up all that smut from the internet. (You may recognize the name of the Communications Decency Act from Section 230 of the Communications Decency Act" or just Section 230," but that was actually a different bill-the Internet Freedom and Family Empowerment Act-that was written as an alternative to Exon's CDA, but because Congress is gonna Congress, the two bills were simply attached to one another and passed together.)

Senator Exon, apparently inspired by the Time Magazine story, began downloading and printing out all of the porn he found on the internet and put it in a binder-referred to as Exon's little blue book-to show other Senators and convince them to pass his CDA bill to stop the porn that he believed was polluting the minds of children. He succeeded.

The following year, the Supreme Court threw out the entirety of Exon's CDA (leaving just Section 230, which was the IFFEA) in the Reno v. ACLU decision. As Justice Stevens wrote in the majority decision:

In order to deny minors access to potentially harmful speech, the CDA effectively suppresses a largeamount of speech that adults have a constitutional right toreceive and to address to one another. That burden on adultspeech is unacceptable if less restrictive alternatives wouldbe at least as effective in achieving the legitimate purposethat the statute was enacted to serve.

He also wrote:

It is true that we have repeatedly recognized the governmental interest in protecting children from harmful materials. See Ginsberg, 390 U. S., at 639; Pacifica, 438 U. S., at749. But that interest does not justify an unnecessarilybroad suppression of speech addressed to adults. As wehave explained, the Government may not reduc[e] the adultpopulation . . . to . . . only what is fit for children." Denver,518 U. S., at 759 (internal quotation marks omitted) (quotingSable, 492 U. S., at 128).40 [R]egardless of the strength ofthe government's interest" in protecting children, [t]he levelof discourse reaching a mailbox simply cannot be limited tothat which would be suitable for a sandbox." Bolger v.Youngs Drug Products Corp., 463 U. S. 60, 74-75 (1983).

Stevens, in particular, called out as burdensome the idea that speech should be suppressed if a minor might somehow come across speech intended for adults.

Given the size of the potential audience for most messages,in the absence of a viable age verification process, the sendermust be charged with knowing that one or more minors willlikely view it. Knowledge that, for instance, one or moremembers of a 100-person chat group will be a minor-andtherefore that it would be a crime to send the group an indecent message-would surely burden communication amongadults.

He also noted that it would be prohibitively expensive" for websites to verify the age of visitors. It also calls out undefined terms that can cover large amounts of non-pornographic material with serious educational or other value."

I raise all of this history to note that California's recently passed bill, AB 2273, the Age Appropriate Design Act has basically every one of those things that the Supreme Court called out in the Reno decision. Here, let's rewrite just some of the Reno decision for clarity. I did not need to change much at all:

In order to deny minors access to potentially harmful speech, the [AADC] effectively suppresses a large
amount of speech that adults have a constitutional right to receive and to address to one another. That burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve.

Knowing that, for instance, some minors are likely to access a website-and therefore create liability for the website-would surely burden communication among adults.

The entire premise of AB 2273 is strikingly similar to the premise behind Exon's CDA. Rather than a sketchy, easily debunked (but massively hyped up) research report from a grad student, we have a documentary from a British baroness/Hollywood filmmaker, which she insists proved to her that online services were dangerous for teens. The baroness now has made it her life's mission to basically wipe out any adult part of the internet in the belief that it all needs to be safe for kids. Not based on any actual data, of course, but rather her strong feelings that the internet is bad. She's produced a whole report about why spying on users to determine their age is a good thing. And she is a major backer of the bill in California.

She might not have a little blue book - and her laws may not have the same level of criminal liability that Exon's did, but the general concept is the same.

You start with a moral panic about the kids online." Note that data will generally be missing. You just need a few out-of-context anecdotes to drum up fear and concern. Then, you insist that Silicon Valley is against you" despite the fact that Silicon Valley has almost entirely stayed quiet in fighting these bills, because none of them want the inevitable NY Times headline about how they're fighting back against this nice baroness filmmaker who just wants to protect the children.

But the overall argument is the same. There is some content online that is inappropriate for children, and we cannot rest until that is all gone, and the entire internet is safe for kids - even if that wipes out all sorts of useful content and services for adults, and creates a ton of unintended consequences. But, I'm sure we'll get headline after headline about how we've saved the children.

So, if Governor Gavin Newsom decides to go forward and sign the bill into law, think of just how much taxpayer money is going to get wasted in court, for the courts to just point to Reno v. ACLU and point out that this law is way too burdensome and full of 1st Amendment problems.