The Copia Institute Tells The Ninth Circuit That The District Court Got It Basically Right Enjoining California’s Age Design Law

States keep trying to make the Internet a teenager-free zone. Which means that lawsuits keep needing to be filed because these laws are ridiculously unconstitutional. And courts are noticing: just this week a court enjoined the law in Ohio, and a different court had already enjoined the California AB 2273 AADC law a few months ago.

Unhappy at having its unconstitutional law put on ice California appealed the injunction to the Ninth Circuit, and this week the Copia Institute filed an amicus brief urging the appeals court to uphold it.

There’s a lot wrong with these bills, not the least of which how they offend kids’ own First Amendment rights. But in our brief we talked about how it also offended our own speech interests. Publishing on the web really shouldn’t be more involved than setting up a website and posting content, even if you want to do what Techdirt does and also support reader discussion in the comments. But this law sets up a number of obstacles that expressive entities like Techdirt would have to overcome before it could speak. If it didn’t it could potentially be liable if it spoke and teenagers were somehow potentially harmed by the exposure to the ideas (this is a mild paraphrase of the statutory text, but only barely – the law really is that dumb).

In particular, it would require the investment in technology – and dubious technology that hoovers up significant amounts of personal information – to make sure Techdirt knows exactly how old its readers are so that it can make sure to somehow quarantine the “harmful” ideas. But that sort of verification inherently requires identifying every reader, which is something that Techdirt currently doesn’t do and doesn’t want to do. Occasionally it’s necessary to do some light identification, like to process payments, but ordinarily readers can read, and even participate in the comments, without having to identify themselves because allowing them to participate anonymously is most consistent with Techdirt’s expressive interests. The Copia Institute has even filed amicus briefs in courts before, defending the right to speak (and read) anonymously. But this law would put an end to anonymity when it comes to Techdirt’s readership because it would force it to verify everyone’s age (after all, it’s not just teenagers this law would affect; the grown-ups who still could be readers would have to still show that they are).

So in this brief we talked about how the Copia Institute’s speech is burdened, which is a sign that the bill is unconstitutional. We also discussed with the courts how the focus of the constitutional inquiry needs to be on those burdens, not on whatever non-expressive pretext legislatures wrapped their awful bills up in. The California bill was ostensibly a “privacy” bill and the Ohio one focused on minors entering contracts, but those descriptions were really just for show. Where the rubber hit the road legislatively all these bills were really about the government trying to control what expression can appear online.

Which is why we also told the Ninth Circuit to not just uphold the injunction but even make it stronger by pointing out how strict scrutiny applied. The district court found that the law was unconstitutional by the lesser intermediate scrutiny standard, which in a way is good, because if the law can’t even clear that lower hurdle it’s a sign that it’s really, really bad. But we have the concern that the reason it applied the lesser standard was because the law targeted sites that make money, and that cannot be a reason that the First Amendment could ever be found to be less protective of free expression than it is supposed to be.