WASHINGTON — Leading conservative think tank the American Enterprise Institute has published an opinion piece penned by one of its senior fellows criticizing the 5th Circuit endorsement of Texas’ controversial age verification law.
The piece, written by Daniel Lyons and published Friday as part of the institute’s AEIdeas series, concludes that the 5th Circuit judges’ ideological hostility toward adult content has led them to “undermine basic rule of law principles in pursuit of their preferred policy objectives.”
“Because online activity is inherently communicative, the regulation of online expression is often complicated by the First Amendment,” Lyons writes. “But this is apparently not a problem that troubles the Fifth Circuit. In Free Speech Coalition v. Paxton, the circuit court upheld a Texas law requiring pornographic websites to verify the age of their visitors — in the process dismissing two Supreme Court decisions finding such laws unconstitutional and consciously ignoring the difference between the offline world and cyberspace.”
Lyons points out that to most internet law scholars, it is obvious why previous age verification statutes have been enjoined by courts.
“Over two decades ago, at the dawn of the Internet age, a pair of Supreme Court cases, Reno v. ACLU and Ashcroft v. ACLU, struck down similar efforts by Congress to mandate age verification by pornographic websites,” he explains. “Although minors can generally be prohibited from accessing sexual material, adults have a First Amendment right to consume non-obscene pornography. Because age verification threatened to chill speech for adults, the Court applied strict scrutiny, and struck down both statutes because it found age verification was not the least restrictive means of limiting minors’ access without harming adults’ speech rights.”
To Lyons, the 5th Circuit’s conclusion that the U.S. Supreme Court struck down two federal statutes because the parties assumed the wrong standard of review, and that 25 years of internet law precedent based on those decisions failed to catch the error, is “laughable.”
Appellate judges, the opinion piece concludes, “cannot solve social problems by ignoring Supreme Court precedent with which they disagree. The Ninth Circuit gained a poor reputation for doing so regarding death penalty cases toward the end of the twentieth century, and the Fifth Circuit sadly seems to be following in its footsteps today.
“Once upon a time, conservatives decried such shenanigans as judicial activism.”
