The most recent episode of Sutherland Institute’s Defending Ideas podcast addressed a live issue: can governments require app stores to verify that users are adults or have parental consent allowing them to enter into contracts to purchase or download an app?
Utah has enacted a law to provide this type of protection, as has Texas. Other states and the national government are considering similar laws. An alternative approach that would encourage rather than mandate age verification and would preempt state laws, the Parents Over Platforms Act, has recently been proposed in Congress. Perhaps most importantly, the U.S. Court of Appeals for the Fifth Circuit is considering an appeal from a trial court decision to prevent Texas’ law from going into effect.
The podcast episode is timely, but also helpful as an example of a respectful discussion about an issue where participants have strong positions.
A foundational issue addressed, but not necessarily resolved, by the discussion was whether a law like the one in Texas abridges the freedom of speech.
A classic example of a government action that limits free speech is a law that punishes a speaker for expressing a viewpoint disfavored by the state. The U.S. Supreme Court recently decided a case on this basis, invalidating a Colorado law that punished therapists for taking a specific position while allowing therapists to take the opposite position.
The Texas law is not like that. Its supporters argue that it is not a limitation on speech at all. The analogy they propose is to regular commercial regulations, like age verification for tattoos, voting, etc. Such laws focus on conduct rather than speech.
By contrast, the district court in the Texas case proposed a different analogy. The app store law, the court concluded, “restricts access to a vast universe of speech by requiring Texans to prove their age before downloading a mobile app or accessing paid content within those apps and requires minors to obtain parental consent.” This, the court said, “is akin to a law that would require every bookstore to verify the age of every customer at the door and, for minors, require parental consent before the child or teen could enter and again when they try to purchase a book.”
This analogy has problems. Bookstores do not typically require binding commitments from minor customers to use the store, do not impose automatic subscription or purchase renewals, and do not track customers after they leave the store.
Ultimately, it is hard to credit the idea that the First Amendment creates a right for minors to enter into contracts with third parties unsupervised by parents.
The Fifth Circuit will need to offer clarification as to what the law demands. Many parents are anxious to have help in navigating technology and are understandably concerned about the insistent way in which their children are influenced by online pitches. They can count on their influence being respected when it comes to their children entering into other commercial contracts, but don’t yet have the same assurance with important online contracts. They deserve more clarity about what they can expect.
