THE DIGITAL AGE ASSURANCE ACT PASSES CONSTITUTIONAL MUSTER 

The Digital Age Assurance Act of 2024 (the “Digital Age Assurance Act”) rests on firm  constitutional grounds. It would require adult-content websites and related providers to utilize  existing technology to curb minors’ access to sexually explicit, adults-only online content.  Because age verification can occur automatically whenever a device attempts to gain access to an  adult-only site, and neither burdens users nor requires disclosure of identity or any other personal information, it avoids the constitutional concerns that have been raised against prior age verification schemes or other measures to curb minors’ access to online adult content. Users do not  have to reveal any personal information or take any affirmative action. Operating systems already  have the Application Programming Interfaces (“APIs”) and software capable of providing owners’  age-status whenever a website asks for age verification. The bill would not materially burden users,  content providers, or even operating system manufacturers.  

From a constitutional perspective, the Digital Age Assurance Act falls well within  established constitutional limits. No constitutionally protected speech is impeded, none is chilled.  The Digital Age Assurance Act even addresses the concerns raised in a pending Supreme Court  case (Paxton v. Free Speech Coalition) addressing much more intrusive age-verification laws in  19 states. If enacted, it would pass constitutional muster under existing Supreme Court holdings  (discussed below), such as United States v. Playboy Ent’t Grp., Inc. This is a completely safe, legal,  and appropriate way to prevent minors’ access to online adult content.  

BACKGROUND 

The Digital Age Assurance Act is quite simple. Device-based age assurance verifies a  user’s age through their device’s operating system and shares the user’s verified age or age range  with the application, service, or website the user is attempting to visit. Existing features on all  operating systems, such as Apple’s Wallet®, can provide the device-owner’s age without  disclosing any personal information. Privacy is fully protected: the only information relayed is  age-range, which is not constitutionally protected when adult-only content is the subject.  

Only three provisions of the Digital Age Assurance Act are constitutionally significant here: it requires (1) manufacturers to take commercially reasonable and technically feasible steps  to establish the age of the device’s owner or user; (2) manufacturers to provide websites,  applications, and online services with a signal indicating whether the individual is under age 13,  between 13 and 15, between 16 and 18, or 18 or older; and, (3) websites, applications, and online  services with statutorily defined “mature content” to recognize these age signals and to block  access if the individual is underaged. None of these requirements raises a constitutional red flag.  

ANALYSIS 

1. The Digital Age Assurance Act Meets All Constitutional Tests for Age Verification Mandates.

States have broad authority to enact laws restricting minors’ access to material that is  “obscene as to youths,” Erznoznik v. City of Jacksonville, 422 U.S. 205, 213 (1975), recognizing  that what is acceptable for adults may be inappropriate for children. See Ginsberg v. New York,  390 U.S. 629, 634-35 (1968) (holding that a state law requiring distributers to verify customers’  age when selling pornographic material did not violate First Amendment so long as a rational basis existed for finding that the material was harmful to children); Reno v. ACLU, 521 U.S. 844 875  (1997) (government’s valid “interest in protecting children from harmful materials …. does not  justify an unnecessarily broad suppression of speech addressed to adults”). Minors have no First  Amendment right of access to the “mature” content subject to the Digital Age Assurance Act.  Indeed, the Digital Age Assurance Act presumes that the content providers are required by various  federal and state laws to prohibit minors’ access to mature, adults-only content. The rights at issue  belong to device owners, manufacturers, websites, applications, online services, and content  providers, and none is infringed by the Digital Age Assurance Act.  

• No interference with adults’ access to mature content. Adults would maintain the exact same access to adult content that they presently have. Contrast with United States v. Playboy Ent’t Grp., Inc., 529 U.S. 803, 813 (2000) (finding that federal law restricting hours when sexually explicit television programming could be shown infringes adult viewers’ First Amendment rights of access to non-obscene communication). 
• No chilling effect because no burden on users. The principal objection to age verification statutes is the burden placed on adults when accessing mature-content sites or services: a requirement to provide government-issued or comparable identification, which, due to privacy concerns, chills their access and implicates First Amendment concerns. Age verification has no chilling effect. Owners and users are not affected because they are not required to act. The only information revealed is the user/owner’s age status. 
• No invasion of user privacy. Because age is the only information transmitted by the signal, the user/owner does not reveal any personal information. There is no risk of disclosure from hacks or other intrusions. 
• No undue burden on manufacturers. The technology to implement the Digital Age Assurance Act already exists. Requiring an operating system sold or used in a state to transmit the owner’s age-range based upon the device’s registration data is a minimal burden that neither interferes with interstate commerce (i.e., it does not violate the dormant commerce clause despite potentially broad extraterritorial effect outside of the enacting state), (see Nat’l Pork Producers Council v. Ross, 598 U.S. 356 (2023) (upholding California statute requiring all pork sold in state to meet animal-welfare requirements)), nor violates due process, (see Exxon Corp. v. Maryland, 437 U.S. 117,  125 (1978) (holding that state law regulating in-state economic conduct of out-of-state  companies does not violate substantive due process when it is rationally related to  legitimate state purpose)).  
• No burden or chilling effect on content providers. Because the Digital Age Assurance Act merely requires content providers to accept and utilize the age verification data that would be provided automatically when a device seeks access to a site with mature content, it does not burden or deter their First Amendment rights to free speech and expression. Requiring an adult site to recognize a signal indicating that the user is a minor is no different than requiring a vendor in the non-digital world to ascertain a customer’s adult status prior to selling adult-only products. 
• No less restrictive alternatives. Even if the Digital Age Assurance Act burdens adults’ right to access constitutionally protected content—and it does not—it still would pass any possible requirement1of “strict scrutiny” under the First Amendment, which requires the state to show that the statutory scheme is narrowly tailored such that no less restrictive alternative is available. See Playboy, 529 U.S. at 813. Here, no less intrusive means of age verification is even possible. All other means of restricting minors’ access (such as screening software or requiring actual proof of age status) have much greater effect and burden on adult owners/users. Indeed, by avoiding these more intrusive alternatives, the Digital Age Assurance Act enhances adults’ access. 

The Digital Age Assurance Act thus readily satisfies all applicable constitutional tests. 

2. The Digital Age Assurance Act Avoids the Constitutional Issues Raised in Paxton. The constitutionally benign character of the Digital Age Assurance Act is clear in contrast to the age verification statutes at issue in Paxton and lower-court decisions addressing their  potential unconstitutionality. Those laws require online adult-content users to identify themselves  by government-issued identification, facial recognition technology, or other commercially  reasonable means to establish their age before accessing the content. In Free Speech Coal., Inc. v.  Paxton, 95 F.4th 263 (5th Cir. 2024), a divided Fifth Circuit panel declined to enjoin preliminarily a Texas age verification statute, ruling that it was no more intrusive than the verification  requirement applied to direct physical access in Ginsberg and thus passed constitutional muster  under Ginsberg’s minimum-scrutiny test. Id. at 269-71. The U.S. Supreme Court has granted a writ  of certiorari to review the Fifth Circuit’s decision. None of the concerns raised by the Paxton dissent, the Supreme Court petitioners, or critics  of the Fifth Circuit decision applies to the requirements set forth in the Digital Age Assurance Act.  Indeed, device-based age verification is exactly the type of benign measure that First Amendment  advocates have been insisting that states pursue in lieu of more intrusive or burdensome means.  

First and foremost, no speech for adults is regulated by the Digital Age Assurance Act. By  contrast, the Texas age-verification statute in Paxton “necessarily encompasses non-obscene,  sexually expressive—and constitutionally protected—speech for adults.” Paxton, 95 F.3d at __  (Higginbotham, J., dissenting). Because no adult speech is regulated, the statute is assessed under  minimal scrutiny (rational basis), and, since Ginsberg, age verification to restrict minors’ access  to sexually explicit material is a universally accepted legislative objective.  

Second, as shown above, the Digital Age Assurance Act passes strict scrutiny. Its age  verification mechanism is the least restrictive alternative because it is narrowly tailored to protect  user anonymity without impeding adult users’ access. Indeed, age verification has long been cited  as the line separating permissible age verification in the physical world (adult purchasers are  visually age verified in most cases) from the means attempted in prior online access cases.2 Thus,  the principal issue under review by the Supreme Court—whether strict scrutiny or minimum  scrutiny applies to the Texas statute—is immaterial here.  

Third, because anonymity and privacy are completely protected, the Digital Age Assurance  Act poses no chilling effect on access to protected material. Contrast with Paxton, 95 F.3d at 303  (Higginbotham, J., dissenting) (“the age verification mandate will chill protected speech”).  

Finally, the lack of any tangible burden on manufacturers, websites, content providers, or  users stands in stark contrast with the Texas statute under review in Paxton. There, users must  authenticate their age before accessing the materials; providers must warn of risks from viewing  the material; and users must view the warnings before gaining access. The Digital Age Assurance  Act’s age verification process seamlessly avoids any such barriers between user and content  provider.  

In sum, the Digital Age Assurance Act deftly avoids all of the constitutional concerns  raised in Paxton.