Conservatives generally agree about the limits of policymaking man’s nature. Yet, few can shake the temptation to think rulers can do a little more than they can. Even the staunchest conservative will fall prey to the idea that the problems we care about the most might be solvable with the jagged blade of public policy.
Today, tech policy is where conservatives often discard their usual, prudent assumptions about economics, government and human action. Nowhere do conservatives become less conservative than children’s safety online. Worries that children find inappropriate or outright harmful content online have spawned myriad proposals to limit their activities in the digital world — proposals that often threaten to do violence to the constitutional rights of adults. A popular one is the age-verification mandate, which requires online platforms to determine prospective users’ ages and to bar those below a set age unless they obtain parental consent.
Several Republican-controlled state legislatures have enjoined such mandates. While they might appear — at first glance — commonsensical, age-verification advocates ignore glaring technological and constitutional difficulties. To better protect children (a basic and legitimate role of government), they disregard the second-order effects for user privacy, data security and free speech. Conservatives should know better: State action seldom leads easily to its desired outcomes. Haste and ham-fistedness in policymaking tend inexorably toward undesired outcomes and collateral damage.
Moreover, the First Amendment constrains government officials even as they pursue worthy aims, such as child protection. Accordingly, federal courts have blocked state age-verification mandates in nearly every instance. These laws have fallen in Arkansas, Ohio, Texas, Utah and elsewhere. For decades, the Supreme Court has looked skeptically upon them. Most recently, trade group NetChoice, the scourge of unconstitutional tech regulation, has challenged mandates in Tennessee and Florida. These statutes run aground on the same First Amendment barriers that have doomed similar laws nationwide. It is typical of its genre and should expect the same fate: injunction.
The First Amendment stands over overeager regulators, yelling, “Stop!” Age-verification mandates, which require users of every age to provide extensive sensitive personal data, run squarely into its prohibitions. Submitting this data exposes it to cybercriminals and compromises its owner’s anonymity. Further, as noted by the French national data-protection agency, no age-verification software exists “that satisfactorily meets (the) three requirements” of “sufficiently reliable verification, complete coverage of the population and respect for the protection of individual’s data and privacy and their security.” Courts have held these burdens far too heavy to withstand constitutional scrutiny.
Concerning anonymous speech, the Supreme Court has ruled explicitly that the First Amendment will not tolerate government efforts to unmask Americans’ identities as the price of speech. “Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent,” Justice John Paul Stevens wrote for the majority in McIntyre v. Ohio Elections Commission (1995). “Anonymity is a shield from the tyranny of the majority.” Concurring, Justice Clarence Thomas investigated the question as a historian, concluding that “the Framers understood the First Amendment to protect an author’s right to express his thoughts on political candidates or issues in an anonymous fashion.”
Mainly as online platforms house an ever-greater share of socializing, political discourse and artistic expression, conservatives ought to remain cautious about conditioning access to online speech on the provision of government documents. Show-your-papers regimes ought not to gatekeep the exercise of fundamental natural rights — much less rights, such as the right to speak freely, on which so many others, not to mention political freedom generally, rely.
Conservatives have long understood that policymaking requires properly identified ends and tailored, well-considered means. Politicians — even those with sterling intentions — can do great harm if their chosen reform methods are inapt or fail to account for the constraints imposed by technology, circumstance or human nature — not to mention those imposed by the Bill of Rights. This lesson holds true when regulating the digital and the physical world, and conservatives would do well to remember it.
