One of the reasons we opposed the TikTok "ban" is that the First Amendment is supposed to protect us from government using its power to manipulate speech. But as predicted, the TikTok "ban" has only resulted in turning over the platform to the allies of a president who seems to have no respect for the First Amendment.

TikTok was never proven to be a current national security problem, so it's hard to say the sale will alleviate those unproven concerns. And it remains to be seen if the deal places any limits on the new ownership sharing user data with foreign governments or anyone else—the security concern that purportedly justified the forced sale. As for the algorithm, if the concern had been that TikTok could be a conduit for Chinese government propaganda—a concern the Supreme Court declined to even consider—people can now be concerned that TikTok could be a conduit for U.S. government propaganda. An administration official reportedly has said the new TikTok algorithm will be "retrained" with U.S. data to make sure the system is "behaving properly."

The Electronic Frontier Foundation and ARTICLE 19 strongly support the Wikimedia Foundation’s legal challenge to the categorization regulations of the United Kingdom’s Online Safety Act.

The Foundation – the non-profit that operates Wikipedia and other Wikimedia projects – announced its legal challenge earlier this year, arguing that the regulations endanger Wikipedia and the global community of volunteer contributors who create the information on the site. The High Court of Justice in London will hear the challenge on July 22 and 23.

EFF and ARTICLE 19 agree with the Foundation’s argument that, if enforced, the Category 1 duties - the OSA’s most stringent obligations – would undermine the privacy and safety of Wikipedia’s volunteer contributors, expose the site to manipulation and divert essential resources from protecting people and improving the site. For example, because the law requires Category 1 services to allow users to block all unverified users from editing any content they post, the law effectively requires the Foundation to verify the identity of many Wikipedia contributors. However, that compelled verification undermines the privacy that keeps the site’s volunteers safe.

Wikipedia is the world’s most trusted and widely used encyclopedia, with users across the word accessing its wealth of information and participating in free information exchange through the site. The OSA must not be allowed to diminish it and jeopardize the volunteers on which it depends.

Beyond the issues raised in Wikimedia’s lawsuit, EFF and ARTICLE 19 emphasize that the Online Safety Act poses a serious threat to freedom of expression and privacy online, both in the U.K. and globally. Several key provisions of the law become operational July 25, and some companies already are rolling out age-verification mechanisms which undermine free expression and privacy rights of both adults and minors.

The Supreme Court’s recent decision in Free Speech Coalition v. Paxton did not end the legal debate over age-verification mandates for websites. Instead, it’s a limited decision: the court’s legal reasoning only applies to age restrictions on sexual materials that minors do not have a legal right to access. Although the ruling reverses decades of First Amendment protections for adults to access lawful speech online, the decision does not allow states or the federal government to impose broader age-verification mandates on social media, general audience websites, or app stores.

At EFF, we continue to fight age-verification mandates in the many other contexts in which we see them throughout the country and the world. These “age gates” remain a threat to the free speech and privacy rights of both adults and minors.

Importantly, the Supreme Court’s decision does not approve of age gates when they are imposed on speech that is legal for minors and adults.

The court’s legal reasoning in Free Speech Coalition v. Paxton depends in all relevant parts on the Texas law only blocking minors’ access to speech to which they had no First Amendment right to access in the first place—what has been known since 1968 as “harmful to minors” sexual material. Although laws that limit access to certain subject matters are typically required to survive “strict scrutiny,” the Texas law was subject instead to the less demanding “intermediate scrutiny” only because the law was denying minors access to this speech that was unprotected for them. The Court acknowledged that having to prove age would create an obstacle for adults to access speech that is protected for them. But this obstacle was merely “incidental” to the lawful restriction on minors’ access. And “incidental” restrictions on protected speech need only survive intermediate scrutiny.

To be clear, we do not agree with this result, and vigorously fought against it. The Court wrongly downplayed the very real and significant burdens that age verification places on adults. And we disagree with numerous other doctrinal aspects of the Court’s decision. The court had previously recognized that age-verification schemes significantly burden adult’s First Amendment rights and had protected adults’ constitutional rights. So Paxton is a significant loss of internet users’ free speech rights and a marked retreat from the court’s protections for online speech.

The decision does not allow states or the federal government to impose broader age-verification mandates

But the decision is limited to the specific context in which the law seeks to restrict access to sexual materials. The Texas law avoided strict scrutiny only because it directly targeted speech that is unprotected as to minors. You can see this throughout the opinion:

• The foundation of the Court’s decision was the history, tradition, and precedent that allows states to “prevent children from accessing speech that is obscene to children, rather than a more generalized concern for child welfare.
• The Court’s entire ruling rested on its finding that “no person – adult or child –has a First Amendment right to access speech that is obscene to minors without first submitting proof of age.”
• The Court explained that “because the First Amendment permits States to prohibit minors from accessing speech that is obscene to them, it likewise permits States to employ the ordinary and appropriate means of enforcing such a prohibition.” The permissibility of the age verification requirement was thus dependent on the unprotected nature of the speech.
• The only reason the law could be justified without reference to protected speech, a requirement for a content-neutral law subject to only intermediate scrutiny, is that it did not “regulate the content of protected speech” either “‘on its face’ or in its justification.” As the Court explained, “where the speech in question is unprotected, States may impose “restrictions” based on “content” without triggering strict scrutiny.”
• Intermediate scrutiny was applied only because “[a]ny burden experienced by adults is therefore only incidental to the statute's regulation of activity that is not protected by the First Amendment.”
• But strict scrutiny remains “the standard for reviewing the direct targeting of fully protected speech.”

Only one sentence in Free Speech Coalition v. Paxton addressing the restriction of First Amendment rights is not cabined by the language of unprotected harmful to minors speech. The Court wrote: “And, the statute does not ban adults from accessing this material; it simply requires them to verify their age before accessing it on a covered website.” But that sentence was entirely surrounded by and necessarily referred to the limited situation of a law burdening only access to harmful to minors sexual speech.

We and the others fighting online age restrictions still have our work cut out for us. The momentum to widely adopt and normalize online age restrictions is strong. But Free Speech Coalition v. Paxton did not approve of age gates when they are imposed on speech that adults and minors have a legal right to access. And EFF will continue to fight for all internet users’ rights to speak and receive information online.