Does the First Amendment block the ability of states to protect the online privacy of children? If a lower federal court decision from California is upheld, the astonishing answer is yes. That should trouble all of us.
To fully understand what’s going on here, we have to take a step back. Almost 50 years ago, the Supreme Court launched America on an extraordinary First Amendment experiment. Though no one pretends that James Madison’s First Amendment was meant to protect “commercial speech,” in 1976 the Supreme Court declared almost unanimously that the First Amendment would now defend corporations against the regulation of their words. The original case involved bans on advertising.
The law invalidated by the California court in September, the California Age-Appropriate Design Code Act, was model privacy-protection legislation for the internet age.
No one doubts that the equivalent regulation offline would be free of constitutional burden. California regulates the design of children’s toys, for example, to ensure that materials are safe and the structures are age-appropriate. No constitutional barriers block those choices. Of course, no one pretends that every regulation makes sense or achieves its objective.
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