IFS Files Amicus Brief in Support of Texas App Store Safety Law

This week, the Institute for Family Studies (IFS) submitted an amicus brief in support of the state of Texas’s “App Store Accountability Act (ASAA)” (S.B. 2420) in Students Engaged in Advancing Texas, et al., Plaintiffs vs. Ken Paxton. 

Earlier this year, the Texas law was stopped from going into effect after a federal court ruled that S.B. 2420 was unconstitutional. According to the District Court, the law represents a content-based restriction that unduly burdens speech and ultimately fails strict scrutiny—the test by which courts determine whether a content-based restriction represents the most effective and least burdensome means for a purpose that is a compelling government interest. After the ruling, the Texas Attorney General filed an appeal to the Fifth Circuit, which accepted the state’s appeal.

Many organizations support the App Store Accountability Act (ASAA), but the Institute for Family Studies is proud to be one of the first movers on the conceptual framework that gave it life. We worked with our close ally, Melissa McKay, a Utah mom and president of the Digital Childhood Institute who first conceived of the approach, as well as Joel Thayer, President of the Digital Progress Institute, whose expertise helped develop its key legal structures. With their guidance, IFS, alongside the Ethics and Public Policy Center, released the very first policy paper to imagine what eventually became ASAA. 

For that reason, IFS filed an amicus brief defending the law’s constitutionality and the state’s right to support parents in caring for their children, especially in a context where digital technology has eroded the ability of parents to ensure their children's welfare. 

In particular, our brief makes three key arguments:

1. As recognized by the Supreme Court in Free Speech Coalition vs. Paxton and supported by the Institute for Family Studies’ research, digital technology is ubiquitous and has evolved in ways that undermine rather than aid parents in carrying out their responsibilities to ensure the welfare of their children. Texas is within its right in enacting and enforcing S.B. 2420 because it strengthens parents’ ability to fulfill their rightful duties. 
    
2. Age verification technologies have also become more technically feasible, reliable, affordable, and privacy-protecting than ever, so much so that they were recognized by the Supreme Court as “plainly legitimate.” To the degree that age verification may pose a burden on adult speech, it is minimally burdensome as it relies on existing technologies and data already collected by app stores.
    
3. While the District Court has mischaracterized S.B. 2420 as a content-based restriction, even under the First Amendment, courts have recognized significant differences between adult speech and minors’ speech. Neither the Founders nor the history of the courts have recognized the First Amendment as protecting corporations’ speech to minors without parents present. Indeed, they have recognized the state as having the right to aid parents in carrying out their duties Thus, insofar as it prohibits app developers from being able to engage with minors, Texas’s law does not violate the protections afforded by the First Amendment, as historically recognized by the Founders or the courts.

We applaud Texas for enacting S.B. 2420 and leading the country in protecting children online. We hope that the Fifth Circuit will vindicate the law’s clear constitutionality and the state’s role in supporting parents and protecting children.

Go here to download the IFS amicus brief.

Jared Hayden is a Policy Analyst for the IFS Family First Tech Initiative.

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