State leaders must drop idea of silencing online speech

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Lawmakers in St. Paul are debating this week whether to pass a sweeping new law that would silence online speech and put state officials between Minnesota parents and their children. It's a well-intentioned but flawed proposal that other states have already considered and rejected. Minnesota should do the same and remain a leader in protecting our First Amendment rights.

Across America, activists from a group based in England are pushing state legislatures, including Minnesota's, to adopt what they call Age-Appropriate Design Code Acts (AADCAs). These bills would force publishers to censor what they show to their readers or face costly, complicated and unconstitutional government mandates. And if publishers guess wrong about how to comply with the vague and confusing language in these bills, they face the risk of whopping fines.

These overbroad bills don't just target social media giants. They would also apply to the news websites based in and outside of Minnesota that we all rely upon to know what's happening in the world, from the Star Tribune to the New York Times to the Wall Street Journal.

The thrust of AADCAs is that any website "likely to be accessed by children" (that is, anyone under 18) must "complete a data protection impact assessment" before launching "any new online services, products or features to the public," which could be anything from a new podcast to a new book review section to a new comic in the funny pages. Businesses have to update every one of those assessments every other year, potentially forever, no matter the time and expense involved. The goal of these efforts is to chill websites from publishing what the bill calls "harmful or potentially harmful content" unless they try to keep out anyone under 18.

Supporters of these bills say that AADCAs foster "an emerging global standard for the protection of children's rights and privacy online." But as media law attorneys based in Minneapolis and Washington, D.C., our job is to protect freedom of speech and of the press as set out in the First Amendment — even when other countries might do things differently. That includes helping publishers such as daily newspapers report the news and keep their readers, young and old, informed about all the issues of the day.

AADCAs like the one proposed in Minnesota might sound good in the abstract — we all want to protect children from real harm — but the devil is in the details, and AADCAs have the details all wrong. They keep young readers in the dark by letting the state decide what counts as "potentially harmful content" and punishing publishers who, according to the state, don't do enough to keep that "potentially harmful content" locked away from the general public. At the same time, they impose such expensive burdens on publications like this one that it would be even harder for them to bring important news to full-grown adults.

The First Amendment is designed to stop elected representatives from deciding what is too "harmful" for the public to see. In Minnesota, a 17-year-old can drive a car, own a firearm and get an abortion. But some officials may think it's "harmful" for 17-year-olds to see videos showing gun violence, whether of a school shooting that inspires a debate over gun safety, or of a police shooting that galvanizes the nation into confronting racial injustice. Other officials might say it's "harmful" for 17-year-olds to read about contraception and reproductive rights. And still others might think it's "harmful" for a high school football player to read about the rare but frightening injuries sustained by local youth Ethan Glynn and Buffalo pro Damar Hamlin.

AADCAs would give those officials the power to punish the speech they dislike instead of having to counter it with their own speech in the marketplace of ideas.

In America, we don't let the government decide what we and our children can read and discuss in the privacy of our own homes. So you won't be surprised to learn that Maryland considered and rejected a proposed AADCA earlier this year, or that California is tied up in federal court facing a lawsuit claiming its new AADCA is unconstitutional. Based on our experiences challenging other well-meaning but overreaching state laws, especially under the First Amendment, we expect California to lose that fight (and for its taxpayers to end up paying the other side's legal bills).

If Minnesota lawmakers are determined to pass an AADCA and try their luck in court, they should at the very least exempt newspapers, magazines and similar publishers from the law's requirements, as the state's Newspaper Association has urged. But the better course would be to heed the Supreme Court's warning that "even where the protection of children is the object, the constitutional limits on governmental action apply" and reject this unconstitutional bill entirely.

Max Mishkin and Leita Walker are First Amendment attorneys in the D.C. and Minneapolis offices of Ballard Spahr LLP, which serves as counsel to a wide range of news media organizations on First Amendment-related matters, including the Star Tribune.