FIRE urges Arizona governor to veto unconstitutional age verification legislation

UPDATED (April 10, 2024): Governor Hobbs vetoed House Bill 2586, citing the fact that the bill violates settled case law and noting that solutions to online safety for children should “work within the bounds of the First Amendment, which this bill does not.” 

FIRE applauds Gov. Hobbs' thoughtful approach and thanks her for protecting the free speech rights of Arizonans.

This week, FIRE sent a letter to Arizona Gov. Katie Hobbs, urging her to veto House Bill 2586, which contains an online age verification requirement that would violate the First Amendment rights of Arizonans. 

HB 2586 requires websites to implement an “age verification method” for anyone attempting to access websites that distribute certain adult material, so long as that material comprises more than one-third of the website’s content.  

When the government attempts to regulate speech on the basis of content, it faces a high burden to show the regulation does not violate the First Amendment. As we make clear in our letter: 

Content-based restrictions on speech like HB 2586 are subject to strict scrutiny, meaning they will not survive judicial review unless the government can prove the restriction is narrowly tailored to serve a compelling interest and is the least restrictive means of serving that interest.

On this basis, the Supreme Court has invalidated similar laws due largely to the burden verification imposes on all users, not just minors. Even where the government has an interest in restricting minors’ access to material that adults have a right to see, if the restriction comes in the form of age verification of all users, it puts too large a burden on the rights of adults.

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One important reason for this is that it ultimately involves sharing personally identifying information as a condition of access to constitutionally protected speech. Imposing this condition violates First Amendment protections for anonymous speech. 

Anonymous speech has been vital to our political, intellectual, and artistic progress throughout American history. Some may try to characterize the anonymous speech implicated by HB 2586 as distinguishable from other protected speech because it involves adult content. But in our free society, it is the right of the people, not the government, to decide which speech is socially valuable. Our history is riddled with attempts by elected officials to censor speech they sincerely believed worthless or harmful. If those officials had the authority to decide on the people’s behalf which speech is useful to them — and restrict the rest — they would have suppressed many important ideas, writings, and works of art.

The full text of the letter is here.