The examples that we used are all related to laws that have either passed in various states, or are in the legislative pipeline and considered very likely to pass. The example of "a Muslim user talking about experiencing discrimination at work" is taken from Florida's HB 7 (2022), in which Florida determines that any reference to structural inequality or discrimination based on "race, color, national origin, sex, disability, religion, or marital status" is inappropriate for people under 18. If the (unelected and unaccountable) panel that the law requires California to set up to determine what's "harmful to minors" decided that they agree, under AB 2273, they could require sites such as us to age-lock that content to only people who had verified their age as over 18. Multiple studies have repeatedly shown that every effort to categorize content as "harmful to minors" ever studied has disproportionately affected content by and about marginalized people: believing this effort will be the first ever to avoid doing that is unrealistic.
Obscenity has a very specific definition under US law: it isn't "anything that people feel is inappropriate for children". The definition of obscenity was first articulated in the Supreme Court case Miller v. California, 413 U.S. 15 (1973), and has been codified into Federal law in several subsequent laws; for material to be obscene, a court must determine:
1. whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; and;
2. whether the work depicts or describes, in an offensive way, sexual conduct or excretory functions; and;
3. whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
If content doesn't meet all three definitions, it isn't obscene, and placing legal restrictions on it violates the First Amendment. A very small part of the content California is seeking to age-gate as "harmful to minors" may fall into the definitions of obscenity, but the law as passed covers an incredible amount of material that does have the "literary, artistic, political, or scientific value" that the decision in Miller v California specifically protects. This isn't a law about restricting obscene material; it covers an incredible amount of protected speech that falls well outside those definitions.
There's a tremendous amount of First Amendment jurisprudence establishing that efforts to regulate "indecent" content that does not meet the legal definition of "obscenity" violate the First Amendment, and that it's also a violation of the First Amendment to force adults to identify, de-anonymize, and verify their ages online in order to access protected speech. I really do urge you to look up the history I referenced in the post at the very least: the Communications Decency Act of 1996 covered substantially similar content, make substantially similar arguments for restricting it, and proposed substantially similar age-gating for adults to access it, and the Supreme Court decision in Reno v. American Civil Liberties Union makes it very clear why it was unconstitutional. There's a number of cases that have followed on from it, many of which are referenced in the table of authorities in the motion for preliminary injunction that our third-party declaration was in support of, and I really do urge you to read up on them a bit if you aren't familiar with the history of US First Amendment jurisprudence as applied to the internet -- there are a lot of reasons why this law is unconstitutional, but Reno v ACLU in particular is extremely relevant.
Re: voice of dissent
Obscenity has a very specific definition under US law: it isn't "anything that people feel is inappropriate for children". The definition of obscenity was first articulated in the Supreme Court case Miller v. California, 413 U.S. 15 (1973), and has been codified into Federal law in several subsequent laws; for material to be obscene, a court must determine:
If content doesn't meet all three definitions, it isn't obscene, and placing legal restrictions on it violates the First Amendment. A very small part of the content California is seeking to age-gate as "harmful to minors" may fall into the definitions of obscenity, but the law as passed covers an incredible amount of material that does have the "literary, artistic, political, or scientific value" that the decision in Miller v California specifically protects. This isn't a law about restricting obscene material; it covers an incredible amount of protected speech that falls well outside those definitions.
There's a tremendous amount of First Amendment jurisprudence establishing that efforts to regulate "indecent" content that does not meet the legal definition of "obscenity" violate the First Amendment, and that it's also a violation of the First Amendment to force adults to identify, de-anonymize, and verify their ages online in order to access protected speech. I really do urge you to look up the history I referenced in the post at the very least: the Communications Decency Act of 1996 covered substantially similar content, make substantially similar arguments for restricting it, and proposed substantially similar age-gating for adults to access it, and the Supreme Court decision in Reno v. American Civil Liberties Union makes it very clear why it was unconstitutional. There's a number of cases that have followed on from it, many of which are referenced in the table of authorities in the motion for preliminary injunction that our third-party declaration was in support of, and I really do urge you to read up on them a bit if you aren't familiar with the history of US First Amendment jurisprudence as applied to the internet -- there are a lot of reasons why this law is unconstitutional, but Reno v ACLU in particular is extremely relevant.