States Keep Passing Unconstitutional Age-Verification Laws for Porn Sites

“”There will always be websites willing to provide porn without carding viewers. These platforms are also less likely to take other steps to stay within regulatory or creator-protective limits,” Reason’s Elizabeth Nolan Brown wrote in March. “By driving viewers away from platforms like Pornhub—sites that engage in at least some content moderation, are relatively receptive and responsive to authorities, and are willing to forge mutually beneficial partnerships with porn creators—age verification laws could actually increase viewership of exploitative or otherwise undesirable content.””

Why the Consumer Financial Protection Bureau’s Funding Structure Is Unconstitutional

“A three-judge panel on the 5th Circuit Federal Court of Appeals ruled this week that the CFPB’s structure is unconstitutional because Congress has no control over the agency’s budget, which is funded entirely by the Federal Reserve. Under the terms of Dodd-Frank, the CFPB is entitled to receive a budget totaling up to 12 percent of the Federal Reserve’s annual operating expenses, and the Federal Reserve is not allowed to refuse the CFPB’s requests for funding.

“Congress’s decision to abdicate its appropriations power under the Constitution, i.e., to cede its power of the purse to the Bureau, violates the Constitution’s structural separation of powers,” Judge Cory Wilson wrote in this week’s ruling.”

“”Congress did not merely cede direct control over the Bureau’s budget by insulating it from annual or other time-limited appropriations. It also ceded indirect control by providing that the Bureau’s self-determined funding be drawn from a source that is itself outside the appropriations process—a double insulation from Congress’s purse strings that is ‘unprecedented’ across the government,” Wilson wrote in the court’s ruling. “Even among self-funded agencies, the Bureau is unique. The Bureau’s perpetual self-directed, double-insulated funding structure goes a significant step further than that enjoyed by the other agencies on offer.””

Is the Nation’s Harshest Rent Control Law Unconstitutional, or Just Counterproductive?

“The preliminary results of St. Paul, Minnesota’s, strictest-in-the-nation rent control law have not been good. Developers have fled, while applications for new building permits and property values have both collapsed. Now, a pair of landlords are suing the city, claiming the law is unconstitutional.”

“The ordinance, written by local activists and passed by voters in November 2021, capped rent increases in the city at 3 percent per year, with none of the typical allowances or exemptions for inflation, vacant units, and new construction.
The policy is far stricter than basically every other rent control law in the country. Oregon’s 2019 state rent control law, for instance, allows for property owners to raise rents by 7 percent plus inflation and exempts buildings less than 15 years old from these price caps.

While the St. Paul ordinance did allow landlords to obtain exemptions to that 3 percent cap if it threatens their ability to earn a “reasonable return” on their investment, what would count as a reasonable return and how to secure an exemption were left up to the city to hash out. St. Paul came out with proposed rules for implementing the ordinance, including the exemption process, in early April 2022. These were finalized later that month, and everything went into effect on May 1. The final rules allow landlords to “self-certify” exemptions if they’re trying to raise the rent by no more than 8 percent, which involves filling out a short form and submitting it to the city.

Landlords are also permitted to raise the rent up to 15 percent. Doing so requires vetting from city staff and the completion of a 22-page worksheet that asks the applicant to provide exhaustive detail about changes in their expenses that might justify a rent increase. Because all exemptions can be appealed and subjected to a city audit, even landlords who can self-certify increases of up to 8 percent are encouraged (but not required) to fill out that 22-page worksheet as well.

It’s a daunting prospect for many of St. Paul’s smaller landlords.”

Republicans Defend Texas Social Media Law—and Compelled Speech

“A blatantly unconstitutional Texas social media law can start being enforced unless the Supreme Court steps in. The law was blocked by a U.S. district court last year after internet advocacy and trade groups challenged it. But a new order from the U.S. Court of Appeals for the 5th Circuit means Texas can begin enforcement of its social media law—and wreak havoc on the internet as we know it in the process.

NetChoice and the Computer and Communications Industry Association (CCIA)—the groups that filed the lawsuit against the Texas social media law—have now submitted an emergency petition to the Supreme Court asking it to intervene. Meanwhile, Texas and a slew of other states with Republican leaders are advocating for the law, which would treat large social media platforms like common carriers (such as railroads and telephone companies) that have a legal obligation to serve everyone.

How we got here: The Texas social media law (H.B. 20) bans large platforms from engaging in many forms of content moderation—including rejecting unwanted content outright, limiting its reach, or attaching disclaimers to it—based on the viewpoint said content conveys. It’s similar to legislation passed (and blocked, for now) in Florida.

Borrowing a page from George Orwell, supporters like Texas Gov. Greg Abbott say the law is designed to protect free speech. But in addition to protecting people and private entities from censorship, the First Amendment also protects against them being compelled by the government to speak or host certain messages—which is exactly what H.B. 20 does.

Accordingly, Judge Robert Pitman of the U.S. District Court for the Western District of Texas held last December that H.B. 20 violated the First Amendment and issued a preliminary injunction against enforcing it.

But Texas appealed, and last week the U.S. Court of Appeals for the 5th Circuit issued a stay on the lower court’s decision—meaning Texas can start immediately enforcing the social media law.

The 5th Circuit did not offer an opinion explaining its reasoning, so it’s hard to say what’s going on there. In any event, NetChoice and the CCIA are now asking the U.S. Supreme Court to step in.”

An Unconstitutional Arrest for Refusing To Show ID to the Cops

“In an important win for Fourth Amendment advocates, a Virginia man’s arrest for refusing to show identification to the police has been ruled unconstitutional by a federal appellate court.”

” “To be sure, officers may always request someone’s identification during a voluntary encounter,” the court said. “But they may not compel it by threat of criminal sanction. Allowing a county to criminalize a person’s silence outside the confines of a valid seizure would press our conception of voluntary encounters beyond its logical limits. We therefore decline to do so here.”

If Wingate had been lawfully detained by the police, the 4th Circuit said, then the officer could require him to show ID. But that was not what happened here.”

Supreme Court Rules Non-Unanimous Jury Verdicts in Criminal Cases Unconstitutional

“The Supreme Court ruled today that the Sixth Amendment right to a jury trial requires criminal convictions to be decided unanimously in most cases in state courts, overturning a previous decision from the 1970s.

Prior to Ramos v. Louisiana making its way up to the Supreme Court, 48 states and federal courts already required a unanimous conviction for most criminal charges. Louisiana and Oregon were both outliers, permitting 10-2 verdicts.”

“Supporting today’s ruling (in various degrees and for varying justifications) were justices Neil Gorsuch (who wrote the decision), Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, Brett Kavanaugh, and Clarence Thomas. Opposing were Chief Justice John Roberts, Samuel Alito (who wrote the dissent), and Elena Kagan.”