As we discussed in our previous article, the issue in the current stage of the lawsuit challenging a Texas law requiring ID to visit some websites is what standard — “strict scrutiny” or “rational basis” review —  courts should use to evaluate the Constitutionality of government-imposed restrictions on the exercise of First Amendment rights.

But legal briefs in the case also address the adverse and discriminatory impact of ID requirements on people without ID, and spotlight some important recent research on how many people in the US don’t have government-issued ID or don’t have ID that would satisfy ID-verification procedures and criteria, including those that include address verification.

A friend-of-the-court brief submitted to the U.S. Supreme Court by the Electronic Frontier Foundation and the Woodhull Freedom Foundation cites an analysis by the Center for Democracy and Civic Engagement at the University of Maryland of the results of a survey of a scientifically-selected national panel conducted in September and October of 2023.

Respondents were asked whether or not they have a driver’s license, whether their ID (if any) has their current name and address, and whether their ID, birth or naturalization certificate, or other evidence of identity and citizenship is kept in a quickly accessible place (rather than a safe deposit box or other off-site location).

The responses to the survey show just how many people can be excluded by ID demands:

Nearly 21 million voting-age U.S. citizens do not have a current (non-expired) driver’s license. Just under 9%, or 20.76 million people, who are U.S. citizens aged 18 or older do not have a non-expired driver’s license. Another 12% (28.6 million) have a non-expired license, but it does not have both their current address and current name….

If driver’s license records are incorporated into address-validation algorithms, someone who gives their current address may be more likely to be turned away by ID-based gatekeepers than an identity thief who can has obtained, and can regurgitate, the out-of-date or incorrect address associated with that ID in government records.

The survey also asked about other forms of government-issued ID including:

• US passport or US passport card
• US Naturalization Certificate
• US Certificate of Citizenship
• Military ID
• Veterans ID
• Student ID
• Tribal ID
• Hunting License
• Gun/firearm permit

Millions of US adults have none of these government-issued credentials:

Just over 1% of adult U.S. citizens do not have any form of government-issued photo identification, which amounts to nearly 2.6 million people.

Unsurprisingly, Black, Hispanic and young adult Americans are less likely to have ID, or to have current addresses on file with government agencies, and are therefore more likely to be discriminated against by ID and address verification requirements:

Black Americans and Hispanic Americans are disproportionately less likely to have a current driver’s license. Over a quarter of Black adult citizens and Hispanic adult citizens do not have a driver’s license with their current name and/or address (28% and 27% respectively)… Eighteen percent of Black adult citizens, 15% of Hispanic adult citizens, and 13% of Asian/Pacific Islander adult citizens do not have a license at all, compared to just 5% of White adult citizens.

Young Americans are least likely to have a driver’s license with their current name and/or address. Younger Americans overall are far less likely to have a driver’s license with their current name and/or address, with 41% of those between the ages of 18-24 and 38% between the ages of 25-29 indicating this…..

Almost half of Black Americans ages 18-29 do not have a driver’s license with their current name and/or address (47%), and 30% do not have a license at all.

The questionnaire and the initial analysis of the responses appear to have been designed primarily to assess the impact of requirement to have and show ID to vote, but they have obvious implications for demands for ID in other contexts, including ID to fly or to travel by other modes of common carrier.

There’s been a lot of attention paid to what percentage of current driver’s licenses are compliant with the REAL-ID Act,  for example, but much less attention paid to how many people don’t have any driver’s license or other government-issued ID credentials, or which IDs will satisfy current or proposed ID-verification criteria and procedures.

Our takeaway is that ID requirements are, and will remain, inherently unreliable, discriminatory, and illegitimate. Not everyone has ID, and not everyone’s ID will satisfy verification schemes that rely on inevitably inaccurate databases.

The U.S. Supreme Court has been asked to review a  decision by the 5th Circuit Court of Appeals upholding  a Texas law that requires all visitors to some websites to provide the site operator with evidence of their identity and age.

The Texas law applies to all visitors to any website “more than one-third of which is sexual material harmful to minors.” It doesn’t matter if you are an adult, none of the material on the site is obscene or illegal (“harmful to minors” doesn’t mean obscene or illegal for adults) , or you want to access portions of the site — perhaps the majority — that aren’t considered harmful to minors. You still have to identify yourself to the site operator by “digital identification,” “government-issued identification,” or “a commercially reasonable method that relies on public or private transactional data.”

The issue raised in the petition for certiorari (request for review by the Supreme Court) is the “standard of review” applicable to this law. That may seem like a technical issue, but it is likely to determine the outcome of this and many other cases.

In a long line of precedents from the Supreme Court, restrictions on the exercise of rights protected by the First Amendment have been subjected to what is called “strict scrutiny”. That means that, for such a law, regulation, or government practice to be upheld, the government must show that it is “narrowly tailored” to a legitimate government purpose, and that no less restrictive available alternative law or policy could fulfill that purpose.

In the case of the Texas ID-to-visit-websites law, two of the three judges of the 5th Circuit panel adopted a lower standard by finding that the state need only show that there is some “rational relationship” between the law and any legitimate government purpose, regardless of its collateral impact on adults, non-obscene content, or First Amendment rights. That creates a conflict with Supreme Court precedent and decisions in other Federal circuits.

Any precedent in this case could be applied to demands to provide ID as a prerequisite to the exercise of other rights protected by the First Amendment, not just freedom of speech and of the press.

To the extent that the freedom to travel is recognized — as we think it should be — as an aspect of the freedom to assemble, this precedent could be applied directly to ID requirements for travel, including travel by airline or other common carrier.

We hope the Supreme Court reviews and reverses this decision by the 5th Circuit.