California has a habit of importing some of the worst tech-regulation ideas from overseas. After lawmakers enacted a censorial statute cribbed from the U.K. in 2022 — and watched it run headlong into an injunction — the Golden State now appears eager to borrow from Australia, which in December barred children from major social media platforms.
Earlier this month, California lawmakers introduced a bill to impose “a minimum age requirement to open or maintain a social media account.” Governor Gavin Newsom (D), who usually avoids weighing in on pending bills, publicly endorsed the idea.
Will America keep light-touch rules that protect consumers without strangling innovation — or import Europe’s heavy-handed, fear-driven approach?
However well intentioned, the Australian model collapses on prudential grounds. In the United States, it also invites a swift constitutional challenge — and likely a swift defeat in court.
Most proposals that force platforms to distinguish between adults and minors require age verification. That means users must hand over sensitive personal information — usually government ID documents or biometric data — as the price of entry to the platforms where everyday digital life happens. Once companies collect, process, and store that data, it becomes a tempting target. Hackers do not need ideology, only opportunity.
The roster of victims reads like Don Giovanni’s catalogue. The list includes corporations such as Target, Equifax, Marriott, Capital One, MGM Resorts, and T-Mobile. Platforms from Facebook to X.com to the “Tea” app were also hit. So were third-party verification services. Even in France, where regulators tried to build a privacy-protective system, a third-party age verifier exposed sensitive user data. In the digital age, breaches and leaks are simply a fact of life.
Legislation promoted as “child protection” thus runs into a basic contradiction: it can expose children to new forms of harm. As the R Street Institute and Experian have reported, 25% of minors will become victims of identity fraud or theft before they turn 18. Age-verification mandates would widen the attack surface and increase the odds that minors’ information gets stolen, misused, or sold — and that families spend years cleaning up the wreckage.
Some advocates now treat constitutional objections to “child-safety” bills as impolite. Courts don’t share that squeamishness. In recent years, judges have enjoined multiple constitutionally defective state laws, leaving behind little more than wasted taxpayer dollars and public frustration, while state attorneys general mount doomed defenses.
Newsom’s favored approach also clashes with a Supreme Court precedent California already lost: Brown v. Entertainment Merchants Association. In that 2011 case, the court struck down a California law that restricted minors’ access to violent video games. Justice Antonin Scalia’s majority opinion applied strict scrutiny — a demanding standard — and rejected the state’s argument that the law simply “helped” parents.
Scalia’s point applies with even greater force here. A sweeping ban on minors’ access to social media would function less as parental support and more as state substitution. The state would not merely empower parents; it would decide what parents should want, then impose that judgment across the board.
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In American law, parents generally hold the duty — and the right — to decide what media their children consume. That principle does not stop at the edge of the internet.
The broader fight over technology policy often turns on a single question: Will America stick with light-touch, sensible regulation that protects consumers without strangling innovation — or will it import the heavy-handed, fear-driven regulatory posture popular abroad, especially in Europe?
The American technology sector grew and thrived in the internet era. Many foreign regimes, more focused on expansive “safety” mandates than innovation, privacy, or consumer benefit, have not.
Lawmakers should borrow good ideas wherever they find them. But California keeps shopping in the wrong aisle. If Sacramento wants to protect kids, it should start with tools that don’t require building a mass ID-check system for the entire public — and that don’t hand criminals a richer trove of data to steal.
It’s wise to learn from other countries. It’s foolish to copy their worst mistakes.
In 1989, Justice Antonin Scalia cast the deciding vote to overturn the conviction of Gregory Lee Johnson, who was arrested and found guilty of violating a Texas statute after he burned the American flag outside the Republican National Convention.
The author of the 5-4 opinion was Justice William Brennan, the leading liberal and advocate for the “living Constitution” on the Supreme Court. For conservatives, it was one of the two most widely criticized votes of Justice Scalia’s illustrious career (the other being his vote refusing to recognize that parents have a natural, constitutionally protected right to direct the upbringing of their children).
The president’s executive order is not only much needed and long overdue, but is also very likely to be upheld by the Supreme Court when the inevitable challenges arise.
But the opinion by Brennan, which Scalia joined, is not as absolute as it has subsequently been portrayed.
It specifically held that Texas violated the First Amendment by prosecuting Johnson “in these circumstances” — that is, expressive conduct or symbolic speech as part of a political protest that was not designed to incite a crowd (nor did it have that effect). It also held that the “government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word.” Only laws directed at restricting the communicative nature of expressive conduct implicate the First Amendment, and even then they can be upheld for a valid governmental interest.
Texas offered two governmental interests in defense of its flag-burning statute: 1) preventing breaches of the peace and 2) preserving the flag as a symbol of national unity. The court rejected the second because it was related to the suppression of expression, and it rejected the first because “it was not implicated” in the case.
That is the important caveat in Texas v. Johnson that President Donald Trump’s executive order, “Prosecuting Burning of the American Flag,” seeks to capitalize on.
After articulating why the flag is such a cherished symbol, one for which “many thousands of American patriots have fought, bled, and died to keep ... waving,” the order asserts, “Desecrating it is uniquely offensive and provocative,” and is “a statement of contempt, hostility, and violence against our Nation.”
It then invokes the Texas v. Johnsoncaveat: “Burning this representation of America may incite violence and riot. American Flag burning is also used by groups of foreign nationals as a calculated act to intimidate and threaten violence against Americans because of their nationality and place of birth.”
The order correctly points out that the Supreme Court “has never held that American Flag desecration conducted in a manner that is likely to incite imminent lawless action or that is an action amounting to ‘fighting words’ is constitutionally protected.” And it laudably directs the attorney general to prioritize the enforcement of civil and criminal laws against flag desecration, quite correctly limiting it to flag-burning conduct that causes harm “unrelated to expression” in order to be consistent with the First Amendment as interpreted by the Supreme Court in Texas v. Johnson.
After 35 years of timid responses to the flag-burning case, in which elected officials and law enforcement at every level thought flag-burning was constitutionally protected no matter the circumstances (an erroneous view repeated ad nauseam by many critics of the president’s order), President Trump has taken a long-overdue stand to protect the flag. He is seeking to safeguard it from those who would burn it to incite violence, provoke with “fighting words,” or more broadly, seek to intimidate Americans from expressing patriotism and applauding American exceptionalism.
The incitement, fighting words, and intimidation exceptions have sometimes themselves been limited to acts targeting particular individuals rather than groups. But as the Supreme Court recognized in Virginia v. Black, a cross-burning case that was decided 14 years after Texas v. Johnson, the First Amendment doesn’t necessarily protect such conduct when targeting groups rather than specific individuals.
The aggressive use of American flag-burning as a tactic of incitement and intimidation, which has been on display in cities across the country in response to President Trump’s efforts to enforce our nation’s immigration laws, demonstrates that “in these circumstances” (as distinct from the milquetoast circumstances at issue in Texas v. Johnson), the president’s executive order is not only much needed and long overdue, but is also very likely to be upheld by the Supreme Court when the inevitable challenges arise.
Editor’s note: This article was originally published on the American Mind.
President Donald Trump's nomination of Assistant U.S. Attorney Rebecca Taibleson for the Seventh Circuit Court of Appeals has prompted questions about the extent of her alignment with the administration's conservative values, particularly in light of her and her husband's political donations to Democrats.
Trump's first term was undermined by several appointments that did not fully align with the administration's priorities, leading to setbacks in key legal battles and policy implementation. The president admitted that he received "bad advice ... on numerous Judicial Nominations," expressing that he was "very disappointed" with some of those picks.
'She brings an exceptional legal mind and a firm dedication to interpreting the law as written, not bending it to fit a political agenda.'
Mike Davis, a Trump ally and the founder of Article III Project, stated that the president's second administration would not make that same mistake again and instead would focus on selecting judges who are "even more bold and fearless" and have been "battle-tested."
Trump announced Taibleson's nomination in August, writing in a social media post, "It is my Great Honor to nominate Rebecca Taibleson to serve as a Judge on the United States Court of Appeals, for the Seventh Circuit, in the Great State of Wisconsin. Rebecca brings a wealth of EXPERIENCE AND SUCCESS, from her time as Assistant United States Attorney for the Eastern District of Wisconsin and, formerly, as Assistant to the United States Solicitor General."
"Rebecca has learned from some of the BEST and most HIGHLY RESPECTED Legal Minds in the Country, having clerked for United States Supreme Court Justices Brett Kavanaugh and Antonin Scalia. Rebecca will make a fantastic Judge who will fearlessly defend the Constitution, and strongly uphold the Rule of Law. Congratulations Rebecca!" Trump added.
While Taibleson, 42, meets all legal qualifications, having earned her J.D. from Yale Law, her background raises questions about her political leanings. In fact, her conservative critics have been quick to highlight that she and her husband have a history of donating to Democrats.
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Taibleson donated in 2022 to Joe Manchin, a former Democratic senator from West Virginia, through ActBlue, and in 2024 to Bridget Schoenborn, a judge nominated by Democratic Wisconsin Governor Tony Evers. However, she also donated to Mike Gallagher, a former Republican representative, and WINRED in 2016 and 2020, respectively.
Blaze News reached out to Taibleson for comment.
Her husband, Benjamin Taibleson, contributed to Joe Biden's 2020 presidential campaign against Trump, Kamala Harris' Senate campaign in 2015, and Forrest Dunbar, a Democratic member of the Alaska Senate.
Despite these donations to Democrats and other elements of her record that appear to her conservative critics at odds with the administration's priorities, Davis and the Article III Project have expressed their support for Taibleson.
"President Trump continues to deliver on his promise to appoint bold and fearless judges who will defend the Constitution and uphold the rule of law," Davis said. "His latest nomination of Rebecca Taibleson to the U.S. Court of Appeals for the Seventh Circuit is a testament to his unwavering commitment to restoring a judiciary grounded in constitutional principles and judicial restraint. She brings an exceptional legal mind and a firm dedication to interpreting the law as written, not bending it to fit a political agenda."
"As President Trump further reshapes the federal judiciary with judges who understand their role is to interpret the law, not make it, the Article III Project stands ready to support Taibleson through every step of the confirmation process. We are committed to ensuring the American people get the impartial, constitutionally faithful judges they deserve," Davis added.
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Taibleson's conservative supporters have pointed to her experience working as a clerk for Justice Antonin Scalia and Judge Brett Kavanaugh, even advocating for Kavanaugh's Supreme Court nomination, as proof of her commitment to uphold similar values. However, critics dispute this claim, noting that Scalia was known for hiring counter-clerks, or politically liberal clerks, and that Kavanaugh has been suspected of employing a similar practice.
For example, Department of Justice lawyer Danielle Sassoon opposed Trump's attempt to dismiss charges against New York City Mayor Eric Adams. Law professor Rachel Barkow stated that Trump's "use of the pardon power is part of his effort to put the country on an authoritarian path." Former Judge Michael Luttig described Trump as "a clear and present danger to American democracy." Notably, all four individuals were former clerks for Scalia.
Some of Taibleson's conservative supporters also point to her time with the Solicitor General's office beginning in the first Trump administration. However, she remained on with the Biden administration through 2022, including defending Biden's student loan forgiveness policy in a lawsuit brought by the Brown County Taxpayers Association.
As Taibleson's confirmation process unfolds, various aspects of her record will likely spark ongoing debate about whether she fully embodies the bold constitutionalism Trump has pledged for his judicial nominees, or whether potential misalignments could mirror the challenges faced during his first term.
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