Can states force pornography websites to verify the ages of their users? Or is it unconstitutional to protect children online?
On Wednesday, the Supreme Court will hear oral arguments in the case Free Speech Coalition, Inc. v. Paxton. The case concerns a Texas law that requires online pornography companies to verify that their users are 18 or older, a law that some pornography companies argue violates the First Amendment.
The law requires any company that intentionally publishes material to a website, including social media platforms, “more than one-third of which is sexual material harmful to minors,” to use a commercially viable method of age verification before granting users access.
“Sexual material harmful to minors” is defined as material that, taken as a whole, and with respect to children, is designed to appeal to the prurient interest, depicts sexual acts or private parts in a patently offensive way, and lacks any serious literary, artistic, scientific, or political value.
The law is carefully crafted. It exempts news organizations and services such as search engines that just happen to provide access to material that they don’t control. The law also includes a privacy provision that requires age verifiers to delete any personally identifiable information and establishes hefty penalties for failure to do so.
The Texas law is similar to laws already on the books in 19 states and counting, as well as requirements across much of the Western world, including in Australia, France, Germany, the United Kingdom, and, for very large pornography companies, in the European Union as a whole. It also mirrors similar requirements for brick-and-mortar sellers of “adult entertainment,” or for sellers of any number of age-restricted items, such as alcohol and tobacco. Age verification technology is already commonly used online by a number of industries including online gambling companies and cigarette websites.
While some pornography companies currently use age-verification technology, complying with the law, others do not. Some of these noncompliant companies sued to prevent the Texas law from being enforced. They argue that access to pornography is a fundamental right protected by the First Amendment and that, therefore, the law should be subject to “strict scrutiny,” the most stringent level of judicial review. They claim that the efforts to keep children out may deter or burden some adults attempting to access pornography and that the law is, therefore, an unconstitutional burden on their rights. They admit that keeping children from accessing pornography is a compelling government interest but object by arguing that the onus should be on somebody else — for example, parents or device manufacturers.
Texas counters with the fairly straightforward argument that because age-verification requirements are acceptable in the real world, there’s no reason to create a special constitutional rule that exempts pornography companies online. The Supreme Court upheld similar laws requiring brick-and-mortar stores to keep pornography away from children and applied a far less severe test than the one the pornography companies are asking for. It has also upheld similar requirements for “dial-a-porn” companies that operate over the phone.
Many of the pornography companies’ arguments seem silly when one considers their real-world implications. The companies and their allies argue that some minors may be able to get around age-verification checks. But the same is true in the real world — many manage to obtain alcohol before they turn 21, for example — and this fact does not make the real-world laws invalid. They also argue that the burden to keep children safe should be on parents, not the pornography providers. But we don’t accept this argument in the real world from a bar or the adult video store that just doesn’t want to check an ID. Likewise, someone may have been embarrassed to go into the adult section of video stores in the past, but this did not mean that the Constitution required pornography to be distributed throughout the entire store.
The First Amendment, Texas points out, doesn’t invalidate a state’s law simply because the activity the law regulates involves something that could be described as “expressive” in some way. Laws against fraud, defamation, or incitement, for example, aren’t constitutionally suspect simply because some sort of speech is involved to commit them.
Likewise, the unbroken legal tradition in the United States since its founding is that the First Amendment does not bar regulations on obscenity. Texas lays out a number of disturbing examples illustrating that much, if not most, of the content on the platforms at issue in this case qualifies under the court’s working definition of obscenity. We’re not talking about the content you might find in Playboy or Hustler magazines of yesteryear. As Texas makes clear, the parties to this case host hundreds of thousands of free, hardcore videos depicting sexual assault and rape. Certainly, no one has a constitutional right to provide this material to children, and all the law requires is that pornography companies make a good-faith effort not to do so.
Some of the difficulties in this case, though, come from the fact that it combines two areas of law where the court has been, to put it charitably, a little muddled in the past: obscenity law and internet law. Judges are loath to talk about pornography, and many seem to have only a rudimentary understanding of how the internet works. In past cases where these areas have converged, the results have been more than a little embarrassing.
Two cases stand out. The first, Reno v. ACLU, in 1997, concerned the Communications Decency Act, which gave internet companies their notorious “Section 230” immunity but, in exchange, required them to block minors from accessing pornography. The justices struck down the antipornography provisions but kept the immunity. Part of their reasoning was that while similar laws regulating the “broadcast medium” were acceptable, they should not apply to the internet because “the internet is not as ‘invasive’ as radio and television.”
Congress wrote a new law addressing some of the court’s concerns, and the next year, lawmakers passed the Child Online Protection Act. The courts waffled for a decade — the law reached the Supreme Court twice, in 2001 and 2004, but a lower court blocked its enforcement in 2008.
In these cases, the courts predicted that the problem Congress was trying to address would soon be resolved without the legislation anyway. Some of these predictions were laughable. They argued, for example, that the recently created “dot kids” top-level domain would make the internet safe for children. They predicted that bans on misleading names for pornography sites, such as “www.whitehouse.com,” would solve the issue. They also argued that technological development in the area of internet filters would make the problem moot in the near future.
None of these predictions came to pass. Since the court’s rulings, filters have become better, more ubiquitous, and easier to use, as predicted, but have still been totally ineffective. The problem of minors accessing, intentionally or unintentionally, pornography online has only gotten worse. The average age of exposure to pornography is now 12 years old, and the rise of the smartphone and video-streaming sites has increased the damage exponentially.
The court’s past musings on obscenity have not helped either. The court has reasonably tried to distinguish between unprotected obscenity on the one hand and all remotely sexual content on the other. Many times, these discussions have revolved around things such as nude paintings or romance novels. But this distinction has been left so hazy that the pornography companies in this case are arguing, with a straight face, that the more than 300,000 free videos of “teen bondage gangbang[s]” cited in Texas’s brief should fall into a similar category.
The instructions from the courts have been so confusing that some of the requirements they have suggested in the past, for example, that these laws only apply to companies or exclude search engines, are now being used as evidence that the current Texas law is unconstitutionally underinclusive. In other words, Texas is being punished for following previous courts’ advice.
In essence, while the courts insist there is some way of making this law constitutional, they have rejected every possible method of doing so.
Meanwhile, legislatures have been insistent for nearly three decades that now-common age-verification technology is the best way to address the problem. Politico has described age verification as “perhaps the most bipartisan policy in the country.” Most of the laws requiring it have been passed almost unanimously, with overwhelming support on both sides of the aisle.
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Polling commissioned by the American Principles Project, where I work, has found that 83% of the public supports age verification laws for pornography sites. Another recent poll found that the multibillion-dollar pornography industry ranked fourth out of 40 on a list of industries people think need more regulation. That’s higher than the tobacco, gambling, and cannabis industries, as well as health insurance, oil and gas, and banking and finance.
Since the dawn of the internet, people have had a consistent and modest demand: Pornography companies should at least try not to distribute obscene content to minors. But for 30 years, the courts have prevented them from enforcing this demand. On Wednesday, we’ll have a better sense of whether this state of affairs is likely to continue. Let’s hope the Supreme Court finally allows the people and their legislatures to have a say.
Jon Schweppe is the policy director at the American Principles Project. Follow him on X @JonSchweppe.
This article was originally published at www.washingtonexaminer.com
