On Wednesday, the Supreme Court heard oral arguments in Free Speech Coalition v. Paxton, a case whose outcome will determine how states can constitutionally protect children from sexually explicit material online. At issue is Texas’s House Bill 1181, which requires websites composed of more than one-third of “sexual material harmful to minors” to verify users’ ages before allowing access to their sites. Similar statutes in 18 other states will stand or fall on the decision. Given pornography’s risks of addiction and harm to children’s development, the verdict will have far-reaching effects on American culture.
The Court’s most recent holding on this issue, in Ashcroft v. ACLU (2004), struck down a 1998 federal statute with similar age-verification requirements. Ashcroft’s majority found that such policies were more restrictive than alternative measures—such as filtering and blocking technologies—to protect kids from accessing sexual materials.
Since then, the explosion in porn use and addiction among young people has proven such technologies ineffective. The proliferation of smartphones has revolutionized the transmission of pornography. A Common Sense poll found that 73 percent of teens aged 13 to 17 have viewed online porn. Kids can now access worlds of graphic, degrading, sadomasochistic, and violent content at their whim, affecting their psychological development and understanding of relationships and sexuality.
In response to these risks, Texas passed HB 1181 in June 2023. Before the law took effect, the Free Speech Coalition, a pornography trade association, sued the state in federal court to enjoin the law’s implementation—a motion that was granted, but later reversed by a divided Fifth Circuit panel. Shortly thereafter, Pornhub shut down access to its site in Texas.
The association, their amici, and the district court contend that HB 1181 is a content-based restriction on speech, which necessarily triggers strict scrutiny, the most stringent form of judicial review. Texas and the Fifth Circuit panel, meantime, reason that the Supreme Court treats in-person age-check requirements, such as ID checks at magazine shops, under the deferential rational-basis standard, and should do the same to analogous online methods. The Court agreed last July to decide the narrow question of which standard of review should apply.
In November, the Manhattan Institute filed an amicus brief (in which I served as co-counsel) on the side of Texas. It explains the technologies behind cutting-edge age-verification methods, such as “zero-knowledge proofs” and biometric age-verification and estimation (e.g., face and hand scans that don’t save images), which protect users’ privacy at minimal cost. Trusted third-party services can verify ages within seconds and provide a digital token proving that users are over 18. Age-restricted websites that accept this token thus receive no personal information except that the user meets the age requirement. These convenient and privacy-protecting verification methods should be able to pass any level of judicial review—indeed, even strict scrutiny.
At oral argument on Wednesday, the justices quickly moved beyond the applicable standard of review to the broader question of the constitutionality of requiring age-verification in light of today’s technologies. The justices voiced varied concerns about the ubiquity of porn available to minors on smartphones, the ineffectiveness of filtering technologies, and the ease of access to online porn compared with the age checks required at brick-and-mortar stores. Texas seems poised to defend HB 1181; the big question is the extent to which the Court’s ruling will guide lower courts in how age-verification requirements can survive the applicable level of judicial scrutiny.
Every day, American children are exposed to harmful content because of the outdated Ashcroft precedent. By updating its precedent to reflect today’s realities and age-verification technologies, the Court can allow states to protect children while upholding the First Amendment.
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