WASHINGTON — I start with a salute to U.S. Supreme Court Justice Elena Kagan.
On Friday, the nation’s top court released a 6-3 majority opinion written by Justice Clarence Thomas that rightly upheld a Texas law requiring pornography websites to verify that users are 18 or older before providing access.
Kagan wrote the dissenting opinion for Free Speech Coalition v. Paxton. She has to know that her view must rankle many parents and commonsense voters, but she is sticking with her view that “obscene-for-children” speech is “constitutionally protected expression.”
Joined by Sonia Sotomayor and Ketanji Brown Jackson — the other two justices picked by a Democratic president — Kagan argued, “No one doubts that States have a compelling interest in shielding children” from sexually explicit speech. And: “What is more, children have no constitutional right to view it.”
Note that the Thomas opinion isn’t intended to stop anyone from producing pornography. It’s intended to prevent sleazy websites from displaying porn to children.
But, and you knew there would be a but in there, for Kagan, the rub is that an 18-or-older verification requirement for covered websites likely would entail a government ID — with the risk of porn users being publicly exposed, presenting a “deterrent” — or “chilling effect” — for adults.
Or maybe the chilling effect is on Pornhub, a party to the Free Speech Coalition challenge. Pornhub no longer operates in Texas and other states with age-verification rules.
Don’t equate an online verification requirement with the brick-and-mortar era of flashing an ID to get into a club, Kagan warned, because a user’s data might be hacked or subpoenaed.
If Kagan gets points for brass, Thomas wins when it comes to living in the real world. Texas and other states require proof of legal age to obtain alcohol, tobacco, a lottery ticket, a tattoo, fireworks, and a driver’s license. Ditto for a handgun license, gambling, and renting a car.
Age verification for online users is an important tool, Thomas argued, because “Unlike a store clerk, a website operator cannot look at its visitors and estimate their ages.”
The proof-of-age requirement, Thomas argued, “does not directly regulate the protected speech of adults.” It’s about protecting children.
In the opinion, Thomas, the longest serving justice on the big bench, took a walk through the court’s grappling with a nascent internet, which had to be explained as “an international network of interconnected computers.”
In 1999, only two of five households had home internet access, mostly dial-up. In 2024, 95 percent of teens had access to a smartphone.
In 2019, Thomas reported, Pornhub published 1.36 million hours of new content.
So who’s the underdog in this story? Not Big Porn.
Free speech will survive.
Institute for Justice senior attorney Paul Sherman, who wrote an amicus brief for the Free Speech Coalition, noted in an email to me that the “most important thing about the Court’s ruling is what it does not do. The Court explicitly refused to water down the extremely rigorous scrutiny that applies to most direct regulations of speech.”
“Instead, it crafted a narrow rule that applies only in the rare situation in which the same speech is fully protected for adults and unprotected for children. Although that rule is hard to square with the rest of the Court’s precedent, it is unlikely to have a major impact beyond the context of age verification for pornography.”
In other words, win-win.
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Contact Review-Journal Washington columnist Debra J. Saunders at [email protected]. Follow @debrajsaunders on X. COPYRIGHT 2025 CREATORS.COM