The Supreme Court heard oral arguments on Jan. 15 in Free Speech Coalition v. Paxton regarding the constitutionality of Texas’s age verification law passed last year.
The Texas law imposes requirements on pornography websites to enact “reasonable age verification methods” to prevent minors from accessing harmful content. This law was passed in response to the rising tide of severe harms affecting children who face an internet rife with hardcore sexual content that is almost impossible to avoid. And Texas is not alone. Eighteen other states have passed similar age verification laws.
For most people, age verification is a commonsense policy and long overdue. But the court is wrestling with precedent from the dawn of the internet age that found a federal law involving age verification unconstitutional. That case is Ashcroft v. ACLU, but the law at issue in that case was drastically different from the Texas law currently before the court. The Ashcroft case dealt with a federal law that criminalized the posting of content harmful to minors and only provided age verification as an affirmative defense. Furthermore, the case was decided in 2004 with a radically different technological landscape.
Thankfully, common sense ruled the day as the justices demonstrated a clear-eyed understanding of several realities we all know to be true in today’s world.
When it comes to online pornography exposure, punting all the responsibility to parents is a cop-out.
In a flashback to 2004, Derek Shaffer, the attorney representing the pornography industry, argued filters were a better solution than age verification for protecting children and, therefore, the Texas law does not pass First Amendment scrutiny. This was the same argument that was successfully made in the Ashcroft case when the internet was new.
Thankfully, this time, the argument was met with skepticism from the justices.
Justice Amy Coney Barrett, mother of seven children, noted, “It’s been 20 years since Ashcroft. The iPhone was introduced in 2007, and Ashcroft was decided in 2004. I mean, kids can get online porn through gaming systems, tablets, phones, computers. Let me just say that content filtering for all those different devices, I can say from personal experience, is difficult to keep up with. So I think that the explosion of addiction to online porn has shown that content filtering isn’t working.”
Justice Samuel Alito elicited laughter from the courtroom when he asked, “Mr. Shaffer, do you know a lot of parents who are more tech-savvy than their 15-year-old children?”
Children are being exposed to hardcore content regularly, and it is a very serious problem.
It was a relief to hear the justices challenge Shaffer, who was forced to acknowledge that the majority of content on Pornhub’s website is hardcore sexual content.
Alito specifically asked about Pornhub and whether the majority of the content on that website is obscene to children. And Shaffer conceded that it is. Justice Neil Gorsuch got Shaffer to concede that at least 70% of the content on the pornography websites targeted by the Texas law would be obscene to children, meaning without First Amendment protection.
And pressing further, Gorsuch asked, “Then do you agree that there is a compelling government interest in keeping obscene materials from minors?” To which Shaffer answered, “Yes, unequivocally.”
The significance of this exchange is it establishes that the Texas law meets the first prong of even the toughest First Amendment test.
Internet companies should have to abide by the same standards as brick-and-mortar companies.
And producing perhaps the most important concession of all, Gorsuch pressed a point made by several of the justices: “Do you agree that at least in theory brick-and-mortar institutions shouldn’t be treated differently than online, and vice versa, that that principle, that we shouldn’t have a constitutional regime that prefers one technology over another?”
After resistance, Shaffer conceded, yes, the same constitutional standards should apply in internet contexts as they would in the physical world.
This is a particularly salient point as parents have risen up to demand a safer internet for children via the Kids Online Safety Act, which had massive bipartisan support but stalled out in the House. This bill advanced amid calls for reform to Section 230 of the Communications Decency Act, a federal law that has been interpreted by courts to provide near blanket immunity to websites for even the most heinous harms, even to our most vulnerable.
These questions by the court mark a pattern that has surfaced over the past several years of general skepticism by the Supreme Court toward the idea that the internet or web-based corporations deserve any special protections.
The crucial issue before the court at the Jan. 15 hearing was whether government-required age gating of pornographic content squares with the First Amendment. Because this challenge was brought at the earliest stage of the case, the justices appeared unwilling to make a determination as to whether the Texas law specifically is constitutional or not. The forthcoming decision will likely only decide whether the U.S. Court of Appeals for the 5th Circuit applied the correct standard in upholding the law. If the court decides the wrong standard was applied, it will establish the correct standard and send the case back to the trial court with instructions.
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It has been two decades since the Supreme Court last analyzed whether lawmakers can age-gate minors from obscene content online. Clearly, the landscape has changed since then. It is apparent that all the justices understand the stakes. I hope the court affirms the 5th Circuit decision holding that a law restricting minors’ access to obscene content does not unconstitutionally burden adult access to lawful speech. That holding applied the most lenient First Amendment test: rational-basis scrutiny.
But whatever standard the Supreme Court establishes, I came away from the oral argument confident that we will get a fair and commonsense decision that provides helpful guidance and a path forward that allows states to protect children while honoring the First Amendment.
Dani Pinter is the senior vice president and director of the Law Center at the National Center on Sexual Exploitation. Follow NCOSE on X @NCOSE.