A possible win for the kids of America

On Tuesday, the Supreme Court heard oral arguments in a pivotal case. Free Speech Coalition v. Paxton concerns the constitutionality of a Texas law that aims to shield children from online obscenity by requiring pornography websites to require users over the age of 18 to pass through an age gate to view content.

On the positive side, a majority of the justices seemed to indicate they would rule in favor of Texas in the case. The questioning got off to a strong start when Justice Amy Coney Barrett pressed the attorney for the Big Porn websites about why the barrier for restricting kids’ access to obscenity should be different online than for brick-and-mortar stores. Justice Neil Gorsuch likewise emphasized that we don’t want two separate constitutional regimes in our country, one for the online world and one for the real world, but rather, the goal should be to have those be as similar as possible.

Importantly, many of the justices’ questions focused on changes in the technology over the last 20 years that have made porn easier to access for children and age verification easy and anonymous for adults. Early on, Justices Barrett, Samuel Alito, and Brett Kavanaugh all emphasized the ineffectiveness of online filters. When the lawyer for the porn sites tried to push content filtering as the solution instead of this Texas law, Justice Barrett interrupted him and explained that with smart devices everywhere, filters aren’t working, as shown by how porn addiction is exploding. Justice Alito, added, “Do you know any parents who are more tech-savvy than their 15-year-olds?” The courtroom erupted in laughter, as he concluded, “That is the problem with filtering. Filtering doesn’t work.”

Filtering has sadly been the status quo for the last 20 years since the court last ruled on an age-verification law in Ashcroft v. ACLU (2004), in which the court found that age verification was not constitutional because filters would be an “effective and less restrictive means.”

From Tuesday’s arguments, however, it is clear that this court understands how untrue that has become. Chief Justice John Roberts, in particular, emphasized how technological changes should affect how the court applies the law.

The fact is that the court’s standard of scrutiny for age verification was set in an entirely different technological era. The main issue being debated before the court on Tuesday was what standard of legal review should be applied to the Texas law, which requires pornographic websites doing business in the state to “use reasonable age verification methods” to verify that a customer “is 18 years of age or older.”

The state of Texas asked the court to apply the lowest standard of constitutional review (“rational basis”), which allows the government the most latitude for its actions, relying on a case called Ginsberg v. New York (1968). Based on this case and other precedents, Texas argued that its state law only imposes a gatekeeping function on pornography websites to ensure their audiences don’t include children. And so, while the law is a content-based restriction, it does not restrict speech, since it is a law about access, specifically restricting children’s access to speech that is not protected for children, in other words, obscene speech. This was the same issue in Ginsberg, which was about a law restricting children’s ability to purchase obscene magazines from brick-and-mortar stores. As in Ginsberg, the Texas law does not prevent in any way adults from accessing this material, so as Texas argued, rational basis should apply.

The attorney for the pornography websites, however, claimed the law places a burden on adults’ access to protected speech, that they have to verify their age, and so it should trigger the highest level of judicial review (“strict scrutiny”), which is difficult for the government to satisfy. Applying strict scrutiny would mean the state of Texas has to prove that age verification is the “least restrictive means” for accomplishing that interest.

From their questioning, the justices seemed to be landing somewhere in between the two. The court is grappling with how to allow states to protect children from obscenity online (there was no dispute it’s a compelling government interest) while also protecting adults’ access to protected speech.

While it’s too early to say exactly how the court will rule on the law, I am cautiously optimistic that there are good reasons to expect a strong outcome for Texas. A majority of the justices seem to recognize that the technological landscape has fundamentally changed, that age verification can be done easily and anonymously, and that the online world should not be governed by fundamentally different laws than the real world.

A win for Texas will be a win for all Americans, especially America’s children.