A small price to pay

The Supreme Court will hear oral argument today in the porn industry’s challenge to a Texas law that requires websites to verify the age of their viewers if “more than one-third” of their content includes “sexual material harmful to minors.” The porn industry concedes this content harms children but argues that age verification burdens adults who have a constitutional right to view some of this content. The Supreme Court case, Free Speech Coalition v. Paxton, cuts both ways as it attempts to deal with protections for minors that incidentally burden adult access to what the court considers protected content.

No one pretends that pornography does not harm children. Like social media companies, pornography sites use algorithms to keep customers online. Repeated exposure can cause depression and psychosomatic symptoms; lead to tobacco, alcohol, and drug use; inhibit social function; and lead to risky or dangerous sexual behavior. Given the ubiquity of smartphones and internet-capable devices, children today have instantaneous access not only to sexual content but also to graphic depictions of rape, strangulation, and other violence. Shockingly, in 2022, 54% of children under the age of 13 had been exposed to pornography.

Texas thus enacted its age-verification law to protect minors from accessing content harmful to them.

The porn sites seek refuge in the First Amendment, claiming that the Texas age-verification law is unconstitutional because it infringes on the free speech rights of its adult users. Because the law requires age verification—through an ID, credit card, or biometric scanning—the porn industry says the law discourages access by adults.

A couple of First Amendment doctrines are at play and will help determine how the court decides this case. Controversially, the Supreme Court has held that the First Amendment protects most types of pornography. There are only two exceptions. Pornography involving child victims is not protected by the First Amendment. And while the Supreme Court has held that “obscene material is unprotected by the First Amendment,” it narrowly defines what counts as “obscene.”

In the Miller v. California case, the court set out a three-part obscenity test: The material must be (1) prurient, (2) depict sexual content in a patently offensive way, and (3) have no “serious literary, artistic, political, or scientific value.” Federal courts applying this standard have held that most pornography is not “obscene” and so receives First Amendment protection.

Still, the rules are different where children are involved. States may protect minors from material that would be obscene from a child’s perspective—even when that pornography would be protected by the First Amendment if viewed by adults.

In the Ginsberg v. New York case, the Supreme Court held that a state could prevent the sale of sexual magazines to minors and that laws protecting children from sexual content were not subject to heightened First Amendment scrutiny and instead need only be rational. Under the decision in Ginsberg, states can require age verification for sales of physical media from brick-and-mortar stores, even media that is constitutionally protected for adults.

Texas argues that the state’s authority to protect minors has not changed just because pornography has moved online. The porn industry counters that where a state’s regulation of minors’ access to sexual content online burdens adults’ access to constitutionally protected expression, then the regulation must satisfy the highest First Amendment standard.

The porn industry relies upon Ashcroft v. American Civil Liberties Union. In that case, the Supreme Court reviewed the federal Child Online Protection Act, a statute enacted “to protect minors from exposure to sexually explicit materials on the Internet.” Like the Texas law, COPA applied to content that was obscene for minors but not adults and required age-verification measures.

The Supreme Court found COPA unconstitutional under the First Amendment and was concerned that the law suppressed “speech that adults have a constitutional right to receive.” The justices concluded that the government must meet strict scrutiny, which requires that the government both have a compelling interest and show that the regulation is the least restrictive means of achieving that interest. The court then invalidated COPA because content-filtering software offered a less restrictive alternative for preventing minors from accessing pornographic content.

The porn industry says that the Texas law should fall just like COPA. Texas, in contrast, says that its law is no more burdensome on adults than the law in Ginsberg, and history has shown that content filtering is not a viable alternative.

The nature of the porn industry’s challenge may also matter. The industry brought a facial challenge to the Texas age-verification law. Thus, it has to show that “a substantial number” of the law’s applications are unconstitutional. Texas says the industry cannot do this because much of the online content is obscene for adults, too. This could be a way for the court to avoid the difficulty of reconciling its decisions in the Ginsberg and Ashcroft cases.

While the legal landscape is complicated, the Supreme Court should make two things clear. First, states have a right to protect minors from pornographic content. And second, where a statute is narrowly tailored to protect minors, an incidental burden on adult access is constitutionally permissible and a small price to pay.