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Age verification is constitutional

The Lone Star State’s crusade against pornography

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Age verification is constitutional
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Texas recently won another victory in the fight to protect children from pornography. After multiple lawsuits from the adult content lobby, The Free Speech Coalition, the U.S. Supreme Court ruled that Texas could enforce an age verification law while lower courts debate whether the law is constitutional. In protest, Pornhub disabled its website such that it is no longer available in Texas.

The background is important. In 2023, Texas enacted an age verification law that required websites with adult content—usually defined as a website with 33.33 percent or more of its content that is sexual or pornographic—to verify that their users are over 18 years old.

After Louisiana enacted the nation’s first age verification law in 2022, nine other states have followed suit, including Florida, Arkansas, Indiana, Mississippi, Montana, North Carolina, Utah, Virginia, and now Texas. Several other states are considering similar legislation. In almost every state, Pornhub and its affiliates have refused to comply with the law and have either withdrawn their website from the state or continued in defiance of the law. 

The ongoing legal debate has centered on the question of how to manage two competing interests: adults’ so-called first amendment right to view pornographic material and protecting children from viewing or appearing in such material themselves.

For many, age verification laws are a straightforward solution to the competing interests of what some adults want and what all children need. By prohibiting minors from accessing such content, while enabling adults an anonymous way to verify that they are over 18 years old, age verification laws would be a form of cultural settlement.

Of course, popular pornography websites do not agree. The Free Speech Coalition, an adult-industry lobby, has been a ferocious opponent of age-verification laws in the United States. The group claims that this issue is about First Amendment free speech and online privacy concerns. Of course, age verification laws do not limit an adult’s ability to access pornography. The real reason for their opposition is far grimmer—money.

After Louisiana passed its age verification law, Pornhub reported an 80 percent decrease in traffic to its website. Of course, fewer viewers means less money. In a tweet from Laila Mickelwait, she shows examples of Pornhub’s senior community manager publicly confessing that age verification laws result in the loss of money due to the loss of viewers and the additional cost of verifying each of the millions of people who access their website. “Profit,” Mickelwait argues, “should never be put ahead of child protection.”

Republicans and engaged Christians must prioritize laws that protect minors—and all people—from the harms of pornography.

Similarly, the Free Speech Coalition cites privacy concerns related to age verification arguing that age verification mechanisms—such as those that require a person to upload their government ID—risk information leaks to the public or the government. This concern, too, has been largely mitigated using advanced cryptographic techniques that allow web browsers to use online cookies or other information that is already available to verify a person’s age.

While First Amendment free speech and privacy concerns should be considered with the highest level of scrutiny—as the Supreme Court did in Reno v. ACLU (1997) and Ashcroft v. ACLU (2004)—Jon Schweppe, director of policy for American Principles Project, told me that “the Supreme Court has previously recognized a compelling state interest in protecting kids from [online] material harmful to minors.” He goes on to say that he “believes requiring porn websites to implement age verification technology is the least restrictive means to defend that interest.”

Republicans and engaged Christians must prioritize laws that protect minors—and all people—from the harms of pornography. The political momentum is moving that direction as lawmakers realize that the playboy pornography of the 1990s has devolved into a cesspool of easily available and deeply disturbing content. As Michael Toscano recently told me,

The requirement that pornography sites age verify their users is just common sense. Children do not have a First Amendment right to view pornography; secondly, porn companies do not have a First Amendment right to addict children to porn. We should remember this is not a requirement to age verify your grandaddy's Playboy (which kids also have no right to). Investigations into PornHub have found it to be infested with rape videos, revenge porn, and other moral barbarities. The states have a rational interest in requiring that these sites—which make money off harvesting user data and providing targeted ad space—do not gain access to children.

Conservatives have long focused on individual ways to curb pornography with device monitors such as Covenant Eyes and Canopy. Nonetheless, they have failed to use political power to limit or ban access to pornography itself. We need courageous lawmakers and Christians to expose the evils of pornography and put an end to this odious industry.

Emma Waters

Emma Waters is a research associate in The Heritage Foundation’s DeVos Center for Life, Religion and Family.

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