Published March 24, 2024
Porn companies do nothing to shield our children from their explicit and obscene content, which is increasingly violent and barbaric. That may finally change, thanks to Texas’s new age-verification law for porn sites, H.B. 1181, and the recent Fifth Circuit opinion in Free Speech Coalition v. Paxton upholding it.
Inspired by the example of Louisiana, seven states, Texas among them, have adopted legislation in the last two years to restrict minors’ access to obscenity on the Web. Perhaps as many as a dozen more states will follow suit in 2024. After years of legislative inaction, this is the first serious effort to block American kids from accessing porn sites since the Supreme Court struck down the federal Children’s Online Protection Act (COPA) in Ashcroft v. ACLU (2002).
And it’s about time. Parents need help. The effortless availability of pornography in every home in America today would have been inconceivable 20 years ago when only adult bookstores or similar venues sold such materials, which, thanks to zoning and age requirements, were inaccessible to children.
In a shocking transformation within the last decade, today’s youth have at their fingertips infinite pornographic content, 24/7. The smartphone has made explicit sexual imagery endemic, private, and a click away. Kids don’t even have to go looking for it; social media are often the first entry point to pornographic sites.
Pornography is harming children’s brains and hampering development. It has been shown to affect users like a drug, causing addiction, rewiring neural pathways, and impairing the prefrontal cortex’s executive function and impulse control. It has also coarsened, and in too many cases, sabotaged, the relationships between the sexes. Young men see little need to make themselves attractive and pursue a relationship with a real woman when an easily accessible alternative exists. And young women have to compete against idealized and slavish images. Pornography undermines romantic love, which is one of the most reliable wellsprings of human happiness.
Unfortunately, the challenges of new internet technologies caused society and lawmakers to largely throw up their hands at protecting kids from sexually explicit material, despite collective agreement that it is totally unsuitable for children and even illegal. Technology, however, is not wholly to blame — rather, Ashcroft v. ACLU shares responsibility for the legislative inaction over the past 20 years.
This pre-smartphone, pre–social media decision — premised on the notion that pornography could be easily contained within restricted parts of the internet that could be blocked out by parents installing content filters — struck down the 1998 COPA, a federal age-verification law. While the Court acknowledged the government’s compelling interest in protecting children from online obscenity, it found filters to be a less restrictive means (to adults) for protecting children. The reality is that filters have just not been as effective as the Court anticipated. Under existing technological conditions, it is extremely difficult for parents to monitor their kids, who exploit work-arounds and glitches in the filters. And filters are blocked from operating inside most apps. When children can access Pornhub within five clicks on Snapchat, all while staying inside the app, a parent with a filter is powerless to protect them.
For decades, Ashcroft scared congressional and state lawmakers away from trying to combat children’s access to online pornography. States, which have the power to regulate obscene and indecent content within their boundaries, had largely bowed out of the fight. Children remained unprotected from online exposure to pornography, victims of the deluge of exploitative content unleashed by new technologies. Until now.
Our organizations, the Ethics and Public Policy Center and the Center for Renewing America, later joined by the Institute for Family Studies, have been working over the past few years to educate states on the authority they still have to regulate obscenity on the internet and encourage them with numerous policy papers and model legislation to not throw up their hands but to enact age-verification (and other) laws to combat children’s access to pornography.
We cheered Louisiana on as it became the first state to pass an age-verification requirement for porn websites into law in 2022 and have encouraged other states to remain bold, despite a ferocious backlash from lobbyists representing Big Porn. And the latest victory in this battle came on March 7, when the Fifth Circuit ruled that Texas’s law was constitutional. This is a landmark step forward.
In the brilliant opinion written by Judge Jerry E. Smith in Free Speech Coalition v. Paxton, the court looked to an older case involving girlie magazines, Ginsberg v. New York, 390 U.S. 629 (1968). There, the Supreme Court had reviewed regulation of the distribution of obscenity to minors and ruled that such regulation is subject only to the highly deferential rational-basis review, because what was considered obscene for minors is different from what might be obscene for adults. Because the state has an interest in maintaining only age-appropriate access to certain content, the Court ruled that it was not too burdensome to require the IDs of adults to purchase porn. This has direct application to Texas’s age-verification law and other laws like it.
In contrast, Ashcroft struck down COPA using the exacting strict-scrutiny review. But, as Judge Smith observed, Ashcroft never ruled on the appropriate level of scrutiny because parties did not even present the question. Smith correctly ruled that, given that obscene content has no First Amendment protection, courts should follow Ginsberg and review state laws limiting children’s access to obscenity under the deferential rational-basis test rather than strict scrutiny.
As Judge Smith wrote, age verification on the internet today need not be burdensome to adults and adult speech. With the development of techniques relying on zero-knowledge proofs, now widely used in cryptocurrency, and other cryptographic techniques, anonymous online authentication of age, or of any other feature, is possible. This development challenges the calculus made in Ashcroft. Age verification can in fact be the least restrictive means for adults and the best means to effectively protect children.
While the ruling is justified by a richer understanding of the relevant jurisprudence, it now falls to the Supreme Court to decide whether it will uphold the Fifth Circuit’s understanding of precedent and permit other states to experiment with efforts to restrict children’s access to pornography. But apart from these legalistic distinctions, there are other reasons why America’s highest court should rule in their favor. Since the emergence of mass-produced obscene and pornographic material in the 19th century, there has been a societal understanding that children should not have access to explicit sexual material. The internet, combined with some ill-advised Supreme Court decisions (which are the true aberration in this longer history), upset the original social consensus that existed for a century.
Our unhappy children, who go on dates and form romantic attachments at dramatically lower rates than previous generations — or who are tormented by sexting and revenge porn — every day remind us of the wisdom of that original consensus. The Supreme Court must allow common sense to win the day.
Clare Morell is a Senior Policy Analyst at the Ethics and Public Policy Center, where she directs EPPC’s Technology and Human Flourishing Project. Prior to joining EPPC, Ms. Morell worked in both the White House Counsel’s Office and the Department of Justice, as well as in the private and non-profit sectors.
