Does having a right as an adult mean you don’t need to prove anything, such as age, to exercise or obtain that right? That’s certainly not the case when it comes to applying for a credit card, registering to vote, renting a car, purchasing tobacco, or entering a nightclub, but since the dawn of web browsing, a loophole for online pornography has existed.
Now, the Supreme Court has closed that loophole. In Free Speech Coalition, Inc. v. Paxton, the court declared that “no person—adult or child—has a First Amendment right to access [obscene] speech without first submitting proof of age.”
This means Texas and 23 other states may enforce their laws requiring pornography websites to verify that each of their users is indeed 18 or older.
In Paxton, the Free Speech Coalition petitioned the court on behalf of pornography companies, arguing that the Texas law (Texas HB 1181) violated the First Amendment.
In its decision, the court upheld the law, determining that it only incidentally burdened the protected speech of adults and that, therefore, it triggered and survived intermediate scrutiny. This was historic because it signaled a shift in how age verification laws are evaluated under the Constitution.
Previously, cases regarding restrictions on minors’ access to obscene content were subject to strict scrutiny, the highest standard of judicial review. In Free Speech Coalition v. Paxton, the court of appeals applied a more deferential standard—rational basis review—holding that the law was reasonably related to the government’s compelling interest in protecting children from pornography.
That departure from precedent prompted Supreme Court review. The justices ultimately adopted a more balanced approach that affirms the legitimacy of state efforts to safeguard minors online.
Justice Clarence Thomas, author of the majority opinion in Free Speech Coalition v. Paxton, said previous cases on obscenity triggered strict scrutiny because they involved some degree of suppressing or banning both adults and minors from accessing speech that was obscene to minors.
Not only that, but justices also determined in previous rulings that the technological means to separate adults and minors online did not exist or were too limited, a fact that influenced those decisions. In Reno v. ACLU (1997), a case that examined the Communications Decency Act, Justice Sandra Day O’Connor acknowledged “the prospects for eventual zoning of the internet appear promising.”
Almost 30 years later, those prospects have come to fruition, with multiple means for successful and anonymous age verification in existence.
Since Ashcroft v. ACLU (2004), the last time the court weighed in on government efforts to shield children from online obscenity, parental use of filtering and blocking software has been treated as the default safeguard.
That solution, although helpful in instances, has proved to be woefully inadequate. Not every device a child can access has a filter in place, and filters are often under- or overinclusive.
HB 1181 does not include any sort of ban for adults. Instead, it requires them to provide proof of age, just as they are required to do for in-person purchases and adult-only experiences.
Although the court did not consider the specific age verification methods, HB 1181 would allow commercial age verification methods that use government-issued identification or public or private transactional data.
Advancements in artificial intelligence are improving anonymous options. For example, AI models can assess the physiological features of hand movements to accurately determine age.
Requiring adults to prove their age isn’t about fueling an enforcer’s power trip. It’s about protecting children from material that is wholly inappropriate for their age.
Not even the Free Speech Coalition claimed in oral arguments that pornography was suitable for children. In fact, it conceded that it was not.
For the record, 1 in 3 children are exposed to pornography by age 12, and nearly 90% of that content includes violence. That matters, because porn isn’t simply another form of media.
During adolescence, the second most critical period of brain development after early childhood, exposure to porn has been linked to depression, poor body image, behavioral problems, sexual aggression, and impaired relationships.
When 95% of teens have access to a smartphone, online pornography is literally at their fingertips. Just because adults may view pornography doesn’t mean they are precluded from any rules pertaining to how that right is exercised. The rule of age verification is necessary to shield children from adult-only material.
Justice Thomas wrote that “adults have no First Amendment right to avoid age verification.” The Supreme Court ensured that online age verification is here to stay. Now, it’s up to pornography websites to comply and the states to enforce.
The court established legal precedent clearing the way for the remaining 26 states and Congress to implement laws similar to HB 1181. The question is when they will act.
