When does freedom for adults become cruelty to children?
The Supreme Court will hear arguments this week in a case, Free Speech Coalition v. Paxton, that raises exactly that question. The Free Speech Coalition (a pornography industry trade association) is challenging a 2023 Texas law that requires sites offering pornographic material to “use reasonable age verification methods” to check whether a user is at least 18.
According to the law, “reasonable” methods can include providing “digital identification” to the site or complying with a commercial age verification system.
At first glance, the law is simple common sense. As Texas noted, all 50 states bar minors from purchasing pornography. Offline, identification requirements are common. Showing a driver’s license to enter a strip club is routine. Zoning restrictions can push pornographic establishments out of neighborhoods and away from schools and other places where kids congregate.
Online, though, it is the Wild West. Children have easy access to graphic and hard-core pornography. There’s a certain difficulty in writing about this issue — merely describing what children see online can be too much for adults reading family newspapers to tolerate.
As one teenager wrote in The Free Press in 2023, in fourth grade she was exposed to “simulated incest, bestiality, extreme bondage, sex with unconscious women, gangbangs, sadomasochism and unthinkable physical violence.”
Children wouldn’t have a right to see such content even if there wasn’t demonstrable evidence that pornography consumption causes harm. But now that evidence exists.
Last year, Peggy Orenstein wrote in The Times about a “troubling trend” in teenage sex. Rough sex is becoming ubiquitous. In one survey, for example, almost two-thirds of women at a university in the Midwest said they’d been choked during sex, and 40 percent of those respondents said that their first experience of choking occurred when they were 12 to 17 years old.
As Orenstein noted, “Sexual strangulation, nearly always of women in heterosexual pornography, has long been a staple” on the free porn sites that teenagers often use as a form of sex ed.
Easy access is triggering porn addiction on a wide scale. In an amicus brief filed in the case, two scholars who’ve studied the neurological effects of pornography on the human brain argue, “The weight of medical evidence demonstrates pornography can become both addictive and compulsive,” and the effects of addiction “are most acute in developing adolescent brains.”
Pornography addiction, they argue, can produce “disproportional cue reactivity, a dampening effect on the ability to receive and process pleasure and structural changes to the brain itself.” Given the vulnerability of the adolescent brain, childhood is “the exact worse time for someone to be exposed to pornography.”
If all this is true, why aren’t online age verification measures just as ubiquitous as offline age restrictions? In 1996 — at the dawn of the internet era — Congress tried. The Communications Decency Act criminalized the “knowing” transmission of obscene or indecent material to minors online.
But in 1997 the Supreme Court unanimously struck down the age verification provisions of the law, and in 2004 it blocked enforcement of the Child Online Protection Act, Congress’s subsequent attempt to restrict kids’ access to porn. In both cases, the court worried that imposing age restrictions would excessively burden adults’ First Amendment rights to view pornography.
In 1997 the Supreme Court was concerned in part because of the primitive technology available to websites. “At the time of trial,” the court wrote, “existing technology did not include any effective method for a sender to prevent minors from obtaining access to its communications on the internet without also denying access to adults.”
In its 2004 decision, a closely divided court ruled that blocking and filtering technology would be at least as successful as the Child Online Protection Act in preventing minors’ access to pornography.
If the Supreme Court has rejected age verification on porn sites twice, why does the State of Texas believe it has a chance? Two things have changed in the past 21 years: our technology and our experience.
Age restrictions and age verification are far more technologically feasible than they were 21 years ago. A court opinion written at the internet’s infancy — and that reflects the embryonic state of the technology at the time — is a poor guide for a much more sophisticated online environment that is now replete with age limits (even if they are frequently breached — no system is foolproof) and secure transactions.
In addition, a generation’s worth of experience since 2004 shows us that blocking and filtering technology is laughably inadequate for addressing the problem. In 2004 there might have been reason to hope that giving parents the ability to put blocking software on their kids’ phones was sufficient. That argument has no merit today.
Another way of putting the argument is that the facts have changed. As a matter of fact, it is now much easier to set up age limits on websites, and we know that alternatives to age limits have been ineffective at combating early childhood exposure to online porn. Even with blocking software widely available, a 2022 study found that 54 percent of children 13 years or younger had viewed pornography. By age 17, that number shot up to 73 percent.
I do have a degree of sympathy for the free speech arguments against the Texas law. It’s true that efforts to restrict childhood access to pornographic websites cannot be so onerous as to essentially block adult access.
But age verification requirements are now common online, and they require minimal time and effort. Online age verification requires less time and effort than getting pornography offline, where adults often have to drive miles to the few areas zoned for pornographic establishments and present their identification in person.
In its brief, the Free Speech Coalition repeatedly refers to the purported perils of being required to produce identification, raising the possibility of identity theft and extortion in the “highly sensitive and personal context of accessing sexual material.”
But this argument cuts both ways. Yes, the porn industry is very dark. It is full of unscrupulous actors. My colleague Nick Kristof’s reporting on Pornhub, for example, is indispensable to understanding how vile the industry can be: Pornhub profited from horrific videos of child sexual abuse. It’s hard to imagine feeling confident handing over personally identifying information to an institution that depraved.
But in the presence of such darkness, the answer is not to keep it accessible to kids so that adults have better peace of mind about their pornography consumption. It is not unacceptable to ask adults to assume a certain risk of exposure — just as they do in the offline world. There is no right of anonymous access to strip clubs or pornographic bookstores.
There is a chance that the court could rule on the case without fully addressing the merits of the law. It could, for example, decide that the lower court applied the wrong legal test — the more relaxed rational basis review rather than strict scrutiny — and send it back to the lower courts with instructions to apply a different legal standard.
But the Texas law should satisfy even the strictest of legal tests. Not only do children have no constitutional right to view pornography; we have overwhelming evidence that a porn-saturated culture is harming childhood emotional and sexual development and increasing the dangers in sexual encounters.
Restricting kids’ access to online pornography shouldn’t be a matter of partisan controversy. And in Texas it wasn’t. House Bill 1181 passed 141 to 0 in the House (with two abstentions) and 31 to 0 in the Senate.
A generation of terrible experience with online porn has taught Americans across the political spectrum that age verification is necessary. Let’s hope that the third time before the Supreme Court is the charm.
