Supreme Court justices bring personal experience to debate over blocking internet porn from kids
Evaluating the constitutionality of a Texas law requiring age verification for pornographic web sites, Supreme Court justices said content filtering doesn't work.
WASHINGTON – As the Supreme Court debated Wednesday how to protect young people from the unlimited amount of sexually explicit material online, one justice was quick to express her own frustration.
Justice Amy Coney Barrett, who has seven children, immediately took issue with the position that blocking or filtering content is a workable alternative to requiring pornographic websites to verify the age of users.
“Well, whoa, whoa, whoa.” Barrett said to the attorney representing the adult entertainment industry which is challenging Texas’ age verification law.
She said kids can get online porn through gaming systems, tablets, phones and computers.
“Content filtering for all those devices, I can say from personal experience, is difficult to keep up with,” she said. “I think that the explosion of addiction to online porn has shown that content filtering isn’t working.”
The court considered a similar issue two decades ago when it decided there were less onerous ways of limiting access to sexually explicit online content than requiring age verification.
But on Wednesday, Barrett was not the only justice who seemed to agree with Texas that age verification technology has become less burdensome while content filtering has proven to be ineffective.
“Do you know a lot of parents who are more tech savvy than their 15-year-old children,” Justice Samuel Alito asked Derek Shaffer, the attorney representing the adult entertainment industry and free speech advocates.
Shaffer said Texas and the eighteen other states that have backed similar efforts did so without giving content filtering a real chance.
Jumping right to age verification without promoting filtering, he argued, makes adults who have every right to view sexually explicit material vulnerable to personal identifiable information being hacked, leaked or inadvertently disclosed.
“You’re creating a permanent record on the internet,” he said, when explaining why it’s different from showing an ID to get into a strip club. “It is a target for hackers.”
Shaffer warned the justices about changing the standard for reviewing laws that affect protected speech, saying that could “open the door to an emerging wave of regulations and imperil free speech online.”
In 2004, the court used the toughest standard of review when determining that a federal law to protect children from online pornography was too onerous on adults’ right to view the material.
Barrett and other justices expressed concern Wednesday about watering down the standard for evaluating 1st Amendment cases if they side with Texas.
Brian Fletcher, an attorney for the Justice Department, told the justices they have room to maneuver without overturning their 2004 decision or opening the door too wide to more speech restrictions.
Age verification requirements for porn sites, he said, are trying to address the unique situation in which the speech is protected by the Constitution for adults, but not for children, and the government has a strong interest in preventing kids from accessing the sites.
Pressed on whether Texas’ age verification law meets that sweet spot, Fletcher said all the state laws have potential issues that courts need to test. For example, he said, their constitutionality could depend on what type of age verification methods are allowed.
Texas Solicitor General Aaron Nielson said his state’s law would pass the toughest 1st Amendment test, calling age verification “simple, safe, and common.”
“We've tried content filtering for decades,” Nielson said, “and the problem has only gotten worse.”