Supreme Court takes up how to keep kids from lewd content without limiting adults' rights
Free speech advocates who oppose age verification requirements say adult content is often 'the canary in the coal mine for free speech.'
WASHINGTON − In the two decades since the Supreme Court blocked federal efforts to protect children from online pornography, American kids' access to the internet has exploded and concerns about the accessibility of porn have only grown.
Nineteen states in the past few years have tried to require sexually explicit websites to verify users’ ages before allowing access.
The high court on Wednesday will consider a challenge to one of those laws: Texas’ requirement that websites verify users are 18 or over if at least one-third of the site’s content is sexual material considered harmful to minors.
Free speech advocates and a trade group representing the adult entertainment industry say requiring users to upload a government ID or use another approved method to verify age runs afoul of the First Amendment. People have legitimate privacy concerns about inadvertent disclosures, leaks or hacks of their personal information, they argue.
“Forcing adults to share personal and identifying information before they can access protected expression will, obviously, make people think twice before accessing websites and material that they have every right to access,” said Vera Eidelman, an attorney with the American Civil Liberties Union.
And while the risks of online identity theft and misuse of data have increased since the Supreme Court last weighed in on the question, technology that lets parents block what their children see online has improved, the groups challenging Texas’ law told the court in legal filings.
Texas says it’s the other way around: age verification technology has gotten better while content-filtering software has failed to prevent a “public health crisis” caused by children's access to an “avalanche of misogynistic and often violent smut.”
If the Supreme Court can’t keep Texas’ law alive without overturning its 2004 decision, then that ruling should be wiped out, Texas Attorney General Ken Paxton said in a filing.
“The world has changed,” Paxton wrote.
Justice Department: Age verification might be allowed
The Justice Department, which will get to make its own argument on Wednesday, has a more nuanced position.
Noting that federal lawmakers have introduced legislation to address similar concerns, the Justice Department said the Supreme Court should make clear that the First Amendment doesn’t prevent “appropriately tailored age-verification laws.” Such laws should be tested by lower courts that can take a close look at age verification methods, as well as possible alternatives, the department said.
The first judge to review this law – a federal judge in Texas – blocked enforcement, saying it probably wouldn’t survive a constitutional challenge because the age verification requirement is so similar to the federal law the Supreme Court said in 2004 was too oppressive for adults.
The 5th Circuit Court of Appeals reversed that decision and allowed the law to take effect in 2023.
The appeals court relied on a 1968 Supreme Court ruling that a state can limit minors’ access to sexually explicit material – in that case, “girlie” magazines.
But while that decision − Ginsberg v. New York − focused on the rights of minors, the court’s 2004 decision – Ashcroft v. ACLU – turned on whether adults’ rights were trampled in the process of protecting minors.
Texas: Content filtering doesn't work
When the court issued the 2004 decision, the Justice Department said, high-speed internet, social media and smartphones were all in their infancy. The focus was on minors accessing the internet on computers in homes, schools and libraries.
Today, children can spend hours online every day through their smartphones and other devices.
Content filtering and blocking is not a realistic alternative to age verification, Texas argues, because it can’t be consistently applied “given the ubiquity of internet-enabled computers, tablets, phones, watches and even eyeglasses.”
The challengers say Texas hasn’t given content filtering, or any other alternative, a chance.
“If Texas had devoted just some of the resources it spent condemning pornography to instead promoting content filtering, it could have equipped parents with a tool far better than age verification for keeping sexual content away from kids,” they said in a filing.
Porn is the 'canary in the coal mine' for free speech
Michael R. Dimino, a professor at Widener University Commonwealth Law School, said age verification requirements can impose “quite a restriction” on adults’ ability to access material.
“And the fact that this law may be trying to achieve some kind of benefit to minors may overall have the objective of keeping minors away from this material that is harmful as to them, I don't think is going to carry the day, at least if there are any other sort of ways of protecting minors that are more narrowly tailored,” Dimino said in a Federalist Society preview of the case. "And there seem to be."
Eidelman, the ACLU attorney, said the case is fundamentally about how governments can treat speech it doesn’t like.
“And pornography,” she said, “is often the canary in the coal mine for free speech.”