SCOTUS Takes on Big Porn

Twenty-one years ago, five black-robed justices ruled that adults’ rights to effortlessly view hardcore pornography trumped children’s rights to a childhood. A boy born that summer is today buying his very first drink, handing over his ID to a bartender for inspection. And yet odds are he has already been watching porn for half of his life, just by tapping a button, “Yes, I’m over 18.” The average age of first porn exposure is ten or eleven, and once hooked, too few children can resist the compulsion to keep coming back for more violent and degrading content. 

We now know that porn, at least in its online form, is much more addictive than alcohol; as my friend Clare Morell, author of The Tech Exit, likes to say, “it is digital fentanyl.” And yet for decades we have allowed it to flourish online on a scale larger than Amazon or Netflix with virtually zero regulation, and most significantly, without any of the age-verification requirements that apply in the physical world. 

Today, the Supreme Court ruled in Free Speech Coalition, Inc. v. Paxton to uphold a Texas law requiring age verification for porn sites. Justice Clarence Thomas, whose vote with the majority in Ashcroft v. ACLU back in 2004 helped doom America’s youth to a generation of sexual exploitation, announced a return to sanity in no uncertain terms: “History, tradition, and precedent recognize that States have two distinct powers to address obscenity: They may proscribe outright speech that is obscene to the public at large, and they may prevent children from accessing speech that is obscene to children. . . . Adults have no First Amendment right to avoid age verification.” 

The old 2004 Ashcroft precedent was based on several faulty premises. The first was that access to commercial pornography was protected for adults under the First Amendment, rather than qualifying as one of the few categories of unprotected speech: obscenity. The majority of justices worried about creating a slippery slope toward censorship. As porn has grown ever more extreme in the years since, this judgment looks ever more foolish in retrospect; our society is simply at zero risk of careening into Mrs. Grundy prudery.

The second premise was a judgment of fact: that adults surfing the internet in the early 2000s expected total privacy and anonymity, and would be terrified at the thought of uploading any personally identifying information. An age-verification requirement, then, would impose a heavy “burden” on adult access. This may have been plausible a generation ago, but today, we take for granted that websites collect data on their users, and we routinely upload secure documents, credit card information, and even photo IDs online. Ironically, though, age verification today no longer requires any of that; thanks to machine learning, it can be done anonymously.

The third premise was mere technological speculation, which turned out to be catastrophically flawed. The justices reasoned that although it was certainly important to protect kids from exposure to pornography, this could be easily done through content filters and parental controls. This was plausible enough in an era where most children accessed the internet through a desktop in the living room, but times have certainly changed. As Justice Thomas observed in his Paxton opinion, “With the rise of the smartphone and instant streaming, many adolescents can now access vast libraries of video content—both benign and obscene—at almost any time and place, with an ease that would have been unimaginable” a generation ago. Even the liberal justices agreed that Texas had every right to try and protect kids from this content, differing only on the appropriate standard of scrutiny to apply.

The implications of this decision are potentially momentous, particularly given the broad scope of the majority opinion. By ruling that only “intermediate scrutiny” need apply, and that age verification laws should be evaluated on the straightforward logic of the “necessary and proper” clause, Justice Thomas knocked Big Tech’s best sword out of its hand. If the state has a right to protect children from obscene content (and no one denies it does), it has a right to use the most reasonable means to do so: age verification. For decades, tech lawyers have argued that since nearly everything online was “speech,” and speech was free under the First Amendment, almost any attempted tech regulation must clear the barrier of “strict scrutiny.” On this standard, no regulation can survive unless it can prove itself the “least restrictive means” imaginable. Justice Stephen Breyer mocked this reasoning in his stinging Ashcroft dissent, observing that “it is always less restrictive to do nothing than to do something,” but “do nothing” has indeed been the dominant legislative posture toward Big Porn and Big Tech for the past generation.

At last, that is changing. Today’s ruling clears the way for nearly two dozen state laws, many of them currently enjoined, to come into effect, and puts fresh wind in the sails of similar bills introduced in many more states and in Congress. More significantly, it energizes two broader national—and indeed global—movements. The first is a push to tighten the screws of law and public pressure on the shameless pornography industry, which has long flourished by avoiding polite conversation or common-sense regulation. The second is a campaign to wrest childhood from the grip of addictive technologies more broadly—social media, AI, and the infinite scroll of cyberspace. By treating online age verification as a straightforward constitutional tool for the state to accomplish its lawful ends of protecting children, the Paxton decision opens the door to construct a new architecture for the digital world.