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In the 2004 case Ashcroft v. American Civil Liberties Union, the Supreme Court struck down Congress’s Child Online Protection Act (COPA) for violating the First Amendment. COPA required providers of commercial pornography to place pornographic material behind internet “screens.” Adults could access the pornography by verifying their age, but children, presumably, would be prevented from viewing some of the most objectionable content on the internet. 

The Supreme Court sided with pornographers, who claimed that COPA restricted adult access to pornography in violation of the First Amendment. Although Congress and the states could curtail a minor’s access to pornography, the Court reasoned that COPA burdened adult access to porn. Applying strict scrutiny, the Court determined that age verification was unconstitutional because there was a less restrictive alternative, namely, content filtering.

Now twenty years later, with the smartphone social experiment well underway, the Supreme Court has a chance to redo its swing and miss in Ashcroft

Tomorrow, on January 15, the Court will hear oral arguments in Free Speech Coalition v. Paxton—the porn industry’s challenge to H.B. 1181, Texas’s age-verification law. Although the case only concerns Texas’s recent law, the Court’s decision will have far-reaching implications, as over a dozen states have passed similar legislation to counter the widespread harm to children caused by exposure to online pornography. Many of these harms are now well-documented and have received increased media attention in the last several years, even from notable celebrities such as Billie Eilish, Kanye West, Bill Maher, and others who have spoken out about how pornography exposure causes severe problems in children. These problems include addiction, mental health crises, exploitation, exposure to violent sexual content, degradation of women, intimacy problems including impotence, relationship challenges, and child-on-child sexual assaults.

H.B. 1181 has an impressive collection of supporters, including politicians, scholars, scientists, public interest groups, and religious leaders. But opposed to it is the nearly $100 billion porn industry, led by the Free Speech Coalition—the industry’s sympathetically named trade association.

Age verification laws will not solve the problem of child exposure to violent, degrading, dehumanizing, and plain disgusting online pornography. There’s simply too much content that’s too easily accessible. Indeed, since 2016, at least sixteen states have declared that pornography is a public health crisis. Nevertheless, a decision affirming the constitutionality of H.B. 1181 will set important precedent for three main reasons.

First, it will establish that protecting children from harmful pornographic content trumps whatever meager “right” an adult has to access online pornography. Since age verification laws do not overly burden adult access to pornographic content (it takes just a few seconds or minutes) and the speech at issue (harmful sexual material) is of low (or no) value, the legislation should pass constitutional muster.

Second, it will establish precedent for states currently attempting to limit minors’ access to addictive social media sites. Sure, the issues and harms are not identical. But the addictive qualities of pornography and social media, and the ensuing harms caused by both, are similar. Australia recently banned social media for those under sixteen years old.

Third, it could be another landmark originalist decision from the Roberts Court. The Court increasingly turns to “history and tradition” when interpreting the Constitution. People of goodwill can debate what the slender text of the Free-Speech Clause—“Congress shall make no law abridging the freedom of speech”—means, but it is hard to imagine that the founders would have deemed H.B. 1181 objectionable. Paraphrasing Justice John Paul Stevens in Young v. American Mini Theatres, Inc. (a case that upheld a Detroit ordinance banning pornographic businesses), few of us would march our sons and daughters off to war to preserve the citizen’s right to view the porn of his choice. 

The porn industry’s day of reckoning has come. It is time for the Supreme Court to protect children, reverse the poorly reasoned Ashcroft decision, and affirm the constitutionality of H.B. 1181. 

Jeffrey Wald writes from Winston-Salem, North Carolina.

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