The Supreme Court Brings Real-World Limits to the Virtual World

A dults in America accept limits every day on their access to certain products or activities for the sake of protecting children. They must verify their age to purchase alcohol or tobacco. They must go through a process of proving their identity and meeting certain licensing requirements in order to own and operate a firearm or drive a car.

Balancing adults’ rights and the government’s compelling interest in protecting children from harm means that as adults we live with certain trade-offs, especially in areas where it is critical to restrict children from accessing certain substances or technologies that are too powerful for their developing brains and bodies.

Yet despite widespread acceptance of such limits in the real world, we have struggled to implement similar trade-offs in the virtual world. As a result, the virtual world has been a Wild West for our children — there is almost no corner of the internet, including those filled with sexual, dangerous, and harmful content, that is effectively off limits to children.

This gap between the real and virtual worlds, however, may finally be starting to close due to the final decision of the Supreme Court’s term in the case Free Speech Coalition v. Paxton, where it ruled 6–3 to uphold Texas’s law (HB 1181) that age-restricts pornography websites to adults as constitutional.

In the opinion written by Justice Thomas, the Court states that “because H. B. 1181 simply requires proof of age to access content that is obscene to minors, it does not directly regulate adults’ protected speech” and that “adults have no First Amendment right to avoid age verification.”

Rather, “requiring proof of age is an ordinary and appropriate means of enforcing an age-based limit on obscenity to minors. Age verification is common when laws draw age-based lines, e.g., obtaining alcohol, a firearm, or a driver’s license. Obscenity is no exception.”

In the real world, a child can’t buy porn from a convenience store, but until now in the virtual world, a child could click through to PornHub from inside an app like Snapchat in just five clicks. No need to show ID, and a parent would never know. But this is the arrangement the porn industry wants.

Hiding behind the name “Free Speech Coalition,” the porn websites argued before the Court in January that age-verification laws like Texas’s violate privacy and speech for adults. The solution they offered instead? Content filters. They said filters empower parents with better tailoring to control what kids are seeing and accessing, and also claimed that “filtering software has only improved” since Ashcroft, the 2004 age-verification case in which the Supreme Court found that filters were a “less restrictive means” to protect children from online pornography. The porn companies, however, gave zero evidence to support this argument of improved filtering effectiveness.

And content filters have not, in fact, protected children from online pornography. As I noted in my amicus brief, filters are so inadequate that one study estimated that caregivers’ use of content filters only reduced by 0.5 percent — one in 200 — the chance that a child would encounter online sexual material.

Given all the evidence to the contrary, the Court did not buy their arguments. The Court’s opinion captures the reality of the internet for parents today that, “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.”

The truth is the porn industry does not want to accept any accountability for protecting children; instead they want all the burden to be on the end users of the internet, rather than cutting access off at the source. But consider applying this to the real world: It’s not on parents to run around and keep every store in town from selling cigarettes, alcohol, or pornography magazines to their kids; it’s on the sellers to restrict their access. Like the real world, it should be on the pornography websites themselves to restrict access for minors. And the Court’s opinion now will make it so.

It is worth noting that we have not reached this kind of arrangement when it comes to our Second Amendment rights and gun control. Rather, adults have accepted costs and limits on their freedoms, like ID requirements and licensing requirements to purchase a firearm, for the sake of protecting children and the common good. Why should it be any different when it comes to their First Amendment rights?

In fact, the opinion notes that “the need for age verification online is even greater [than in the real world]. Unlike a store clerk, a website operator cannot look at its visitors and estimate their ages. Without a requirement to submit proof of age, even clearly underage minors would be able to access sexual content undetected.”

With today’s technologies, it is difficult to imagine a more minimal cost arrangement to adults for protecting kids from pornography than online age verification. Websites can now verify or accurately estimate that a user is at least age 18 without revealing any other identifying information. Newer age-verification methods — like zero-knowledge proofs (“ZKPs”), which are now widely used in cryptocurrency — don’t store sensitive personal data when verifying a user’s age.

The costs of age verification today to adult speech and privacy are thus extremely minimal, orders of magnitude less than the process of acquiring a firearm. Age-verification laws like Texas’s HB 1181 offer a completely reasonable trade-off for adults to live with, one that still allows them to access protected speech, but also effectively keeps children from accessing it. It is worth noting the law does nothing to restrict this kind of content. The law merely puts a small hurdle for adults to easily jump over to enter these websites, but a hurdle that effectively keeps kids out.

The Court’s ruling critically helps bring the legal regime governing the virtual world into alignment with the regime governing the real world by upholding age verification for pornography websites as a common-sense solution that balances protecting adult speech and protecting the brains of America’s children.