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How Texas’ online porn law could shatter a First Amendment precedent

After the Supreme Court declined to issue a stay this week, 20 years of court rulings may be about to go out the window

Casey Newton

Casey Newton

— 8 min read
How Texas’ online porn law could shatter a First Amendment precedent
(Bill Clark / Getty Images)

Today let’s talk about a somewhat surprising decision at the Supreme Court that suggests a long-settled assumption about the First Amendment may be on the verge of getting upended.

Last year, Texas passed a law that attempts to make it more difficult — and less desirable — to look at porn online. H.B. 1181 requires platforms that offer sexually explicit content to verify that users are 18 or older, either by verifying users’ ages directly with government-issued IDs or paying a commercial vendor to do it for them. It also attempted to force porn sites to display a “health warning,” which stated without evidence that “Pornography increases the demand for prostitution, child exploitation, and child pornography.”

Amid growing concerns about child safety online, seven states have now joined Texas in passing similar age verification laws: Arkansas, Indiana, Mississippi, Montana, North Carolina, Utah, and Virginia. (Florida is likely to join them soon.) Last year the Free Speech Coalition, a trade group that represents adult performers, sued Texas in an effort to overturn the law. 

Until recently, there would have been good reason to assume that the trade group would succeed. Two decades ago, the Supreme Court overturned a previous effort to implement a very similar law. In Ashcroft v. ACLU, the court examined the Child Online Protection Act, which also sought to prevent minors from looking at porn. Like H.B. 1181, COPA required providers to verify users’ ages in the name of child safety.

In its ruling, the court found that there were less restrictive ways to limit children’s access to inappropriate material, such as by using filtering software. Moreover, forcing adults to verify their ages to access a website places an undue burden on their right to access constitutionally protected speech.

COPA was thrown out, and the precedent held for 20 years.

But now there is a conservative supermajority on the Supreme Court. And the U.S. Court of Appeals for the Fifth Circuit, which is notorious for issuing rulings too conservative even for the current Supreme Court, is barraging the court with a series of boundary-pushing First Amendment cases. 

In recent years, the Fifth Circuit upheld a law that seeks to make most content moderation illegal, and attempted to prevent the government from communicating with platforms about misinformation and public health issues. And last month, it upheld the age verification portion of Texas’ law. (It did throw out the mandatory “health warning,” which it found to be unconstitutional compelled speech.)

The Free Speech Coalition appealed the case to the Supreme Court, and asked for the law’s implementation while the appeal was considered. Given the strong precedent, it seemed likely that the court would intervene.

But that’s not what happened. On Tuesday, the Supreme Court let the law go into effect.

Here’s John Fritze at CNN:

The Supreme Court on Tuesday allowed Texas to enforce age-verification requirements for porn sites, rejecting a request from the adult entertainment industry to block the law on First Amendment grounds.

The Supreme Court offered no explanation for its decision Tuesday, common for decisions on its emergency docket. There were no noted dissents.

On one hand, it’s impossible to draw definitive conclusions from the court’s decision not to intervene. It could still choose to hear the Free Speech Coalition’s case, overturn the law, and uphold precedent.

At the same time, the case raised eyebrows among some First Amendment scholars.

“It’s a fuzzy signal, because they don’t give reasons,” said Evelyn Douek, an assistant professor at Stanford Law School, about the court’s silent action. “It doesn’t say anything about the merits of the case. … At the same time, it is still not a great sign, given how good the precedent is.” 

There is a broad consensus that it is too easy for minors to access adult material online — just as there is a broad consensus that it’s too easy for children to create accounts on TikTok, YouTube, and Instagram. It has always been easy for minors to lie about their age and access inappropriate content online. It still is.

At the same time, minors have also become an effective smokescreen for the fact that many conservative lawmakers don’t want adults to access porn, either. And asking would-be porn consumers to fork over their government IDs turns out to be an extremely effective way of driving them away. 

That’s why big platforms like Pornhub are exiting states entirely rather than implementing these schemes.

Even then, these laws likely have only a negligible effect on porn consumption. The reason is the glut of smaller, less scrupulous sites that fly under the radar of state legislatures — and often fail to remove scenes posted without participants’ consent, or those that involve minors. The overall effect is to punish the platforms (and creators) that actually do content moderation and observe state laws while redistributing porn traffic to the platforms that don’t.  

In the past, we might have relied on the Supreme Court to recognize the free speech issues at play — and to affirm its previous position that the speech rights of adults outweigh the potential harms to minors. But it’s not clear that we can do so any longer.

And if the Fifth Circuit succeeds in pushing those boundaries, expect to see more states asking you for an ID as you browse the internet. 

“We are in this moment of both legislatures and lower court judges pushing boundaries in a way we haven’t really seen in a long time,” Douek said. 

On the podcast this week: Listeners call in to tell us the wildest ways they're using AI at work. Then, YouTuber Hank Green stops by to tell us how he's thinking about the prospect of a TikTok ban. And finally, a crazy story about synthetic audio at a Maryland high school that illustrates how deepfakes have arrived on Main Street.

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