SCOTUS UPDATE: The Supreme Court Protected Families in Paxton v. Free Speech Coalition
The fight to protect minors from online pornography has finally gained traction after decades of setbacks.
By Roan Fair
EiC’s Note: This is the second article in our new SCOTUS Update miniseries. Roan Fair aims to unpack some of the important decisions from the Supreme Court’s 24-25 term. In this article, he tackles protections designed to guard children from pornography.
Attempts at Restriction
As the internet rapidly developed in the 90s, the U.S. Congress and state governments alike sought to protect minors from accessing the growing number of sites offering adult films and content. Congress passed legislation in 1996 and again in 1998 that targeted the ability of minors to access adult content and imposed penalties on the websites marketing marketed child pornography. Both legislative actions were challenged by the Free Speech Coalition, which claimed the restrictions were overly broad.
Shocking to many conservatives, in Ashcroft v. Free Speech Coalition I & II, the Supreme Court struck down both legislative acts because they placed “an overbroad and vague” burden on free speech. Congress responded by passing new legislation which attempted to narrow the legislation, but free speech challenges prevented the access restrictions of minors.
Age Verification Laws
Ever since the Court’s decision in Ashcroft family-minded conservatives have sought a way to narrowly restrict the access of minors to pornography without opening the door to overly burdensome restrictions on adults. In 2023, several states passed legislation which required adult websites to verify the age of its users. Louisiana was the first of 23 states to pass such a law and served as the model for the legislation.
Louisiana HB 142 Makes commercial websites where more than one-third of their content is pornographic liable to being sued for damages by individuals unless age verification using (1) digital ID card or (2) government-issued ID or (2) a commercial reasonable method based on transaction data (e.g. mortgage, education, employment)
Proponents of age verification laws defend the legislation as only inhibiting the use of minors who do not meet the age requirement to access the content. This legislation further places the burden on the websites to “reasonably verify” the age of its users in the same way an online store or government website must verify identification.
Paxton v. Free Speech Coalition
Before these laws were to take effect, the Free Speech Coalition challenged the Texas law, Texas HB 1181, as an unconstitutional burden on free speech. Paxton v. Free Speech Coalition was heard by the Supreme Court this past December to determine whether age verification laws truly placed an undo burden on adults who wished to view pornographic content.
In June, the Supreme Court ruled 6-3 to uphold the reasonable verification requirement. This decision was a major win for lawmakers who are seeking to protect children from the harms of accessing obscene materials. After winning at the Supreme Court, Texas HB 1181 and the 22 similar laws quickly took effect. Websites which do not comply with the age verification requirement can be fined up to $10,000 a day.
Backlash
As these websites begin to comply with age verification, dissenters raise two primary objections. Opponents to HB 1181 and similar legislation are concerned with loss of anonymity and privacy. Reasonable age verification requires verifying a drivers license through a third party which many fear is accessible to hackers. Additionally, the increasing use of VPNs pose a possible hindrance to these restrictions. VPNs can alter the perceived location of an internet user and are championed by critics as a potential work around.
Moving Forward
The win in Paxton is a huge step forward for pro-family advocates. The unlimited access to pornographic materials has harmed minors for over 20 years has finally been tightened. Religious conservatives should channel their efforts to pass these laws in every state to protect he health and welfare of children. While the government must not be able to unfairly restrict internet access, adult websites should have the same responsibilities of protecting minors as physical distributors of such materials.
About the Author
Roan Fair is a History and Political Science double major at Grove City College. On campus, he is the Senior Articles Editor for the Grove City College Journal of Law and Public Policy. He also serves as a student executive for the BEST Robotics Competition, a high school program hosted by the college and is the Vice President for the college’s Federalist Society chapter. Additionally, Roan serves as a TA for Dr. Verbois in the political science department. His interests include early American history, political theory, and the legal field. Finally, after graduation, Roan plans on attending law school and pursuing a career in private practice.
READ MORE BY ROAN FAIR: Understanding the Appeals Process
Disclaimer: The views and opinions expressed are those of the writer alone and do not necessarily reflect the official policy or position of Grove City College, the Institute for Faith and Freedom, or their affiliates.
Cover Image: Photo by Charlein Gracia on Unsplash (Cropped).