The Supreme Court of the United States is inclined to support age verification for access to porn | Society
The justices of the United States Supreme Court seem inclined to support that States can impose age verification requirements to access websites with pornographic content. The matter was debated this Friday in a hearing in which the employers of pornographic companies and other associations appealed a Texas law that imposes this verification on the grounds that it represented an attack on freedom of expression.
The judges also raised some concerns about the impact on free expression and may not immediately validate the law, but instead require lower courts to give a more rigorous examination of the constitutional requirements it imposes. The sentence of the case, Free Speech Coalition v. Paxton, It will not be known until June. A total of 19 states have passed similar laws as part of a conservative offensive against minors’ access to pornography.
The lines between free speech, pornography and obscenity have a long tradition in the United States Supreme Court. Faced with the difficulties in drawing the boundaries between sexual content and hard-core pornography, Judge Potter Stewart left a criterion for posterity in 1964: “I know it when I see it,” he wrote in a ruling, ruling out that the film The Lovers by Louis Malle should be censored. The latest precedents, from 1997 and 2002, supported that an excessive burden could not be imposed on adults to access content protected by freedom of expression, even with the aim of protecting minors.
This Wednesday’s hearing has not left any phrase for history like Stewart’s, but the judges’ ruling may deviate from their previous doctrine, not only because of how the composition of the Supreme Court has changed (it has a supermajority of six conservative judges versus to three progressives) but also by how the internet and technology have changed since those cases were examined. “We are in a completely different world,” said conservative Clarence Thomas. “Playboy was about blurred lines on cable television,” he added.
Several of the judges, especially the conservative ones, implied with their questions and interventions that they are in favor of states being able to legislate to prevent minors’ access to pornographic material. “Can age verification systems ever be considered constitutional?” Thomas asked Derek Shaffer, attorney for the appellants. Shaffer argued that judges do not need to close the door on that possibility, but that Texas law does not contain safeguards that protect the identity of users.
The debate centered on a ruling by the United States Court of Appeals for the Fifth Judicial Circuit. That ruling supported the application of the law. The legal question presented before the Supreme Court was whether the Texas law should be subject to the principle of “strict scrutiny,” because it affects the dissemination of content protected by freedom of expression, or whether a “rational basis review,” an examination, was sufficient. laxer than the one applied by the lower court.
Some judges suggested that it was appropriate to apply strict scrutiny, thereby formally ruling in favor of the appellants. With this principle, many laws are annulled, but the magistrates have expressed their impression that in this case the age verification requirement could withstand that level of demand. A possible solution, therefore, is to return the case to the Court of Appeals and for it to validate the law again with this new parameter.
The need to tread carefully to avoid excessive generalizations was also highlighted. “It seems to me that there are possible dangers of contagion in both directions,” said progressive Justice Elena Kagan. “One is the danger of spread that you relax strict scrutiny in one place and suddenly strict scrutiny is relaxed in other places. The other danger of contagion is that if a clearly content-based law is considered to not require strict scrutiny, suddenly more content-based restrictions start appearing that do not have to meet strict scrutiny,” he added.
Kagan argued that if states can regulate obscene material in brick-and-mortar stores and movie theaters in accordance with the Court’s current jurisprudence, there should be a way to translate that rule into the online world.
“There is a feeling here that the state should be able to protect minors from some of this,” conservative Judge Amy Coney Barrett told Derek Shaffer, the appellants’ attorney. Shaffer offered content filtering as an alternative. “The tradition on the Internet is to say that it will be free and that it is up to parents to filter inappropriate content for their children,” he said at the hearing. Content filtering “is now technologically better than ever, more readily available than ever,” he argued, noting that companies, for example, apply it in the workplace.
That alternative did not convince Barrett. “Children can get pornography online through gaming systems, tablets, phones, computers,” he told her. “In filtering content for all those different devices, I can say from personal experience that it’s hard to keep up. And I think that the explosion of online porn addiction has shown that content filtering does not work,” he argued. Judge Samuel Alito, also a conservative, indicated in this sense that any 15-year-old boy knows more about technology and the Internet and how to bypass filters than his parents. “There is a large body of evidence that filtering does not work. “We have had many years of experience with it,” he assured.
Shaffer noted that the law allows minors to access pornography through VPNs that pretend that the user is not in Texas and through social networks and search engines in which less than a third of the content is pornographic.
“Do you discuss the problem Texas has with children’s access to pornography?” conservative Justice Brett Kavanaugh asked Shaffer. “We didn’t discuss the underlying problem. We support efforts to resolve the problem as long as they are appropriately adapted,” the lawyer responded.
The law went into effect in September 2023. Pornhub and other organizations sued Texas, initially obtaining a court order that halted its enforcement that same month. However, the attorney general of this southern state, Ken Paxton, appealed to the United States Court of Appeals for the Fifth Circuit. He first obtained a stay of the court decision in November of that year, allowing him to enforce the rule. In March of last year, in a 78-page ruling, that same court partially annulled the original court order, ruling that the age verification criteria are constitutional.
To avoid fines, major pornography websites, including Pornhub, PornTube and YouPorn, have preferred to block users from states where such laws are in force, rather than investing in age verification systems or services. Very few have implemented the required verification system.
