Age-Gating Access To Online Porn Is Unconstitutional
from the we've-done-this-already dept
Texas is one of eight states that have enacted laws that force adults to prove their age before accessing porn sites. Soon it will try to persuade the Supreme Court that its law doesn’t violate the First Amendment.
Good luck with that.
These laws are unconstitutional: They deny adults the well-established right to access constitutionally protected speech.
Texas’ H.B. 1181 forces any website made up of one-third or more adult content to verify every visitor’s age. Some adult sites have responded to the law by shutting down their services in Texas. The Free Speech Coalition challenged the law on First Amendment grounds, arguing that mandatory age verification does more than keep minors away from porn — the law nannies adults as well, barring them from constitutionally protected speech.
The district court agreed with the challengers. Laws regulating speech because of its content (i.e., because it is sexually explicit) are presumed invalid. Under strict scrutiny, the state must show that its regulation is narrowly tailored to serve a compelling government interest. In other words, the government needs an exceptionally good reason to regulate, and it can’t regulate more speech than necessary.
The case will turn on what level of scrutiny applies. Protecting minors from obscene speech is a permissible state interest, as the Fifth Circuit court established when it applied the lowest form of scrutiny — rational basis review — to uphold the law. But not all speech that is obscene to minors is obscene to adults. Judge Higginbotham, dissenting from the Fifth Circuit’s decision, pointed out that kids might have no right to watch certain scenes from Game of Thrones — but adults do.
In previous cases regulating minors’ access to explicit content, the Supreme Court applied strict scrutiny specifically because the laws restricted adult access to protected speech. Texas hopes to get around decades of precedent by arguing that there is no way that age verification “could reasonably chill adults’ willingness” to visit porn sites. If adults don’t care about age verification, Texas reasons, nothing in the law stops them from viewing sexually explicit material: No protected speech is regulated.
There’s just one problem: Adults do care about age verification.
H.B. 1181 bars age verification providers from retaining “identifying” information. But nothing in the law stops providers from sharing that same info, and people are rightly concerned about whether their private sexual desires will stay private. That you visited an adult site is bad enough. Getting your personal Pornhub search history leaked along with your government ID is enough to make even the most shameless person consider changing their name and becoming a hermit.
Texas swears up and down that age verification tech is secure, but that doesn’t inspire confidence in anyone following cybersecurity news. Malware is out there. Data leaks happen.
A bored employee glancing at your driver’s license as you walk into the sex shop is not the same thing as submitting to a biometric face scan and algorithmic ID verification, by order of the government, before you can press play on a dirty video. Just thinking about it kills the mood, which may be part of the point.
Texas pretends there’s no difference between the bored bouncer and biometric scans, but if you knew the bouncer had an encyclopedic, inhuman ability to remember every name and face that came through the door and loose lips, well, you wouldn’t go there either.
Hand-waving away these differences is the kind of thing you only do if you’re highly ideologically motivated. But normal people are very reasonably concerned about whether their personal sexual preferences will be leaked to their boss, mother-in-law, or fellow citizens. Mandatory age verification turns people off of viewing porn entirely, and it chills their free expression.
Sexual preferences are private and sensitive; they’re exactly the type of thing you don’t want leaking. So, of course, sexual content is a particularly juicy target for would-be hackers and extortionists. People pay handsomely to keep “sextortion” quiet. If you’re worried about your privacy and you don’t trust the age verification software (you shouldn’t), you’re likely to avoid the risk up front. One adult site says only 6% of visitors go through age verification and that even fewer succeed. Thus the chilling effect: even though adult access to porn is technically legal, people are so afraid of having their ID and last watched video plastered across the internet that they stop watching in the first place.
If the Supreme Court recognizes this and applies strict scrutiny, it will ask whether less restrictive means could protect minors. Back in 2004, the Court tossed out COPA, a law requiring credit card verification to access sexually explicit materials, reasoning that blocking and filtering software would protect minors without burdening adult speech. Today’s filtering software is far more effective than what was available twenty years ago — as the district court found — and, notably, filtering software doesn’t scan adults’ faces.
Sex — a “subject of absorbing interest to mankind,” as one justice once put it — matters. Adults have the right to sexually explicit speech, free of the fear that their identifying information will be leaked or sent to the state. Texas can and should seek to protect kids without stoking that fear.
Santana Boulton is a legal fellow at TechFreedom and a Young Voices contributor. Her commentary has appeared in TechDirt. Follow her on X: @santanaboulton.
Filed Under: 1st amendment, age gating, age verification, free speech, ken paxton, porn, strict scrutiny, supreme court, texas
Companies: free speech coalition
Comments on “Age-Gating Access To Online Porn Is Unconstitutional”
Of course there’s also the question of what does the age verification provider, or the content provider, do when the government accuses them of not having checked ages correctly and claims that someone under-age was allowed access. The government isn’t obliged to accept the provider’s word for it, they can and will demand proof that the provider did check and that the claimed person’s documents showed that they were of age. How do the providers do that without keeping a copy of the documentation that they’re supposedly not allowed to keep? Every adult out there realizes this, which is why no sensible adult believes their documentation won’t be kept on file.
Re: Record Keeping
Neither regulators or judges can demand to see specific, individual evidence of an age check where a law makes it illegal to retain that evidence. To do so would be patently absurd, and not survive the legal process.
A site can instead defend itself by demonstrating it has deployed good quality age assurance. For example, it may show certification from IEEE against their standard P2089.1 or BSI’s PAS 1296:2018, or independent test results which yield a particular level of assurance. Given individual evidence would be illegal, this will clearly be sufficient in the eyes of the courts.
Re: Re: but
you need to sign into the site each time, means they have to keep name and Passwords, then a data link to the computer to verify that Only that computer and That person has access.
Or
Are you thinking that you will be allowed to change your Name?
OR, you give each family at least 2 computers. 1 for children and 1 for adults.
Oh don’t worry, with the current makeup of the supreme court they’ll screw over our first amendment rights to push their religious views onto the rest of us.
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They been good on Internet laws so far.
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Relatively speaking, anyways.
Age verification isn't a solvable problem
Not in the real world, anyway. The issue is that the data that has to be acquired to make it function is incredibly valuable, and attacker know that…so they’ll be willing to spend a lot of money, time, risk, etc. trying to acquire it. And I don’t just mean technical attacks: they’ll try bribes and threats, intimidation and extortion, and whatever else they can come up with because the potential payoff is worth it.
Can operations be built which will have a fighting chance of withstanding this sort of thing? Yes. They’re called things like “NSA” and “CIA”, and we’ve seen, “fighting chance” doesn’t mean any more than that: it’s not a guarantee. But this requires all kinds of things (including an enormous budget) that are completely out of reach for an age verification service. Given the real world constraints on such a service, there is no way that it can be operated securely.
I’ll bet that the first one that’s set up is compromised before it goes live.
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Given how monumentally valuable such information would be to blackmailers and other criminals it strikes me that it would probably not be dishonest or hyperbolic to frame anyone who tries to get such laws in place as actively working to benefit blackmailers.
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The reverse, really: It’s solvable in the physical world but not digitally. The Least Bad solution is for sites and services to return metadata so that real-world devices (purchased and observed by real-world parents) can throw up a parental-lock screen.
It’s not perfect, but it avoids a giant screwy panopticon and Age Police, and fairly puts most of the implementation-costs down onto the same people who are insisting something be implemented.
Apply the 'You First' test and a lot of this goes away...
If any time a politician and/or ‘concerned group of serious adults’ tried to introduce a privacy violating law they were legally required to provide a full and comprehensive record of their online activity over the past year I suspect that a whole lot less of these laws would even be suggested.
More people need to see articles like these.
The supreme court of 2024
I almost guarantee that if this issue goes to the Supreme Court, the issue will be treated like abortion:
1. Since rhe constitutionality of porn age verification isn’t mentioned in the constitution, it isn’t covered by any rights.
2. And since porn isn’t mentioned in the constitution, the states shou)ld feel free to make their own laws.
So then we’ll have 50 laws about whether it’s legal for sites to demand age verification.
And of course, the issue of what’s considered porn still won’t be addressed.
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i think the comment you’re saying is calling doubting
Re: 50 state laws
None of which will apply in Canada, where one of the biggest porn hubs is located.
Also the 50 state laws are unlikely to apply in other countries, many of which are places that we would prefer that U.S. persons avoid. Imagine, then, if Russia or Red China decided to go into the web hosting business for content which was problematic stateside. Five years later, many politicians could receive some sort of communications from abroad, suggesting how they should vote on certain issues.
Or, even absent corrupt intent, imagine the outflow of money: U.S. data centers are less usable due to the government regulation, so porn and lots of other stuff winds up going abroad.
Not seeing any up-side here.
Re: Re:
Most correct
Since you are in Canada, American laws do not apply to you. You only have to comply with Canadian laws.
This is why pirate IPTV sites in odd places around the world are harder to shut down. Despite the felony streaming law passed in 2020, American laws do not apply to them.
With Idaho’s book ban on some titles, I expect Anna’s Archive to get a lot more customers from Idaho. Since they are not in the United States, they do not follow Idaho law, or any laws in the United States.
As far as privacy, use Tor browser. Tor blocks trackers aod does not leave any “browser fingerprint”, so you cannot be tracked or traced and even more untraceable if you use VPN on top of it.
Because some of my posts have likely attracted the attention of the Feds I do that. VPN and Tor Browser makes you untraceable when combined.
Tor browser blocks trackers and leaves no browser fingerprint.
If you want to avoid age=gate and not get caught, Tor Browser, combined with VPN, is the way to go.
In simple words, you visit a porn site, and the law wants you to be exposed publicly about that you visit such a site.
Therefore, private viewing of x-rated content is illegal. Makes me wonder if this could lead to a cobra effect where users try to find ways to fake their IDs, account sharing, etc. to access porn without giving up their sensitive info.
Age verification is identity verification. It is the thing you see in airports, job applications, government services, etc. It is in only a few places for very good reason, and that reason is to minimize the impact should a data leak occurs. If a website does not have age verification, and a data leak occurs, no private personal information gets released.
Re:
That…is not true. There’s lots of other kinds of personal information (credit cards, SSNs, driving habits, geolocation data, financial info, accounts and passwords, etc.) that can also be released.
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Re: Re:
You can keep your driving habits from being exposed by using a jammer to jam the communications of the “tattle tale” device
Such jamming is 100 percent legal in 49 states, but maybe not such in Texas
Turns out that one PD in Texas was using remote controlled spike stris, using a remote control just like your key fob or garage door opeener
When they finally caught one guy they found that his jammer kept remote controls activating spike strips, and he was charged under Texas law for having an “instrument of crime”
While he could be charged under Texas law for jamming the 315 frequency that thing spike strip remotes, key fobs, and garage door openners, that guy was not violating federal laws.
He was breaking Texas state laws, but his jammer did not violate any federal laws. Jamming those 315 Mhx frequecies does not break federal laws, but does break Texas laws.
The same would apply for jamming a cop’s ERAD device. Such a a jammer would not break federal laws, but would break Texas law for using an “instrument of crime”.
Jamming, per se, is it illegal in Texas, but if you do it, say, to jam the remote controls on spike strips, than you can be charged for using an “instrument of crime” under Texas law.
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Republicans will not prevent our access to children.
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This again?
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Strawmen presented by trolls are unconvincing.
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You must be looking to abuse them then. Abuse is the only contact Republicans enable with children.
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Filtering
“Today’s filtering software is far more effective than what was available twenty years ago”
This claim is at odds with the fact that children are seeing far pornographic content, across far more devices, than ever before. The experience of relying on filtering for the past 20 years has been its abject failure. It is clearly not fit-for-purpose.
The Supreme Court has already set the precedent that obscene content is an exception to the First Amendment which states have the right to regulate to protect children from exposure, just as they protect kids from alcohol, gambling or cigarettes. And as with every other age-restricted product, service or venue, it is always adults who have to prove their age to enable these requirements to be enforced.
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Re:
clown shoes have been added to your inventory
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Re:
welcome to clown school where trolls like you end up at
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also thanks for confirming that your from that scum website
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Actually, the phrase “appeals to the prurient interest” is limited to appeals to a “shameful or morbid interest in sex.” If the porn appeals to a healthy interest in sex, then it’s not obscene by definition and is thus protected by the First Amendment.
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Re: Re:
just flag them there the av people again spewing bullshit as usual
Re:
You don’t get to track my porn habits, you creepy fucking weirdo. No matter how much you insist it’s for the children.
Re: your english is strange
So,
you are of the mind to TAKE AWAY the rights of the parents?
To regulate and control what a child see’s?
WHO is supposed to be responsible for Their OWN children? NOT YOU, NOT THE GOV, NOT THE STATE.
Parents have to learn HOW to lock down a computer.
Re:
Not really, both can be true at the same time.
Filtering software is better, but the real barrier used to be sites demanding payment rather than advertising models. Plus most kids couldn’t drag the family desktop into their bedroom, etc.
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It actually isn’t. It could also be attributed to the fact that children have access to unfiltered access to the internet across far more devices than ever before. It doesn’t say anything about the effectiveness of those filters in the first place.
That doesn’t mean it hasn’t improved. The issue is that it is impossible to do well. And age-verification is no better.
The SC has also set the precedent that requiring age-verification cannot be used to do that. And the exception for obscene content is completely different from the allowance for age restrictions of pornographic content in physical bookstores and such. “Obscene” means it’s unacceptable even for adults. Not all porn is considered “obscene”.
Setting aside the fact that minors circumvent them all the time, those don’t require any verification of the IDs against a database or something. Doing it digitally is a very different beast.
But unlike them, this would involve sending them personally identifying information in a way that you cannot prevent them from storing or know that they haven’t stored it. There’s also far less social stigma for an adult who drinks, smokes, or gambles sometimes than an adult who watches porn.
think of the furniture
Texas just wants to make sure you can’t see the videos of JD Vance humping poor defenseless couches.
Of course JD Vance would never do such a thing, but the guy is weird so…?
What? Not that doesn’t actually make sense. You hand wave away those differences if you are some combination of: too stupid to understand the counter arguments, too stubborn/indifferent to care about other peoples and their arguments, or lying.
The hand-waving has nothing to do with ideology. In my humble opinion the hand-waving is an attempt to deceive people about their ideology (probably a value of totalitarianism). As a counter example, they could have kept their ideology (or at least those that I’m guessing they have), and dropped the hand-waving by simply being honest, and saying “No, we believe the govnerment, or maybe just us, should have more(or total) control of peoples sex lives, so your objections are worthless”.
I suppose it’s possible they are hand waving for some of the other possible reasons I listed… but given it’s Texas, I think it’s the lying.
I do not want the government taking over my parental duties.
Re:
Too late, so sorry.
If not now, soon they’ll find a way to change the definition of the amendments that gets they exactly what they want. And the peons will cheer while it happens because they need to protect the children so badly.
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nice spelling
Re: Re:
Are you talking about the they/them, which is an obvious typo? There’s nothing wrong with any of the spelling in that post.
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Pessimism doesn’t change the trajectory of anything.
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Re: Re:
idk why people resort to pessimistism it helps no one
Re: Re: Re:
Yeah. Better to just pretend the fascists are acting in good faith. That will work out for everyone 🙄
Re: Re: Re:2
Nobody’s pretending they’re acting in good faith lol
Acting like they’ve already won and there’s no point in trying to counter them doesn’t help.
Re: Re: Re:3
If you’re intentionally not looking at the avenues they’re going to use to try to seize control, then pretending is exactly what you’re doing.
Re: Re: Re:4
I’ve been struggling with anxiety for the last year or so because I’ve been looking at developements like these, bugger off with that.
Available Data?
Seems like this data must now exist — compare average daily views (or whatever) before and after the law was in force. Since accounts are free and nearly instantaneous to set up, any drop in usage must have come from adults “caring” about verification.
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Re:
clown license has been added to your inventory
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Re: Re:
Good to see you’re still basically just a drunk swinging a broken bottle in random directions.
Re: Re: Re:
all random acs tend to be drunk
Re: Re: Re:2
I wouldn’t actually have classified you as a random AC, since you post under a user name and all. But thanks for doing that; it’s insulting to be associated with the likes of you.
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Is that a deliberate strawman, or a failure of reading-comprehension?
No, these are not the same:
china
Worry more about project 2025 where they wBt to ban all porn, even Playboy
The folks at the heritage foundation have likely never heard of parking a computer in a home abroad and using an encrypted relay
Rich people will be able to do that and there nothing the government can do about it
With China and it’s Great Firewall there are enough millionaitea and billions that can do that
The chap from China who bought an office building in LA could put a computer there with an encrypted relay and circumvent the Great Firewall back home
I live in Virginia where they drove out pornhub. It’s very orwellian.
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I think it's reasonable
Why Children Should Not Be Exposed to Pornographic Material
Children are in a stage of rapid growth and development, both physically and mentally. Protecting them from being exposed to pornographic content is of utmost importance.
First and foremost, it can have a serious negative impact on a child’s psychological development. Their minds are still innocent and impressionable. Viewing pornographic films can distort their understanding of relationships, sex, and human interaction. It may lead to confusion, anxiety, and early development of inappropriate sexual awareness. For example, a child might start having questions or thoughts that are far beyond their age-appropriate cognitive level, which can disrupt their normal learning and socialization process.
Moreover, it can affect their values and moral concepts. At a young age, children are building their value systems. Exposure to such adult and explicit content can lead them astray from the right path of understanding what is good and proper behavior. They may start imitating what they see without realizing the consequences, which could result in behavioral problems and a lack of respect for boundaries and ethics.
Physically, it might also have some indirect consequences. The stress and confusion caused by seeing pornographic material can lead to changes in a child’s mood and behavior, such as becoming withdrawn or overly curious in an inappropriate way. This could potentially affect their sleep patterns, appetite, and overall well-being.
In addition, from a social perspective, it can isolate children from their peers. If a child has seen pornographic content and shares this information or behaves differently because of it, it could make them stand out in an uncomfortable way among their friends. This might lead to difficulties in forming healthy friendships and fitting into social groups.
Parents, schools, and society as a whole have a responsibility to ensure that children are shielded from pornographic films. (www.abedi.org)This includes implementing strict parental controls on electronic devices, providing proper sex education at an appropriate age in a scientific and healthy way, and creating a safe and clean media and social environment. Only by doing so can we safeguard the healthy growth of our children and ensure they have a bright and positive future.