Should you have to prove your age before watching porn?

THOMAS JEFFERSON’S library was filled with books depicting “vivid scenes of sexuality, lust and sexual scandal”. So wrote the plaintiffs in the lead-up to Free Speech Coalition v Paxton, a case about online pornography heard by America’s Supreme Court on January 15th. The Free Speech Coalition, an adult-entertainment trade group, was keen to remind the justices that some founding fathers were anything but prudish. (Benjamin Franklin, it seems, also had a stash.)

At issue is a Texan law requiring any website on which more than one-third of content is “sexual” and “harmful to minors” to verify that viewers are at least 18. This means showing a government-issued ID or some other document that proves adulthood, such as a mortgage or employment record. The porn industry fears this will be hugely off-putting for customers, who might fear blackmail or identity theft if their data should get into the wrong hands.

Derek Shaffer, Free Speech Coalition’s lawyer, acknowledged Texas’s “compelling interest” in protecting children from online pornography. But he told the justices that Texas’s law infringes on adults’ freedom of speech. There’s a better way to shield minors, Mr Shaffer said. Parents should deploy content-filtering software.

Justice Amy Coney Barrett, a mother of seven, scoffed at this suggestion. With the bevy of devices that kids use today (“gaming systems, tablets, phones, computers”), it is difficult for parents to keep up, she said, adding that this was “from personal experience”. “Do you know a lot of parents who are more tech-savvy than their 15-year-old children?” Justice Samuel Alito asked, eliciting laughter in the courtroom. “Come on”, he told Mr Shaffer, “be real.”

The lawyers cited duelling precedents. The best case for Mr Shaffer, Ashcroft v American Civil Liberties Union (2004), struck down the Child Online Protection Act, a federal law that closely resembled Texas’s. Justice Sonia Sotomayor noted that the court would have to abandon Ashcroft and four other precedents subjecting age verification to the most exacting form of judicial review—“strict scrutiny”—if it sided with Texas.

But Texas’s solicitor-general, Aaron Nielson, relied on Ginsberg v New York, a decision from 1968 upholding a law that banned the sale of sexual material to children under 17. Paxton is just like Ginsberg, Mr Nielson insisted: it simply applies a rule governing bricks-and-mortar stores to digital porn peddlers.

The Fifth Circuit Court of Appeals cited Ginsberg when it blessed Texas’s law last year. But the vote was 2-1, and the dissenter, Judge Patrick Higginbotham, wrote that all “statutes that infringe upon adults’ constitutionally protected speech” must be evaluated under strict scrutiny rather than “rational-basis scrutiny”, the low bar the court applied—and New York’s law cleared—in Ginsberg. Several justices amplified Judge Higginbotham’s sentiment. Justice Sotomayor and Justice Ketanji Brown Jackson noted that Ginsberg had nothing to do with burdens on adults. It said only that children lack a First-Amendment right to buy pornographic magazines.

The hearing ended in a bit of a muddle. All the justices agree it is important to keep porn away from children. But most also seem to think that Texas’s law should have been held to a stricter standard that considers adults’ right to watch porn free from overly burdensome regulations. Most of the justices seem inclined to direct the lower court to have another look at the law under strict scrutiny. But in the end the law will probably survive.

Meanwhile, Texas and other red states have achieved their aims and more: Aylo, the parent company of several pornographic websites including Pornhub, the world’s largest, has yanked its operations from most of the 19 states that have age-verification laws, Texas included. “We don’t want minors accessing our site”, Pornhub’s message to jilted users reads, “but putting everybody’s privacy at risk won’t achieve that.” ■