In recent years, state governments have regulated pornography according to a notion of absolute freedom of speech. In a 6-3 decision on Free Speech Coalition, Inc. v. Paxton, the Supreme Court ruled against this misunderstanding.
Namely, the court upheld Texas House Bill 1181, requiring that websites with sexually explicit content verify their visitors’ ages. The Texas law requires that a website conduct age verification “when more than one-third of [its content] is sexual material harmful to minors.”
The law defines harmful sexual material under three conditions, as laid out by Justice Clarence Thomas: “(1) ‘is designed to appeal to or pander to the prurient interest’ when taken ‘as a whole and with respect to minors’; (2) describes, displays, or depicts ‘in a manner patently offensive with respect to minors’ various sex acts and portions of the human anatomy; and (3) ‘lacks serious literary, artistic, political, or scientific value for minors.’”
Thomas, who authored the majority opinion, explained that the court applied “intermediate scrutiny” to HB 1181. As minors have no First Amendment right to obscene material, the majority argued, “Any burden experienced by adults is therefore only incidental to the statute’s regulation of activity that is not protected by the First Amendment.”
At least 21 other states have enacted similar age-verification laws, the legality of which Paxton supports. At the same time, opponents of these sorts of laws, and the court’s ruling, specifically, prop up pornography as a vital test of free expression.
That complaint, of inhibiting adult access and endangering their data, is the crux of the dissent.
Activists for the sex industry and the LGBT movement are therefore as passionate about the case as free-speech libertarians are, as demonstrated by the deceptively named plaintiff, the Free Speech Coalition — the “trade association of the adult entertainment industry.” Likewise, the American Civil Liberties Union categorizes the case under two issues, “Free Speech” and “LGBTQ Rights,” while gay tech advocates say that Paxton encourages “targeted attacks against the LGBTQ+ community and the content its members rely on.”
Outright pornography is a unique evil, especially when in the video-on-demand form. It is totally distinct from the speech protected by the Constitution.
Psychological harms from pornography range from simple pollution of the imagination to a distorted sense of appropriate sexual behavior. A growing desire for violence results, as does the breakdown of human relationships. Physical effects do not stop there, as rates of sexual dysfunction increase for both young men and women. The addictive nature of the internet corresponds to mental illness, such as depression, and all the more so when the object of addiction is graphic sexual content.
It is “misleading in the extreme,” Thomas wrote, to assume that previous age-verification cases “spoke to the circumstances of this case simply because they both dealt with ‘the internet’ as it existed in the 1990s.” Today, the public agrees on the harms of social media use and explicit content generally, and wants to curb its addictive use.
SUPREME COURT HANDED DOWN MAJOR RELIGIOUS LIBERTY WINS THIS TERM
A heightened burden in accessing pornography, then, is a justified trade-off in the pursuit of children’s rights, to which the state has an undeniable duty. One look at the opposing side of Paxton confirms the intuition that the suit is more than disinterested legal purism: It is pornography per se, not free speech, that these activists are interested in. The disastrous social costs of that interest are well attested.
If Paxton has a “chilling effect” on adults, too, good.