Age-Gating Access To Online Porn Is Unconstitutional

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.