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Supreme Court Rules on Age Verification for Adult Websites (LAWSPLAINING)

    Our busy day of Supreme Court coverage continues. First, we covered probably the most significant ruling of the day, where the Supreme Court put an end to this trend of universal injunctions by the lower courts. This means it will be harder to tie up Trump’s agenda in the courts. Then they struck a blow against schools exposing children to LGBTQ+ indoctrination by giving parents a right to opt out of it. And finally, in this piece we talk about how they upheld a Texas law requiring stronger age verification for access to pornographic website.





    (Wait… why is there a picture of former Congressman Anthoy Weiner there, where he is looking sad and frustrated? How did that happen? Oh well, mysteries like that might never be solved.)

    Turley wasn’t very interested in this case, but we will take a moment to explain it to you. First, what we commonly call pornographic material is covered by what the law calls obscenity. There are two levels of obscenity. Obscene materials are routinely seen as outside the protection of the First Amendment. To quote from Justice Clarence ‘The Hammer’ Thomas’ opinion:

    History, tradition, and precedent recognize that States have two distinct powers to address obscenity: They may proscribe outright speech that is obscene to the public at large, and they may prevent children from accessing speech that is obscene to children.

    So, there is some materials that are obscene, period, regardless of age. This is how the opinion describes the legal test for that:

    Our precedents hold that speech is obscene to the public at large—and thus proscribable—if (a) the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; (b) the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

    (Internal quotation marks, brackets and citations removed.) That kind of expression can be banned, completely, for everyone. But we are quick to point out that that not everything that one might call pornography is obscenity. For instance, this author thinks Basic Instinct is pornography, but it wouldn’t be obscene if only because it at least fakes artistic value.

    But there is also material that is not obscene in the eyes of an adult, but might be when viewed by a child. And with that kind of obscenity, that kind of material can be banned for children, and states have been doing that for decades. Naturally, this means that if a company wants to sell that kind of obscenity to adults when it is banned for children, states can require proof of age before purchase.

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    But the Internet has made it harder to verify age so Texas said that websites that contain material that is obscene to children but not adults, must have strong age verification requirements (that go beyond just asking you if you are 18 or older). We will say that the other side’s argument has some merit in this case because the Supreme Court has long said that you not only have a right to free expression, but you have the right to receive the expression of others. In other words, they can’t ban the New York Post from publishing and they can’t ban you from reading it. And we expect most readers recognize that you have a right to anonymous free expression—going right back to how the Federalist Papers was written anonymously. And, thus, the reverse is true—you would ordinarily be allowed to receive expression anonymously. For instance, the government can’t demand that the Washington Post reveal its subscribers’ list without a powerful justification for doing so. And thus, the legal objection is by requiring age verification, you are removing the right to anonymously view material that you are legally entitled to.

    But, as we noted above, the Supreme Court found that this age verification requirement did not violate the First Amendment. 

    This author also thinks a serious problem with this entire issue is … well, are they even going to be able to stop many kids from viewing this material with these laws? We see VPN’s (Virtual Private Networks) advertised all the time as being able to trick websites into thinking that you are not in the place, state or country you actually are at. They claim that you can use this to access different libraries on Netflix (apparently Netflix and other streaming services have different libraries depending on what country they think you are in). They also claim that it can be used to get around political censorship in places like China, Iran and Germany. So, we get the bad feeling that what will actually happen is that kids will just use these VPNs to get around these restrictions and watch what they want, anyway.

    And we don’t say any of that just to naysay. This author is not quite a full libertarian (the term ‘conservatarian’ seems to fit) but he is libertarian enough to say that the government shouldn’t be trying to do what it cannot do. On the other hand, we are not ready to say it is impossible to effectively keep children away from this kind of obscenity, but we are concerned that this is all a waste of time and taxpayer money. We’re not saying it definitely is a waste of time and money, but we are concerned that it might be.





    And we also say this to warn parents. If this author was a parent, we don’t think we would depend on the government to deal with this. Instead, we would use strong parental supervision. Like, for instance, we would probably put the family computer in the living room, so when we are watching TV we can also see what our hypothetical kid is doing on the computer—that sort of thing. We would look into programs that would allow us to monitor what our children are watching and doing on their smartphones and similar devices when we are not around. None of this is sounds easy or fun, but we don’t think we can expect Big Daddy Government to solve this problem for us. Government tends to be slow and stupid, and kids are fast and clever, especially when it comes to computers.

    Finally, we also hear people say something to the effect that they are afraid that this precedent will be applied to other areas. We actually aren’t worried about that. The fact is that we have had state mandated age verification for brick-and-mortar stores for decades, and it has remained confined to the issue of obscenity.

    A few other reactions:

    The cut off text:

    The ACLU is a lost cause, but FIRE is the organization that ACLU used to be and their amicus gives a pretty good explanation for why I can’t support it. (Long story short, it’s not nearly narrowly-tailored enough and could set a nasty precedent)

    He also provides a link to a FIRE website discussing this. We don’t always agree with FIRE, but we think they is the neutral and principled pro-freedom-of-expression organization. These days the ACLU is barely more than the legal arm of the Democratic Party.





    We fear that cynical approach is correct, but we would add that we are not sure they could regulate VPNs that way.

    Ugh, please people, stop doing this. Don’t trust any AI just yet. Find a human who knows the law. 

    Never too much.

    Actually, age verification has been upheld as far back as Ginsberg v. New York, 390 U.S. 629 (1968). That decision is nearly 60 years old and was written by liberal justice Brennan.

    So, basically, he is fine with a nanny state, just he wants it to be according to essentially European values (sexuality = good, violence = bad). But as noted in Brown v. Entertainment Merchants Ass’n, 564 U.S. 786 (2011), there is simply no American tradition of restricting violence in that manner by law. He would literally need to amend the Constitution in order to at least partially repeal the First Amendment to do that.





    Interesting point.

    As we said, the precedents requiring age verification for this kind of obscenity has been in place for around 60 years and we are still waiting.

    But finally, we will look in on Professor Volokh on this:

    It links to a piece by Mr. Volokh himself and he correctly notes that there really isn’t much innovation, here. And he has makes an interesting point:

    But in the process [of upholding the Texas statute], the majority reaffirms just how demanding the ‘strict scrutiny’ test is in the wide range of situations where it does apply. Indeed, the majority’s definition of strict scrutiny appears to be slightly narrower but slightly (or maybe even significantly) stronger than the dissent’s. As a First Amendment lawyer, I’ll likely be citing the majority’s passage a lot in cases where I’m challenging content-based speech restrictions

    This gets briefly into the three tiers of scrutiny used in various constitutional analysis: Strict scrutiny, intermediate scrutiny and rational basis review. As suggested by the words used, strict is the highest test—meaning if it is applied to a state law, it is the hardest for it to ‘pass’—rational basis is the lowest and intermediate is in between. Most observers say that strict scrutiny is strict in theory, fatal in fact, meaning that it is almost impossible for the government to win when that standard is applied. In other words, it provides the strongest protection to free expression when it is used. On the other hand, when a case is dealt with under the rational basis test, the government almost aways wins. And as you might guess, with intermediate scrutiny, the results are more mixed.





    But what do these tests actually mean? Thomas described the strict scrutiny test in the context of limits on expression as follows:

    Under that standard, the law would be constitutional only if Texas could show that it (1) serves a compelling governmental interest, (2) is narrowly tailored to achieve it, and (3) is the least restrictive means of advancing it.

    (Internal quotation marks, citations and brackets removed.) Meanwhile, in the First Amendment context, intermediate scrutiny means that:

    Under that standard, a law will survive review if it advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests.

    (Internal quotation marks and citations removed.) And the rational basis test says that 

    a law will be upheld if there is any reasonably conceivable state of facts that could provide a rational basis for its enactment.

    (Internal quotation marks and citations removed.) Basically these tests vary in 1) how strong the justification has to be, 2) how strong the evidence supporting that justification must be (in the rational basis test, the courts are given free reign to make up hypotheticals), and 3) how closely the solution must match the problem. The Fifth Circuit applied the rational basis test, the people fighting this law wanted the strict scrutiny test to apply, but the Thomas-led majority instead applied the intermediate scrutiny test.

    But to return to what Volokh was saying, we think that as he sees it, the majority was thinking ‘we don’t want the strict scrutiny test to apply because the law couldn’t survive it.’ By comparison, the dissenters seemed to be arguing ‘we should apply the strict scrutiny test, but don’t worry! We will water down that that test in order to uphold this law.’ That would raise the protection for obscenity, while degrading the protection for every other kind of expression.

    Call us crazy, but we don’t think that is a good trade off.

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