The Internet Comes of Age
In Paxton, SCOTUS protects childhood from the porn industry.
By Brad Littlejohn, director of programs and education at American Compass.
“No axiom is more clearly established in law, or in reason, than that. . . wherever a general power to do a thing is given, every particular power necessary for doing it is included.” Turns out that includes protecting kids from online pornography. Quoting James Madison’s pithy summary of the Necessary and Proper Clause from Federalist 44 in an unambiguous 6-3 ruling today, Justice Clarence Thomas handed down a decision that could change the shape of the internet as we know it.
Until now, the internet has floated largely free of the boundaries that define and shape our existence in the physical world—above all the distinctions of adult and child spaces that are fundamental to any social order. We have gradually, belatedly, awoken to the evils of this arrangement, discovering that by turning the whole online world into a consequence-free playground for adults, we were turning it into a hellscape for our children. Since nearly everything online was “speech” and speech was free under the First Amendment, the tech lawyers reasoned, any barriers—including the requirement to submit a simple proof of age—must be deemed intolerable.
But age verification is nothing new.
In 1908, Henry Ford unveiled his Model T, making one of the most powerful technologies in history available to every American family. That same year, Pennsylvania became the first state to age-gate access to the new devices, banning anyone under 18 from driving a car. Such age restrictions were a familiar feature of American law. States had begun restricting minors from purchasing alcohol as early as 1839. By 1900, 26 states had a minimum age for tobacco purchases. Although particular priorities ebbed and flowed, the twentieth century in general saw a steady trend to expand rights for adults, while recognizing that children should be treated differently. By the 1990s, age restrictions were the norm for alcohol, tobacco, firearms, driving, gambling, nightclubs, and pornography. Since then, many states have added tanning beds, Sudafed, and cough syrup to the restricted list.
Sometimes, as with tobacco, this has been because the product is harmful to everyone, but children are more vulnerable—more prone to addiction and less able to exercise discernment—and thus deserved society’s protection. Sometimes, as with automobiles, it was because the product could be dangerous to others in the hands of inexperienced minors. Sometimes it was both.
And then, along came the internet, full of astounding promise but untold perils, and soon to foster some of the most powerfully addictive behavioral pathways known to man.
While excited about the limitless potential of “cyberspace” (as we then quaintly called it), Congress quite sensibly supposed that, here, too, we must strike the now-familiar bargain between more liberty for adults and limits for children. The Communications Decency Act of 1996 sought to extend to the digital realm long-established brick-and-mortar restrictions on selling porn to minors, criminalizing anyone who “knowingly uses an interactive computer service” to transmit “patently offensive” sexual content to under-18s. The bill passed by an overwhelming margin, reflecting an era of bipartisan social conservatism in Congress, but it soon ran into stiff headwinds in a judiciary then in the grip of a free-speech absolutism shared by left liberals and right libertarians.
Within this context, it is little surprise that the clumsily written provisions of the Communications Decency Act were struck down 9-0 the very next year in Reno v. American Civil Liberties Union as a violation of the First Amendment. There was, however, a glimmer of hope in the decision. In a concurring opinion, Justice Sandra Day O’Connor observed, “The creation of ‘adult zones’ is by no means a novel concept. States have long denied minors access to certain establishments frequented by adults.” In principle, this was entirely reasonable because it was easy enough to tell the age of someone entering a physical location. The problem was that, for “the internet as it exists in 1997,” it was not; “it is not currently possible to exclude persons from accessing certain messages on the basis of their identity.” As these qualifiers suggest, however, Justice O’Connor considered this a temporary state of affairs. “Cyberspace is malleable,” she rightly observed. She went further, suggesting that “the transformation of cyberspace is already underway,” and “the prospects for eventual zoning of the internet appear promising.” The digital world, she suggested, could soon be brought into conformity with the physical.
Justice O’Connor would wait longer than she expected, but she would live to see the transformation of cyberspace—if only just. Louisiana HB 142, using advanced encryption technology to carve out adult-only zones for pornographic content online, took effect on January 1, 2023, just months before Justice O’Connor’s death. A whole generation of children, however, would have to suffer exploitation and abuse in the meantime.
Meanwhile, Congress quickly went to work to improve on the CDA. The new, much more carefully written Child Online Protection Act again passed both houses by overwhelming margins and was signed into law on October 21, 1998. Again, though, the law was enjoined, finally arriving before the Supreme Court in 2004. This time, it was at least close. Justice Anthony Kennedy (famous for opining in 1992 that liberty entails “the right to define one’s own concept of the universe”) ruled for a narrow 5-4 majority that while Congress certainly had a right to protect children from obscene content, it must avoid so much as “burdening” adults’ right to view hardcore pornography. Since most people in 2004, including the justices, naively thought of internet browsing as wholly anonymous and untracked, the thought that adults might have to identify themselves to a porn website was deemed to have a “chilling” effect on free speech. True, the Court recognized that in principle this chill could be tolerated if it were the only way to protect children, but, straying from the realms of jurisprudence to dabble in amateur technological analysis, the five justices opined that filtering software and parental controls should be up to the job.
Justice Breyer penned an impassioned dissent for the minority, emphasizing that reliance on such software placed an impossible burden on parents to protect children from content that, in fact, had never been protected by the First Amendment. Worse yet, it represented a form of judicial tyranny that ran roughshod over the legislative process. Congress had already responded to the guidance of the Court in Reno; it had painstakingly drafted a law to pass constitutional muster. “What else was Congress supposed to do?” Breyer exclaims.
Although technically Ashcroft only upheld a preliminary injunction and the case continued to wind its way through the lower courts, COPA finally died of neglect in the Third Circuit in 2009. By that year, pornography was no longer confined to the family desktop computer in the breakfast room, but was beginning to invade the pockets of nearly every child in America through the smartphone. Over the next decade, American society simply shrugged its shoulders and made its peace with pornography in a kind of “don’t ask, don’t tell” policy.
And yet porn rapidly established itself as the dominant business of the internet, bigger than Netflix or Amazon. And for its business model, it had adopted the tricks of trade of what has been called “the attention economy”—though “addiction economy” might be better: dopamine-driven engagement facilitated by infinite scroll and curated feeds of user-uploaded content. This also allowed the porn industry to adopt a “don’t ask, don’t tell” policy, pretending to be offering up good, naughty-but-nice consensual adult content, while in reality, a large proportion of the high-definition videos filling their websites depicted bondage, rape, and child pornography.
The results of early exposure to such content (often as early as eight or nine years old) soon began to make themselves felt in American society. Although rates of teen sex have dramatically declined (as boys couldn’t be bothered to approach real women, and girls were scared off by what they’d seen in porn), a rising proportion of sexual encounters became violent and abusive. Pediatricians began to report skyrocketing rates of child-on-child sexual abuse. Test scores fell and rates of erectile dysfunction rose. A large proportion of young men—and a growing proportion of young women—entered adulthood in various stages of pornography addiction, delaying family formation and breaking down marriages. Meanwhile, teens, desensitized to porn, began swapping nude photos in high schools like baseball cards—and were alarmed to find them months later plastered all over the internet as revenge porn.
However, for Gen Z, this was just modern life, and anything else seemed unimaginable. The digital sexualization of society seemed the ultimate one-way ratchet. But then came the pandemic, and porn came out of the closet.
Education by Zoom gave parents a chance to finally see what their kids got up on those Chromebooks the schools had given them. Meanwhile, although the mainstream porn industry was temporarily shut down by social distancing, the free market worked its magic and established and expanded the direct-to-consumer model perfected by OnlyFans, which by the end of 2020 had 85 million users and over 1 million “creators.” A few progressives sought to celebrate this new gig economy as the liberation of “sex workers.” But most Americans knew better. We don’t ban prostitution because we are puritanical moralists, but because we know that it destroys families, exploits women, and drags children into a life of abuse. Why would we be any more OK with digital prostitution?
In the year following the pandemic, it seemed that something at last snapped in the American people—or at least among American parents. In Louisiana, lawmaker Laurie Schlegel went on a crusade to enact the first age-verification law for pornography since COPA, while the Institute for Family Studies and the Ethics and Public Policy Center released a report with model legislation for other states to follow. A flood of state laws followed, now numbering 23. Although the laws were carefully crafted to avoid some of the finer points of constitutional objection to COPA, the strongest arguments they had in their favor were simply that the factual premises of Ashcroft had been rendered utterly obsolete by the past two decades of technological development. On the one hand, the exploding landscape of mobile devices and apps had rendered parental controls woefully inadequate, and on the other hand, anonymous, secure age verification technology was now widely available in many different form
The porn industry, of course, wasn’t about to take this lying down. The laws were soon enjoined in most states, and one, Texas’s HB 1181, was appealed all the way to the Supreme Court last year, with the Free Speech Coalition arguing on behalf of porn-industry plaintiffs that (1) age verification imposed a substantial burden on adult speech and thus triggered strict scrutiny, and (2) that content filters and parental controls were a perfectly adequate “less restrictive means” of protecting kids online.
The judges were having none of it. During the hearing, several justices scoffed at the idea that existing parental controls were adequate in our hyper-connected digital environment. Addressing the plaintiff for the porn industry, Justice Alito asked, “Mr. Shaffer, do you know a lot of parents who are more tech-savvy than their 15-year-old children?” And why—asked Justice Barrett—should online age verification be so different from brick-and-mortar adult shops? “Explain to me why this is so uniquely burdensome here when it’s not been in the real-world context.” Court-watchers were taken aback, with the smart money favoring Texas after the hearing.
Sure enough, today’s decision emphatically upheld the constitutionality of age verification. Even the dissenting justices conceded that the Texas law might well stand, but disagreed simply as to the standard of scrutiny. Writing for the 6-3 majority, Justice Thomas didn’t just sustain HB 1181, but argued that the law, and others like it, easily passed First Amendment muster under so-called “intermediate scrutiny.” Indeed, age verification followed inexorably from the Necessary and Proper Clause, he argued. Given that “from the late 19th century onward, this Court has consistently recognized the government’s power to proscribe obscenity” and that “States have a specific interest in protecting children from sexually explicit speech,” it stands to reason that states can take the needful measures to prevent children from accessing such speech. If they deem that it should be permitted to adults, then the natural means to do so is to require proof of age: “adults have no First Amendment right to avoid age verification.” And while it may have been reasonable to doubt the feasibility or necessity of the technology in 2004, Justice Thomas recognized that changing times may call for changing remedies: “With the rise of the smartphone and instant streaming, many adolescents can now access vast libraries of video content—both benign and obscene—at almost any time and place, with an ease that would have been unimaginable at the time of Reno and Ashcroft II.”
It is difficult to overstate the implications of this decision. Not only will it clear the way for nearly two dozen state laws, many of them currently enjoined, to come into effect, it will put fresh wind into the sails of similar bills introduced in many more states and in Congress. More significantly, this decision represents the tip of the spear for a wider movement, or indeed, two wider movements.
The first is a global pushback against the porn industry, perhaps the most twisted, sinister, and shameless industry on the planet. This is not your grandpa’s pornography, after all—not airbrushed models engaged in seductive stripteases. In case you need convincing, just read a few passages from Texas’s Supreme Court brief—though you’ll need a strong stomach. It describes in detail just a few of the grotesquely degrading videos that have amassed hundreds of thousands of views on popular porn websites. Some progressives continue to trumpet porn as liberating adult expression, but these claims ring more and more hollow. Men know that it degrades them and saps their virility. Women know that it turns them into objects of violent fantasies. Children know that it robs them of their innocence.
While some on the Right have suggested a total ban on pornography, even just requiring this industry to start abiding by existing laws would be transformative: No, you can’t show this stuff to children; no, you can’t feature children in your videos; and no, you can’t post content of anyone who hasn’t genuinely and affirmatively consented to such acts or recordings. The TAKEITDOWN Act recently passed overwhelmingly by Congress represents an important step in this direction, and there are other laws pushing in the same direction. Such changes would probably require the industry to adopt a very different—and much less profitable—business model, one that might reduce this societal scourge to manageable proportions, much as we have done with Big Tobacco.
The other great movement this aids is the campaign to defend childhood—not only from pornography, but from every form of digital addiction and exploitation. The groundswell already building since COVID was further energized by Jonathan Haidt’s The Anxious Generation last year, and numerous states have now passed laws to ban smartphones from schools, set age-limits on social media, and most recently, require parental consent for all app store downloads by under-18s. All of these measures reflect a return of the commonsense conviction that the barrier between adulthood and childhood that we recognize in the real world should apply to the digital world as well. Until now, that conviction has been thwarted by the technologically obsolete Reno and Ashcroft decisions that ruled most online age verification unconstitutional. This decision at last removes that barrier.
What Justice O’Connor wished for in 1997 has finally become a reality, even in the face of perverse incentives. It turns out that cyberspace is, in fact, malleable, and in good ways as well as bad. While we might lament the technological innovations that have made OnlyFans seem like a promising career path to many teen girls, we may celebrate the extraordinary advances in cryptography and machine learning that have made near-instantaneous, secure, anonymous age verification available now through numerous platforms. Today’s decision promises to rapidly accelerate the diffusion and adoption of this technology across websites, browsers, and smartphones. We may look forward to a world in which app stores, AI tools, and social media platforms regularly check that users are old enough to use their services, and a world in which you can’t get away with doing something to a child online that you could never do in real life.
We may look forward, in short, to an internet come of age, an internet still teeming with transformative possibilities, but disciplined and governed like any other medium of communication, as the framers of our Constitution intended.