Age verification mandates are among society’s most widespread and prosaic legal obligations. States require age verification to buy alcohol (or even enter a bar), get a tattoo, sign up to vote, or waive liability for dangerous activities. Similarly, Texas House Bill (H.B.) 1181 requires porn sites to verify the age of their users. H.B. 1181 goes further than other online age verification legal requirements, such as the self-affirmation (i.e., a click-through button affirming age) allowed under the Children’s Online Privacy Protection Rule (COPPA). Texas’s law requires actual verification through legal documents or other verifiable means.

Upheld by the U.S. Court of Appeals for the Fifth Circuit in Free Speech Coalition v. Paxton, H.B. 1181 is now headed to the Supreme Court, with oral arguments in January. The Court granted certiorari on a narrow question: was the Fifth Circuit right to apply rational basis review, as opposed to strict scrutiny, in upholding H.B. 1181?

Many legal observers believe strict scrutiny is appropriate, based on Ashcroft v. ACLU. There, the Supreme Court ruled 5-4 that strict scrutiny applied to the age verification requirement outlined in a federal law, the Children’s Online Protection Act (COPA), which was eventually struck down under that demanding legal standard.

In Free Speech Coalition v. Paxton, the Fifth Circuit ruled that Ashcroft was inapplicable because both parties in that case had assumed strict scrutiny applied, but the Court never actually ruled on that question. Instead, the Court looked to an older case, Ginsberg v. New York. There, the Court upheld under rational basis a New York law that prohibited sales of “girlie magazines” to minors.

The Free Speech Coalition and its amici find fault with the Fifth Circuit. They point out that Ashcroft applied strict scrutiny because it ruled that COPA restricted not only “obscene” speech, which has no constitutional protection, but also “obscene for minors” speech, which receives constitutional protection. Because the Court in its landmark Miller case defined “obscenity” under a very narrow, hard-to-prove test, much, if not most, pornography receives First Amendment protection. The Ashcroft Court, therefore, was concerned about protecting adult access to non-obscene, First Amendment-protected pornography, which, given the narrowness of the obscenity definition, includes, one imagines, most of PornHub.

Similar to COPA, H.B. 1181 regulates content that is “obscene for minors.” This term includes material not included within the scope of the Miller test for obscenity. Therefore, it regulates constitutionally protected speech, i.e., constitutionally protected porn. The Free Speech Coalition concludes, therefore, that strict scrutiny applies. Q.E.D. Another Fifth Circuit reversal.

But I wouldn’t bet on it for three reasons.

First, the Supreme Court is unlikely to die on the Ashcroft hill. The opinion is outdated and wrong—at times embarrassingly so. In 2004, well before the smartphone, it found that the age verification requirement was unconstitutional because there was a less restrictive alternative: filters. Well, twenty years have gone by, and that experiment has failed. Kids are more tech-savvy than their parents, and filters are difficult to control and update. Only the most dedicated parent—probably with a computer science Ph.D.—can keep adequate control.

But, even more critical, the smartphone has transformed the delivery of pornography. While a desktop computer allowed for some parental control through over-the-shoulder surveillance, the smartphone—unknown to the Ashcroft Court—delivers pornography in a private, unmonitorable way. In yet another novel experiment, Gen Z is the first generation of children to have access—a mere click away—to unlimited seas of pornography.

The results of this experiment, for which the Supreme Court bears some blame, are just as bad as those of the filter experiment. The grotesque truth is that pornography is simply a part of today’s “digital childhood.” Children initiate watching sexually explicit material around the ages of 10 to 14 years of age. An Australian study found that half of Australian children intentionally access pornography on the internet by the time they are 13 years old and that half of Australian girls have intentionally accessed pornography by the time they are 16 years old.

And pornography, as the most recent social scientific evidence now has established, causes unhappiness for adolescents and adults. Pornography reduces successful romantic attachment and satisfaction with one’s sex life and partner. And this is consistent with the record levels of mental illness, loneliness, unhappiness—as well as radically diminished romantic attachment—that Gen Z faces.

Online existence—not just porn, but also social media—has inflicted incredible pain upon an entire generation, as psychologists such as Jonathan Haidt and Jean Twenge have shown. Parents, and society in general, must regain control. Our civilization depends upon it

Further, Ashcroft is wrong about the burden that age verification purportedly imposes upon adults’ ability to access constitutionally protected speech. It reasons that because adults must identify themselves with government-issued IDs or credit card numbers, they will be deterred from going to sites to receive protected speech, i.e., non-obscene porn. The Ashcroft Court is a bit coy about the cause of this deterrence, but as the dissent states, it consists of cost and embarrassment.

Again, changing technology undermines the Ashcroft decision. New techniques involving trusted third parties do not require identification, credit card numbers, or government IDs. For example, you log into your bank account. Under most state laws, you must be an adult to open a bank account. Your bank then sends a cookie to your browser, only stating you are an account holder. The porn site could read the cookie, and without knowing who you are specifically, it could know you are a legal adult. There is no need to reveal your identity. Cryptographic methods—like zero knowledge proofs—use trusted third parties along with asymmetric encryption to achieve highest achievable levels of privacy. Similarly, age estimations can be made simply by analyzing online information about your email or even pictures of your hand movements.

Second, the Fifth Circuit’s decision stands squarely in the Supreme Court’s line of precedent—including Ginsberg, Rowan, Renton, and Pacifica—that allows the government First Amendment flexibility when protecting kids from pornography. In Ginsberg, the Court upheld age verification for non-obscene, protected speech, i.e., “girlie magazines” that were perfectly legal for adults. Similarly, in Rowan, the Court reviewed, under rational basis scrutiny, a law that allowed individuals to have the U.S. Post Office block delivery of sexually suggestive catalogs, certainly limiting the First Amendment rights of the catalogue owners to speak to potential customers. Renton reviewed under rational basis scrutiny zoning laws that restricted adult bookstores that sold both obscene and constitutionally protected porn to out-of-the-way places children could not easily walk to. In Pacifica, the Court allowed restrictions on profanity on broadcast radio, creating a whole new area of regulable speech, at least for broadcast radio and television, “indecency.”

Zoning, broadcast, and age restrictions for distribution of both obscene and constitutionally protected porn gave parents the power to control with relative ease their kids’ access to pornography and other material unsuitable for them. The Court traditionally has allowed sensible laws that do not directly regulate speech but that limit kids’ access to harmful speech to be reviewed under a rational basis to protect the home. That’s why our kids didn’t have access to porn for most of the 20th century. The Court in Ashcroft disrupted that balance with disastrous results.

Third, the scope of H.B. 1181 is a matter of state law. The Free Speech Coalition and its amici assume that the law’s definition of “harmful to children,” which tracks the Miller definition closely, extends beyond unprotected obscene speech to include protected pornography. On the other hand, the dissenters in Ashcroft did not think there was much difference between “obscene” and “obscene for children,” and Texas could adopt that view. Similarly, the law could simply express a community standard applicable in Texas under the Miller test. However, these questions, at first instance, are matters of state law. The Court should wait for an as-applied challenge to see how Texas courts interpret the law before weighing in on a constitutional challenge to it.

This post is part of a two-part series debating this term's Supreme Court case, Free Speech Coalition v. Paxton. Read the other side.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].