Commentary
Should online pornographers get better treatment in court than brick-and-mortar adult venues?
That’s a key question the Supreme Court faces in Free Speech Coalition v. Paxton—and the answer should be a resounding no. Online porn companies aren’t special—they deserve the same treatment as companies operating brick-and-mortar venues.
In Paxton, the porn industry
asked the U.S. Supreme Court to apply the most rigorous standard of judicial review—strict scrutiny—to
Texas’s age-verification law for porn sites.
Strict scrutiny applies only when laws affect the most fundamental rights in the American system. It places the burden of proof on the government to show that the law is “narrowly tailored”—that it is the least restrictive means of serving a compelling government interest.
According to the industry, strict scrutiny should apply because Texas’s law burdens adults’ First Amendment right to access sexually explicit content online. Specifically, they argue, age-verification requirements impede access to content that, while obscene for minors, is protected “speech” for adults.
Considering obscenity protected “speech” is absurd on its own. But even setting that aside, the industry’s argument for strict scrutiny has another problem: It would leave the Court with a Hobson’s choice between two terrible options.
Either the Court would have to implement higher scrutiny across the board for all age restrictions on obscenity (meaning many age-restriction laws for physical adult stores would likely be called into question), or it would have to carve out exceptions granting online pornographers special treatment compared to their brick-and-mortar peers.
States have long prohibited brick-and-mortar venues—bars, strip clubs, and adult bookstores—from allowing minors to access obscene material or gain entry to their premises. And courts have historically declined to treat these age restrictions as content or viewpoint-based speech restrictions—a distinction that allows them to avoid applying strict scrutiny.
This distinction matters because strict scrutiny imposes an exacting standard that few laws survive.
Thankfully, as Justice Alito
noted, the Supreme Court has typically applied rational basis review—a much less rigorous standard—to laws barring stores from knowingly providing adult content to minors.
When Justice Gorsuch
asked during argument whether the porn industry agreed that “brick-and-mortar institutions shouldn’t be treated differently than online ... [sites],” counsel for the industry initially agreed.
Later, however, Big Porn’s attorney
clarified what he really meant. When
asked whether laws requiring ID checks at in-person adult venues were “impermissible” given the industry’s free speech claims, counsel suggested such laws would “[potentially] ... be subject to strict scrutiny.”
Such a move would depart from the standard of scrutiny applied in cases like Ginsberg v. New York and would likely open the door to a flood of litigation. If strict scrutiny applied across the board, pornographers who distribute obscenity in a physical location would suddenly have a fighting chance at overturning age verification laws (a chance they currently lack under rational basis review).
Yet even if the Court declines to apply strict scrutiny across the board, the digital pornographers argue that their websites are “
different” enough from physical venues that they should still receive strict scrutiny carveouts.
Specifically, they claim, age verification online poses privacy risks that may deter adults from accessing protected “expression”—an effect they argue would warrant strict scrutiny. They
argue that digital age verification, unlike checking an ID in person, would require providers to collect and retain user information that could later be compromised.
This argument has several major shortcomings.
First, online age verification does not necessarily require users to upload their photo IDs to access a site;
methods exist to accurately verify users’ ages without compromising privacy.
But more fundamentally, the porn industry’s privacy argument relies on the faulty premise that age verification online poses greater privacy risks than similar requirements at brick-and-mortar establishments.
They imagine that age verification in brick-and-mortar venues
amounts to “just flashing an ID in physical space,” but that age verification online entails a heightened risk of unwanted exposure if user data were compromised.
Yet customers face many of the same risks (or worse) in brick-and-mortar adult spaces.
Some states and localities
require adult performers to obtain government-issued IDs to work in strip clubs. Others
require venues to maintain personal information about their performers and verify their ages before and during employment.
Performers and the American Civil Liberties Union have made a similar argument the porn companies make here—that such requirements
risk violating privacy. But even if performers challenge those requirements, the privacy risk involved in engaging in protected “expression” doesn’t guarantee them more than rational basis review.
If strict scrutiny doesn’t apply to requirements regulating those (like strippers) actually engaged in so-called “protected adult speech,” it makes no sense to apply strict scrutiny to laws regulating those who merely consume that same “speech.”
The same standard of rational basis review applies to brick-and-mortar pornographers as well as to strippers.
The mere fact that Big Porn operates via the internet does not entitle them to protections that none of their offline counterparts are typically afforded.
It’s time for Big Porn websites to play by the same rules as everyone else—and that means no strict scrutiny to the age-verification law.
Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.
