Access to online pornography a new states’ rights issue
Originally published in the Fall 2023 issue of California Publisher.
By Jason M. Shepard
Pornography is ubiquitous on the internet. Lawmakers in several states are trying to put a stop to that.
In the last year, at least six states have passed laws requiring commercial pornography sites to verify the identity and age of its users, and some states have required websites to post warnings about the alleged harms of viewing pornography.
The legislation comes after more than a dozen state legislatures have declared pornography a public health crisis.
In response, some websites like Pornhub have blocked users from those states from accessing its site all together.
If there is one First Amendment, can 50 different states institute 50 different sets of rules for publishing and accessing sexual expression online?
Legal battles over pornography are as old as mass communication itself. During the Comstock era, books, magazines and later films were subject to the whims of local and state prosecutors.
But by 1973, the U.S. Supreme Court established one legal test for obscenity, and subsequently, only the most extreme forms of sexual expression fit the definition.
As a result, pornography has thrived online. Just one pornography company, Pornhub, reports 125 million daily visits to its sites, with more than 100 billion video views per year.
Lawsuits underway in several states may result in a rematch of legal disputes from the early days of the internet, when Congress tried in the early 1990s to regulate online content.
In 1997, the U.S. Supreme Court struck down the the Communications Decency Act, which criminalized “obscene or indecent” online expression accessible by someone under the age of 18.
Such a law, the Court ruled in Reno v. ACLU, would effectively ban protected expression among consenting adults, in violation of the First Amendment.
“In order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another,” Justice John Paul Stevens wrote for the majority, adding, “the Government may not “reduc[e] the adult population … to … only what is fit for children.”
The Reno decision, and several subsequent interpretations, established that the First Amendment set a high bar for regulating content online — even expression that may be harmful to minors.
The decision paved the way for a free and largely unregulated digital marketplace of ideas over the next 25 years.
Now, courts are being asked to revisit the Reno precedent in light of new state laws targeting pornography.
At least six states, including Louisiana, Utah, Mississippi, Virginia, Arkansas and Texas, have passed anti-pornography laws since last summer.
The laws include provisions mandating age-verification technology, some of which require users to upload driver’s license and credit card information to access pornography sites.
Some state laws also require specific disclaimers warning about alleged harms from watching pornography.
In Louisiana, lawmakers wrote in the bill the alleged detrimental effects of pornography include hyper-sexualization, low self-esteem, body image disorders, and increases in risky sexual behavior.
“Pornography may also impact brain development and functioning, contribute to emotional and medical illnesses, shape deviant sexual arousal, and lead to difficulty in forming or maintaining positive, intimate relationships, as well as promoting problematic or harmful sexual behaviors and addiction,” according to the Louisiana law.
Several other states have similar anti-pornography bills under review, and lawmakers in Congress have introduced bills at the federal level.
In a recent column in the New York Times, David French argues that technology has improved that it’s now time for lawmakers to make it more difficult for minors to access pornography online — much like laws limit minors’ access to in-person adult businesses.
“Yes, age verification will make porn more difficult to obtain for adults. But age verification and zoning in the real, nonvirtual world also crate slight difficulties for adults yet remain legal,” French wrote. “As ID requirements for strip clubs and other adult establishments demonstrate, adults do not have a constitutional right to access to pornographic materials with complete anonymity. And as zoning laws that restrict sex-oriented businesses to certain areas demonstrate, they do not have a constitutional right to convenient pornography.”
Many critics would disagree. Some legal scholars argue that the internet has enhanced rights to engage in anonymous expression.
Others say some of the concerns about pornography are overblown and unproven. They also worry about privacy and surveillance issues when users are required by the government to upload sensitive personal information like driver’s license information.
And some bills target content beyond pornography, including broader categories of “harmful” content that some worry could create a chilling effect for communication about a wide range of controversial topics.
Some observers have also drawn connections between the anti-pornography laws and other attempts to ban books from libraries, prohibit the teaching of critical race theory, and shut down drag shows — part of a larger culture war over expression being waged by conservative legislators.
Under current Supreme Court doctrine, such laws targeting speech based on content are subject to strict scrutiny, requiring that the laws use the least restrictive means and narrowly tailored to serve a compelling governmental interest.
If old precedents hold, most of these laws are likely unconstitutional.
Recently, a federal judge in Austin issued an injunction blocking the Texas laws from taking effect, ruling it likely violates the First Amendment.
In addition to requiring age-verification, the Texas law requires pornography sites to post a “public health warning” about the psychological dangers of pornography.
“Pornography is potentially biologically addictive, is proven to harm human brain development, desensitizes brain reward circuits, increases conditioned responses, and weakens brain function,” the required warning reads. Websites are also required to state that pornography “increases the demand for prostitution, child exploitation, and child pornography.”
In an 81-page decision, Judge David Ezra eviscerated the law, suggested the law was vague, not narrowly tailored, and chills protected speech among adults.
The law “will allow the government to peer into the most intimate and personal aspects of people’s lives,” Judge Ezra wrote.
For example, the law is “severely underinclusive” by leaving many opportunities for minors to access pornography beyond the websites targeted by Texas, including search engines and non-U.S. based websites.
The judge also pointed out many problems with the age-verification systems. “Even beyond the capacity for state monitoring, the First Amendment injury is exacerbated by the risk of inadvertent disclosures, leaks, or hacks,” the judge wrote.
In applying another element of the “strict scrutiny” test, the judge wrote that several less-restrictive means exist to protect minors from accessing sexual content online, including ISP-level and device-level content blocking and filtering software.
Finally, the judge also ruled the health warnings likely to be unconstitutional compelled speech. The warnings would not be effective at reaching minors if age-verification tools prevented minors from accessing the websites in the first place.
He also questioned the accuracy of the required warning labels.
“Each portion of the compelled message is politically and scientifically controversial,” he wrote. “This is a far cry from cigarette warnings. Unlike cigarettes, pornography is the center of a moral debate that strikes at the heart of a pluralistic society, involving contested issues of sexual freedom, religious values, and gender roles. And the relevant science, shows, at best, substantial disagreement amongst physicians and psychologists regarding the effects of pornography.”
The Texas decision is among the first to test the constitutionality of these new laws. It won’t be the last.
Jason M. Shepard, Ph.D., is a media law scholar, and professor and chair of the Department of Communications at California State University, Fullerton. Contact him at jshepard@fullerton.edu or Twitter at @jasonmshepard.
