By: Jack Liechty
Context
73% of teenagers aged thirteen to seventeen have watched pornography online.[1] 53% have seen it before the age of thirteen.[2] 15% before the age of 10.[3] Some argue that this early exposure to pornography is a net positive for society because it leads to a displacement of sexual aggression and empowers women “by loosening them from the chackles of social prudery and restrictions.”[4] Some even go as far as to say that pornography is an art form that helps younger individuals initiate the process of sexual adventure, exploration, and discovery.[5]
Others staunchly disagree. These critics emphasize that numerous studies have shown that pornography addiction can normalize sexual objectification,[6] distort adolescents’ understanding of sex,[7] and even chemically alter teenagers’ brains to a similar degree as hard drugs.[8] Not only that, but some interpret the data to show that pornography can actually promote sexual violence[9] and even fuel sex trafficking.[10]
Current Laws and Litigation
As a result, several states have enacted laws that attempt to combat these harms facing children. In 2023, North Carolina passed the Pornography Age Verification Enforcement Act (PAVE Act), which requires commercial entities that publish online materials harmful to minors to implement age verification methods.[11] This law is a byproduct of the more nationally recognized law from Texas, H.B. 1181, which is being reviewed by the Supreme Court this upcoming term.[12] H.B. 1181 requires commercial entities to use reasonable age verification methods when more than one-third of their online material is sexual material harmful to minors, including pornography.[13] After a challenge from the Free Speech Coalition, a mouthpiece for the porn industry, the Fifth Circuit upheld the constitutionality of H.B. 1181.[14] Relying heavily on Ginsberg v. New York,[15] the Fifth Circuit reasoned that the law’s emphasis on protecting minors from harmful pornography addiction requires applying rational basis review.[16]
However, this holding seems to contravene more recent Supreme Court precedent. For example, in Reno v. ACLU, the Supreme Court invalidated a law that prohibited the transmission of indecent and offensive material to minors and even included an age-verification requirement.[17] Central to the Court’s reasoning was the fact that the law was a content-based restriction, meaning strict scrutiny would apply.[18] Similarly, in United States v. Playboy Entertainment Group, the Supreme Court held unconstitutional–applying strict scrutiny–a federal law that prohibited television companies from airing sexually explicit programming from 6 am to 10 pm because it was a content-based restriction that burdened adult access to the content.[19] Additionally, the Supreme Court in Ashcroft v. American Civil Liberties Union addressed a law that imposed heavy fines and even a prison sentence for anyone who posted, for commercial purposes, content harmful to minors.[20] However, the law provided an affirmative defense to commercial speakers who restricted access to prohibited materials by requiring the use of a credit card or “any other reasonable measures that are feasible under available technology.”[21] The Court held that this law was clearly content-based and therefore required strict scrutiny.[22] Given that H.B. 1181 similarly restricts pornography for minors based on its harmful sexual content and that it burdens adults’ access by forcing them to verify their age, Reno, Playboy, and Ashcroft seem to require that strict scrutiny applies to H.B. 1181.
In fact, this is similar to the arguments that the Free Speech Coalition made in front of the Supreme Court regarding H.B. 1181.[23] In their brief to the Court, they emphasized that many individuals view pornography as an art form, and thus, prohibiting it for minors is a content-based restriction that requires strict scrutiny analysis.[24]Furthermore, because many romance novels or R-rated movies include over one-third of sexual material, the regulation is overbroad and overinclusive.[25]
In contrast, Texas argued that pornography addiction for children is “creating a public health crisis.”[26]Therefore, pursuant to Ginsberg, the pornography industry should be forced to “take commercially reasonable steps to ensure that those who access the material are adults.”[27] Furthermore, Texas distinguished outdated Supreme Court precedent that could not comprehend the evolvement of technology to today’s standard, where almost any teenager in America can access extremely explicit pornography in a matter of seconds.[28]
Important Unanswered Questions
These arguments raise several questions regarding how the Supreme Court will resolve the legal issues surrounding age verification laws. Will it decide that the content-based nature of these laws undoubtedly requires strict scrutiny, or will the clear harm to minors allow rational basis review? Given the evolvement of technology and the porn industry, might the Court revisit obscenity jurisprudence entirely and hold that pornography as a whole fails to pass constitutional muster? In other words, will the Court feel the need to keep legitimizing pornography as art, or will it recognize that its addictive qualities fall short of requiring First Amendment protection? Thus, the Supreme Court has the ability to unshackle the porn industry from age verification legislation that is poised to deter one of its main market demographics. Or, the Court can embolden legislatures to shield vulnerable minors from the psychotropic consequences of pornography addiction.
[1] Common Sense Media, New Report Reveals Truths About How Teens Engage with Pornography, PR Newswire (Jan. 10, 2023), https://www.prnewswire.com/news-releases/new-report-reveals-truths-about-how-teens-engage-with-pornography-301717607.html.
[2] Id.
[3] Id.
[4] Milton Diamond, Porn: Good for us? Scientific Examination of the Subject has Found that as the Use of Porn Increases, the Rate of Sex Crimes Goes Down, Pac. Ctr. for Sex and Soc’y (July 17, 2012), https://www.hawaii.edu/PCSS/biblio/articles/2010to2014/2010-porn.html.
[5] Emma Boles & Kayla Tricaso, Is Porn Bad? A Look at the Pros + Cons, Modern Intimacy (Oct. 21, 2020), https://www.modernintimacy.com/is-porn-bad-a-look-at-the-pros-and-cons/.
[6] How Porn Can Normalize Sexual Objectification, Fight the New Drug, https://fightthenewdrug.org/how-porn-can-normalize-sexual-objectification/?_gl=1*jny6ly*_up*MQ..*_gs*MQ..&gclid=Cj0KCQjwytS-BhCKARIsAMGJyzrNFuiqkqCP5e0kDrcQj6m–O2g_s0B9afo7nto6pn3xhEcHqhVLuEaAnhWEALw_wcB (last visited Mar. 27, 2025).
[7] How Porn Can Distort Consumers’ Understanding of Healthy Sex, Fight the New Drug, https://fightthenewdrug.org/how-porn-can-distort-consumers-understanding-of-healthy-sex/ (last visited Mar. 27, 2025).
[8] How Porn Can Change the Brain, Fight the New Drug, https://fightthenewdrug.org/how-porn-can-change-the-brain/ (last visited Mar. 27, 2025).
[9] How Porn Can Promote Sexual Violence, Fight the New Drug, https://fightthenewdrug.org/how-porn-can-promote-sexual-violence/ (last visited Mar. 27, 2025).
[10] How Porn Can Fuel Sex Trafficking, Fight the New Drug, https://fightthenewdrug.org/how-porn-can-fuel-sex-trafficking/ (last visited Mar. 27, 2025).
[11] N.C. Gen. Stat. § 66-501(2023).
[12] Free Speech Coalition, Inc. v. Paxton, No. 23-1122 (Supreme Court argued Jan 15, 2025).
[13] Free Speech Coalition, Inc. v. Paxton, 95 F.4th 263, 267 (5th Cir. 2024).
[14] Id. at 287.
[15] 390 U.S. 629 (1968). Ginsberg held that the well-being of children is well within a State’s constitutional power to regulate, and therefore a law which regulated the sale of sexually explicit material to minors in brick-and-mortar bookstores was constitutional under rational basis review. Id. at 639.
[16] Free Speech Coalition, 95 F.4th at 276.
[17] Reno v. ACLU, 521 U.S. 844, 885 (1997).
[18] Id. at 868.
[19] United States v. Playboy Ent. Grp., Inc., 529 U.S. 803, 811 (2000).
[20] 542 U.S. 656, 656 (2004).
[21] Id.
[22] Id. at 660.
[23] Brief of Petitioner at 1, Free Speech Coalition, Inc. v. Paxton, No. 23-1122 (Supreme Court argued Jan. 15, 2025).
[24] Id.
[25] Id.
[26] Brief of Respondent at 1, Free Speech Coalition, Inc. v. Paxton, No. 23-1122 (Supreme Court argued Jan. 15, 2025) (internal citations omitted).
[27] Id.
[28] Id. at 2.
