Report from the New York Times
In Brief – Several members of the Supreme Court’s conservative majority appear willing to overturn a 2004 decision that prohibited requiring online pornography sites to use age verification techniques to keep underage users off their sites. The case involves a Texas law that requires commercial websites adjudged to be “more than one-third of which is sexual material harmful to minors” to use age verification. It was upheld by the Fifth Circuit Court of Appeals in a direct rejection of the High Court’s decision in Ashcroft v. ACLU and the plaintiffs largely replayed the free speech and privacy arguments that had prevailed 20 years ago, including that complying with age checks was an undue burden on adults with the right to view sexually explicit material, that they were justified in fearing giving out personal information on such sensitive activity, and that parents could protect their children by using content-filtering software. The State of Texas argued that age checking technology was vastly improved, content-filtering tools had proven a failure, and online pornography had vastly expanded and was harming young people. Justices appeared to agree the online ecosystem had changed. Chief Justice Roberts said, “Technological access to pornography, obviously, has exploded,” and “the nature of pornography, I think, has also changed.” The Fifth Circuit’s decision employed a far more relaxed legal standard than the “strict scrutiny” test the High Court has employed. Justices asked if they could rule in a manner that backed the strict scrutiny standard and still kept the Texas law in place because they believed the law met that test.
Context – The impact of this case will go beyond age verification for online pornography. State laws regulating social media use by teens operationally require age verification. This decision may impact the legal standard for them, as well as provide a snapshot into how the justices are thinking about how “the internet” is changing things. The TikTok ruling too. Finally, I’m reminded of how the FOSTA-SESTA law weakened Sec. 230 to combat “sex trafficking” and some forecast a general weakening of Sec. 230. But that has not really come to pass yet.