On November 22, 2024 IFS Senior Fellow Brad Wilcox joined other Social Science Scholars in submitting an Amicus Brief to the Supreme Court of the United States in support of the respondent in Free Speech Coalition, Inc., ET AL., v Ken Paxton, Attorney General, Texas. As detailed in our press release here.
SUMMARY OF ARGUMENT
Although exposure to sexual media and pornography has long been known to harm children, the risk of harm has become far greater since the Court decided Ashcroft v. ACLU, 542 U.S. 656 (2004). As the Court then cautioned:
[T]he factual record does not reflect current technological reality—a serious flaw in any case involving the Internet. The technology of the Internet evolves at a rapid pace. Yet the fact findings of the District Court were entered … over five years ago. Since then, certain facts about the Internet are known to have changed. … It is reasonable to assume that other technological developments important to the First Amendment analysis have also occurred during that time.
Id. at 671. In the two decades since Ashcroft, the landscape has changed in two significant ways.
First, minor access to pornography has grown, and pornography has gotten worse. Over the past two decades, the smartphone has encouraged a digital culture where minors have regular and unfiltered access to online pornography. Underage pornography use has become the norm, not the exception. Online pornographic content has also changed, becoming more extreme, violent, and deviant. For example, minors are frequently exposed to pornography involving unhealthy and risky sexual scripts, deviant sexual behavior (e.g., incest, statutory rape), and violence (rape and sexual assault) that is typically directed towards women and girls. These developments have shown that internet “filtering,” the current means of protecting minors from online obscenity, has failed as a “least restrictive alternative.” Ashcroft, 542 U.S. at 666.
Second, this Court has access to far more advanced research on the effects of underage pornography use than when it decided Ashcroft. New social science shows that pornography harms minors in myriad ways. Recent research has confirmed that underage pornography use encourages unhealthy sexual scripts and behaviors, sexual aggression, pornography addiction, struggles with mental health, and less stable relationships. Some risks continue well into a person’s adulthood and have lifelong deleterious effects on relationships and well-being. Ubiquitous pornography access, abetted by smartphones, harms vulnerable young people the most.
Petitioners ask this Court to hold that “strict scrutiny” applies to age-verification laws such as H.B. 1181. “[T]hat balancing approach is policy by another name. It requires judges to weigh the benefits against the burdens of a law and to uphold the law as constitutional if, in the judge’s view, the law is sufficiently reasonable or important.” United States v. Rahimi, 144 S. Ct. 1889, 1920 (2024) (Kavanaugh, J., concurring). Age-verification laws help prevent problems that are far more grave than any incidental “chilling” of adult access to pornography. Whatever test the Court applies, it should allow room for reasonable age-verification laws.
“There is danger that, if the Court does not temper … doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into” a tool to promote obscenity, heedless of minors. Terminiello v. City of Chicago, 337 U.S. 1, 37 (1949) (Jackson, J., dissenting). The Free Speech Clause doesn’t guarantee effectively unrestricted access to pornography in minors’ pockets.
