(The Center Square) − Lawmakers, free speech advocates and pornography sites across the country are waiting for the U.S. Supreme Court to decide on Texas’ House Bill 1181.
The high court will hear arguments on Jan. 15 in what could be a landmark case deciding the fate of more than a dozen laws across the country that impose heavy restrictions on websites that offer pornography and other “material harmful to minors.”
The 5th U.S. Circuit Court of Appeals recently upheld a Texas law that limits adults’ access to certain speech in order to protect minors.
The court used a lower legal standard, called “rational-basis review,” which is easier for laws to survive. However, the main issue now is whether this was the correct approach.
If the court applies rational-basis review, which is a more lenient standard, it would make it easier for states to justify restrictions on online content, including age-verification requirements for adult sites.
The Supreme Court, which has repeatedly struck down such laws, is gearing up for round three of an attempt to limit sexually explicit content.
“Suffice it to say, they are not streaming ‘romance novels or R-rated movies,'” Texas’ brief says in part, reluctantly adding a horrifying scene. “In one of Petitioner Xnxx’s more than 300,000 free videos of ‘teen bondage gangbang[s],’ five men tie a young woman down with electrical tape and take turns penetrating her orally, vaginally and anally – sometimes simultaneously.”
In 2020, an investigation from The Guardian uncovered a significant number involving underage individuals and victims of sex trafficking, leading Pornhub to take down millions of videos.
Thirteen states have passed laws which effectively outlaw sites which are composed of at least 25% of such material.
Though the language of the various laws are limited to minors, their effect is indiscriminate. Pornhub, RedTube and YouPorn are now entirely inaccessible in 16 states, including Texas.
“These types of laws don’t just burden speech to minors, it burdens speech as to adults,” said Greg Gonzalez, legal counsel for the Foundation for Individual Rights and Expression. “That’s the issue here.”
The laws push against First Amendment violations, and not for the first time.
In 2004, the U.S. Supreme Court invalidated the Child Online Protection Act, a federal law aimed at restricting minors’ access to harmful material online. In Ashcroft v. ACLU, the court ruled 5-4 that the law violated the First Amendment’s protections on free speech.
The legislation enacted in 1998 sought to impose criminal penalties on websites that made content “harmful to minors” without requiring age verification. Civil liberties groups argued the law was overly broad and would chill legitimate online expression.
Déjà vu.
“A law may violate the First Amendment if it is so overly broad that it curtails protected as well as unprotected speech,” the Supreme Court held in the 1997 case of Reno v. ACLU.
So, while Texas’ House Bill 1181 is meant to limit pornographic content to minors, its indiscriminate effect may implicate a violation of the First Amendment.
In Reno, the issue of age verification for internet use was addressed, with the court noting that different online activities pose distinct challenges. The court found that “there is no effective way to determine the identity or the age of a user who is accessing material through email, mail exploders, newsgroups or chat rooms.”
The court also noted that even if it were possible to block minors from harmful content in these spaces, it would be too hard to do so without also blocking access to much of the other content that isn’t harmful.
The platform X, formerly Twitter, updated its terms in 2023 to allow for sexually explicit material. Though the platform offers pornographic content like any other dedicated site, most of the content is nonpornographic and is protected under the First Amendment.
Requiring all X users to verify that they are over 17 years old “sweeps more broadly than necessary and thereby chills the expression of adults,” wrote late Judge Dolores Sloviter for the 3rd U.S. Circuit Court of Appeals in her opinion on the Child Online Protection Act.
Further, X would be unlikely to meet the threshold required for a site to impose age verification, making the law ineffective.
Aylo, the parent company of Pornhub, says age verification laws aimed at protecting children from adult content are ineffective and counterproductive.
The company claims these laws restrict lawful adult activity online and push users toward unregulated, riskier sites that lack moderation for nonconsensual content. Additionally, Aylo warns that requiring adult sites to store user IDs poses significant privacy risks, further complicating compliance.
Texas says HB1181 should not be subjected to the same strict scrutiny as the federal Children’s Online Protection Act. Unlike COPA, which criminalized the posting of harmful content online for commercial purposes, HB1181 is a civil statute and carries no criminal penalties, a distinction Texas believes should result in less legal scrutiny.
The brief highlighted that COPA’s age verification requirements, which allowed defendants to avoid prosecution by restricting access to harmful content, were viewed as a significant burden on free speech. By contrast, Texas argues that technological advancements have made age verification far easier and less invasive, further supporting HB1181’s approach.
Additionally, Texas pushed back against the petitioners’ reliance on previous cases like Sable Communications, which upheld certain restrictions on content to protect minors. The state contends that Sable actually supports HB1181’s requirement for websites to screen users for age, a provision that aims to protect minors without overreaching into censorship of adult content.
Kansas Republican state Rep. Susan Humphries emphasized the need for barriers to protect children from pornography, stating, “The harms that pornography cause to our Kansas kids compel us to create barriers for their access.”
Research in 2023, highlighted in the eSafety Commissioner’s roadmap, showed 41% of teens ages 16-18 encountered pornography on X, surpassing the 37% on adult websites. Although X limits content to users 18 and older, there’s no way to prevent users from inflating their age, raising concerns that platforms like X may not meet age-verification thresholds required in states like Florida and Kansas.
Further studies revealed that Instagram, TikTok and Reddit were significant sources of pornography for minors, with 33%, 23% and 17% of respondents respectively reporting exposure. The eSafety report noted that some services allow pornography while others do not, but children still encounter it on both.
Like these same social media apps, the Texas brief cites studies which suggest that internet pornography is addicting and that pornography sites use algorithms and artificial intelligence to “hook” users.
Further, any age verification can be easily bypassed with a simple virtual private network.
“Using a VPN in this case will indeed bypass the block since what Pornhub did was geo-blocked access to their website from any Florida IP address instead of implementing an age verification system as they did in Louisiana,” Lisa Taylor, a research representative for VPN Mentor, told The Center Square. “VPNs allows users to mask their IP address by routing their internet connection through a server in a different location, which can be in another state or country, so the website you’re trying to access using a VPN will ‘think’ you are accessing from the country or state you select.”
VPN Mentor observed a 1,150% surge in VPN demand within the first few hours of Pornhub blocking the site in Florida.
By Nolan McKendry | The Center Square
