Taking the Fight to Big Porn

A battle shaping up in the Supreme Court promises the first chance in two decades to rein in the pornography industry.

For more than 20 years now, perhaps no industry has done so much harm, with so little regulation, as Big Porn. And big it certainly is. In 2020, porn sites received more website traffic than Twitter, Instagram, Netflix, Zoom, Pinterest, and LinkedIn combined. The top site, Pornhub, is the 10th-most visited website in America; even the 10,000th most popular porn site in the world gets 4 million views a year. The content on these websites is not your grandpa’s porn—glossy, “tasteful” nudes posing seductively. It is violent and obscene, often depicting rape, incest, or even bestiality, and frequently featuring underage or coerced performers. And its #1 market is under-18s.

Chastened by a woefully misguided Supreme Court decision in 2004’s Ashcroft v. ACLU, legislators and regulators have left the porn industry largely unhindered. While minors are barred by law from purchasing alcohol, guns, tobacco, or even a Playboy magazine, and barred from entering sex shops or strip clubs, they can waltz into Pornhub, or OnlyFans’s virtual strip clubs, with the tap of a finger. All that at last began to change in 2022, though, when a series of states began passing laws to bring the online world into some conformity with the offline, requiring hard proof of age for accessing such sites. One of these, Texas’s HB 1181, was appealed all the way to the Supreme Court this summer, with oral arguments slated for January 15th.

One of the proudest moments of my professional life came last Friday, when my colleague Clare Morell and I submitted an amicus curiae brief to the Court in support of Texas’s right to take such actions to protect children. The brief, ably edited and filed by our colleagues Eric Kniffin and Rachel Morrison, was part of a massive coalition effort that Clare and I, among many others, have been helping organize over the past few months—an effort which saw scores of individuals and groups come together to file a total of 27 briefs in support of Texas, more than double the number of briefs filed on behalf of the plaintiffs (the porn industry doing business as “Free Speech Coalition”). Neuroscientists, addiction therapists, technology scholars, medical professionals, state policy organizations, social scientists like Jonathan Haidt, and activists such as Laila Mickelwait (author of the recent bestseller Takedown: Inside the Fight to Shut Down Pornhub for Child Abuse, Rape, and Sex Trafficking) were represented, along with a coalition of major religious organizations from the American Islamic Congress to the Latter-Day Saints to the Conference of Catholic Bishops to HinduACTion.

Over the next few weeks and months, as the case, Free Speech Coalition v. Paxton, goes before the Court, I’ll be writing a lot more about this subject, and the broader issues at stake, here and elsewhere. But I thought I’d take this opportunity to give a quick rundown on why this case is so important and how it might pan out.

When I tell people about this case, the most frequent response—from all points on the political spectrum, is “Why is this even a question?” Even if most Americans are more sexually permissive than is good for them, most recognize a basic distinction between what’s appropriate for consenting adults (or at least, what’s not worth trying to stop consenting adults from doing) and what’s appropriate for kids. This distinction remains quite robust in most aspects of our law and culture, and no one blinks an eye about barring minors from strip clubs. So why should the internet be any different?

Well, the internet came on the scene at perhaps the most libertarian moment of American life, and at a point when free-speech absolutism in particular was shared by large elements of left, right, and center, for their own reasons. The Court was particularly dominated by such thinking in the late 90s and early 2000s, and most judges and legislators didn’t understand the internet at all. The technology was developing so rapidly that governing officials, bewildered by it all, mostly just took the tech titans’ word for it that the internet was going to be such a force for good in society that regulators should not stand in the way, and that it was pointless to even try to regulate it in any case.

Congress’s first attempt to regulate online pornography, the Communications Decency Act of 1996, was quickly slapped down by the Court in Reno v. ACLU (1997), because it was vaguely-worded and overbroad, although the justices acknowledged that there was a compelling government interest at stake and that in principle, the online world should be “zoned” by age in the same way the offline world is, as soon as it was technologically feasible to do so. A more narrowly-drawn statute, the Children’s Online Protection Act of 1998, was still stricken down by a 5-4 decision in Ashcroft v. ACLU six years later on the grounds that it was not yet technologically feasible to do so—not, at least, without exposing adults who have a “right” to view pornography to major privacy concerns if they had to upload their IDs on an insecure internet. Given that this “chilling effect” was taken to constitute a “substantial burden” on “constitutionally-protected adult speech,” COPA was subjected to the highest level of Court scrutiny, strict scrutiny, which demanded that the “least restrictive means” of achieving the government’s goal of protecting children be employed. This means, the five justices in the majority believed, was parental control software.

Even then, four justices thought that was outrageous—the stakes were too high to leave parents to fight this battle single-handed, and in any case, even then, data suggested they were losing it: 25% of children were encountering pornography unintentionally every year. Today, in the aftermath of the broadband revolution, the smartphone revolution, the social media revolution, and now the AI revolution, that proportion has more than doubled, and a significant proportion of children are full-blown pornography addicts, with devastating physical and mental health consequences. Everybody knows the problem is worsening, and parental control software is not enough to solve it—the software may be steadily improving, but not fast enough to beat the many-headed hydra of the porn industry, with its tentacles in every corner of social media and on school-issued Chromebooks.

Still, Supreme Court precedents are hard to overturn, and few have even tried to challenge the laissez-faire legacy of Ashcroft until recently. It was no surprise that when states like Texas did so and began to require age verification, companies like Pornhub insisted there was no way their adult customers could be expected to comply, and pulled out of those states altogether. And, given how well-funded their lobbyists and lawyers are, it’s not much of a surprise that they succeeded in pressuring the District Court to issue a preliminary injunction against HB 1181 last year. What was somewhat surprising was just how thoroughly the Appeals Court, the Fifth Circuit, reversed that decision, ruling that HB 1181 didn’t even have to satisfy strict scrutiny, only the much lower standard of rational basis, which was easily met. Technically, it is on that narrow question that the Supreme Court has now agreed to hear the law.

Quite possibly, they will insist on maintaining the standard of strict scrutiny, in which case they are likely to remand the case back to the Fifth Circuit for reconsideration on that basis, likely setting up a sequel SCOTUS case in a couple of years when the Fifth Circuit presumably decides to still uphold the law on that narrower standard. Worst-case, they will apply strict scrutiny and just strike down the law then and there, pulling the rug out from under the 20-odd states that have passed similar laws. Thankfully, that seems improbable given the current composition of the Court and the changed circumstances since Ashcroft, and there is at least some chance that the Court will go ahead and explicitly uphold the law.

To persuade it to do so, there are at least three key arguments that need to be mounted, and which the battery of amicus briefs admirably undertook to make. First, it must be reiterated that there is a compelling government interest in taking urgent action to protect children from pornographers; the courts have never denied this, to be sure, but hitherto they have not treated the issue with particular urgency, with many justices seemingly oblivious to the character and consequences of contemporary pornography. Second, it must be shown that age verification is quick, easy, low-cost, and effective, and does not constitute a meaningful restriction on adult speech or access (this was denied at the time of Ashcroft, but the technology has vastly improved since). Third, it must be shown that parental controls are not a “less restrictive means” of achieving the government’s interest, because they are not remotely effective; there are too many devices and too many loopholes, and tech-savvy kids are running circles around exhausted parents. My brief with Clare is focused above all on making this argument, and highlights the fact that it is children of low-income, single-parent households that are most likely to be left unprotected in the current libertarian regime.

Of course, many people will ask, “Why only protect kids? Why not ban this filth altogether?” Fair question, but politics is the art of the possible. Certainly, if the conservative legal movement had been consistent in its putative “originalism,” conservative justices would have ruled long ago that the vast majority of pornography qualifies as constitutionally-unprotected “obscenity,” for adults as well as children. And a couple of the legal briefs are making that bolder argument. But Rome wasn’t built in a day, and Babylon won’t be torn down in a day either.

A focus on protecting kids right now, though, is hardly a defeatist gesture. Today’s children will be tomorrow’s adults. The porn industry knows this, and that is why it is so eager to addict them—and addict them it does, in millions. Neuroscience shows that adolescent brains are particularly vulnerable to being hacked in this way, but that by the time someone reaches their 20s, they are far more able to regulate their impulses (if not already disordered by addiction). This is why we treat tobacco the way we do; it can still be addictive, but someone first exposed in adulthood is unlikely to develop an uncontrollable addiction. Research suggests that the same is true with porn. Moreover, by taking a stand and drawing a legal line in the sand, we send a message loud and clear: this stuff is bad for you; this stuff is unsafe; maybe adults should think twice about their usage as well. The porn industry knows this, and that’s why it is fighting so hard; if it can continue to desensitize our collective conscience, and make us think that watching gangbangers is healthy, normal entertainment, it may soon create a world in which there is no political will left to resist, and we lapse completely into neo-pagan sensuality. If, however, we can win this battle, we may begin to turn the tide, and mobilize our national conscience and legal regime against this demonically exploitative industry.

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