{"id":38088,"date":"2025-07-01T15:19:33","date_gmt":"2025-07-01T15:19:33","guid":{"rendered":"https:\/\/publicknowledge.org\/?p=38088"},"modified":"2025-11-22T20:46:32","modified_gmt":"2025-11-22T20:46:32","slug":"protecting-kids-shouldnt-mean-weakening-the-first-amendment","status":"publish","type":"post","link":"https:\/\/publicknowledge.org\/protecting-kids-shouldnt-mean-weakening-the-first-amendment\/","title":{"rendered":"Protecting Kids Shouldn\u2019t Mean Weakening the First Amendment"},"content":{"rendered":"\n

In Free Speech Coalition v. Paxton<\/em><\/a>, the U.S. Supreme Court upheld a Texas law requiring commercial websites to verify users\u2019 ages before allowing access to sexually explicit material deemed \u201charmful to minors.\u201d The 6-3 decision may appear modest; age-gating pornography to protect children sounds reasonable to many. But its legal rationale carries major implications. It lowers the level of constitutional scrutiny applied to content-based burdens on adult speech and opens the door to vague, privacy-invasive restrictions justified under a banner of child protection.<\/p>\n\n\n\n

Texas\u2019 law requires websites with more than one-third of their content consisting of material \u201charmful to minors\u201d to verify that users are 18 or older. Sites must use government-issued ID, credit card data, or other forms of transactional verification. Covered entities face daily fines, plus additional penalties if a minor accesses restricted content. The law sweeps broadly, and the penalties for noncompliance are high.<\/p>\n\n\n\n

To understand what\u2019s at stake, it\u2019s important to recall how constitutional scrutiny works in First Amendment law. Strict scrutiny, the highest standard, applies when the government burdens speech based on its content. To survive strict scrutiny, a law must serve a compelling interest, be narrowly tailored, and use the least restrictive means available. Most laws fail this test. Intermediate scrutiny, a middle-tier test, requires that the law serve an important interest and not burden substantially more speech than necessary. Rational basis, the most deferential standard, applies when no fundamental right is implicated \u2013 the government need only show the law is reasonably related to a legitimate interest.<\/p>\n\n\n\n

The challenge courts have faced is how to protect minors from certain kinds of speech without infringing on the constitutional rights of adults. The Court has long recognized that minors may be shielded from sexually explicit material that is not obscene for adults, but it has also insisted that adults should retain full access to protected speech. The constitutional problem arises when the state attempts to regulate access in a way that necessarily sweeps in adults, burdening their First Amendment rights both to speak and to receive speech. In such circumstances, the Court has consistently applied strict scrutiny and has struck down laws that are too broad, too vague, or that fail to explore less-restrictive alternatives.<\/p>\n\n\n\n

For example, in Sable Communications v. FCC<\/em><\/a> (1989), the Court struck down a federal ban on \u201cdial-a-porn\u201d telephone messages that were “indecent but not obscene.” The Court applied strict scrutiny because the law burdened adult access to protected speech. In Reno v. ACLU<\/em><\/a> (1997), the Court invalidated key provisions of the Communications Decency Act that banned \u201cindecent\u201d and \u201cpatently offensive\u201d material online, because of the effects on the speech of adults. In Ashcroft v. ACLU<\/em><\/a> (2004), the Court upheld a preliminary injunction against the Child Online Protection Act, finding that less restrictive alternatives like filtering software might be just as effective as content bans. And in United States v. Playboy Entertainment Group<\/em><\/a> (2000), the Court invalidated a law requiring cable operators to block sexually explicit channels during certain hours, holding that user-initiated blocking was a less restrictive alternative.<\/p>\n\n\n\n

The U.S. Court of Appeals for the Fifth Circuit in Paxton<\/em> broke from precedent. It held that Texas\u2019 law regulated only material that is \u201cobscene for minors,\u201d which it treated as a category of unprotected speech. On that basis, the court applied rational basis review and concluded that any burden on adults was incidental and, therefore, constitutionally insignificant. In last week\u2019s opinion, the Supreme Court rejected that standard but not the outcome. But rather than applying strict scrutiny in line with precedent, the Court applied intermediate scrutiny, holding that the burden on adult access was \u201cincidental\u201d to the state\u2019s interest in shielding children.<\/p>\n\n\n\n

This shift in analysis is both new and troubling. The Court does not treat the law as a content-based regulation of protected adult speech. Instead, it frames the law as a permissible enforcement tool aimed at unprotected material: specifically, speech that is obscene to minors. As Justice Thomas writes for the Court, \u201cThe power to require age verification is within a State\u2019s authority to prevent children from accessing sexually explicit content.\u201d But that assertion assumes its own conclusion. Under traditional First Amendment doctrine, a state has authority to restrict access to content only if its chosen method, such as age verification, is necessary and narrowly tailored to achieve the stated goal. The conclusion that the law is valid because the state has this power skips the analysis that would establish whether the law meets those conditions in the first place. Also, even if some form of age verification might be justified, that should not mean every law requiring it is constitutional.<\/p>\n\n\n\n

Last week’s opinion is thus a major change to First Amendment doctrine. Paxton<\/em> treats adult burdens as secondary and reframes precedent in a way that diminishes adult speech rights. Instead of reaffirming that adults have a fully protected constitutional right to access speech that is \u201cindecent but not obscene,\u201d and that any burden on that right must be \u201cnarrowly tailored,\u201d the majority holds that once speech is deemed \u201cobscene to minors,\u201d it becomes only \u201cpartially protected\u201d by the First Amendment, even when accessed by adults. The Court’s opinion attempts to deny this, but this holding is a major shift that will make it much easier to limit adult access to constitutionally protected speech in the name of protecting children.<\/p>\n\n\n\n

In doing so, the Court sets aside a once-useful analytic distinction. Earlier cases employed terms like \u201cobscenity\u201d more broadly. For example, in Ginsberg v. New York<\/em><\/a>, the Court cited with approval a lower court decision that had stated, \u201c[M]aterial which is protected for distribution to adults is not necessarily constitutionally protected from restriction upon its dissemination to children. In other words, the concept of obscenity or of unprotected matter may vary according to the group to whom the questionable material is directed or from whom it is quarantined.\u201d But the Court\u2019s subsequent decision in Miller v. California<\/em><\/a> clarified what constitutes \u201cobscene\u201d material and thereby removed it from First Amendment protection altogether. (The Miller<\/em> test defines obscenity based on whether the work (1) appeals to the prurient interest under contemporary community standards, (2) depicts or describes sexual conduct in a patently offensive way, and (3) lacks serious literary, artistic, political, or scientific value when taken as a whole.)<\/p>\n\n\n\n

While \u201ccommunity standards\u201d may differ from place to place, it is difficult to maintain that speech could be considered obscene and entirely unprotected \u2013 and therefore subject to total bans \u2013 for one group while still being protected for another, in the same community. This tension led the Court to adopt the term \u201cindecent\u201d (for example, in cases like FCC v. Pacifica Foundation<\/em><\/a>, concerning George Carlin’s \u201cSeven Words You Can Never Say on Television\u201d monologue) to describe material that is constitutionally protected for adults but may be subject to restrictions when it comes to minors. This is how the Court viewed the issues in the Sable<\/em> case: While the government could entirely ban “obscene” dial-a-porn phone calls, it could not entirely ban “indecent” calls, only adopt measures to prevent children from accessing them.<\/p>\n\n\n\n

Bypassing this analysis, the specific test Justice Thomas, writing for the Court, put forth for what is \u201cobscene to minors\u201d now reads: \u201cA State may prevent minors from accessing works that (a) taken as a whole, and under contemporary community standards, appeal to the prurient interest of minors<\/em>; (b) depict or describe specifically defined sexual conduct in a way that is patently offensive for minors<\/em>; and (c) taken as a whole, lack serious literary, artistic, political, or scientific value for minors<\/em>.\u201d Nothing in this standard requires that the material also be indecent (or obscene) for adults. That opens the door to a regime where speech is restricted based solely on how it may be perceived by some undefined subset of minors, regardless of its value or protection for adults.<\/p>\n\n\n\n

This change has potentially serious implications. Once material is labeled \u201cobscene to minors,\u201d it gets diminished Constitutional protection across the board. Texas\u2019 law illustrates how problematic that shift can be. The statute is not a model of clarity or precision. Paraphrasing the Miller<\/em> test, its definition of \u201charmful to minors\u201d is vague and expansive, encompassing content that appeals to the \u201cprurient interest\u201d of minors, is \u201cpatently offensive,\u201d and lacks serious value \u2013 all measured by standards that vary across age groups. But a 7-year-old and a 17-year-old do not share the same developmental stage or capacity to evaluate content. Treating all minors as a single category oversimplifies that reality. And the law is triggered when just one-third of a site\u2019s content falls into this murky zone. That threshold could easily ensnare not just pornography sites but also platforms that provide sexual health information, LGBTQ+ resources, or artistic works that include frank discussions of sex (or even other sensitive topics).<\/p>\n\n\n\n

And the verification methods the law demands are privacy-invasive. Uploading a government ID or financial data to access lawful speech online invites abuse, chilling, and tracking. The Court waves this away with comparisons to showing ID at liquor stores. But what that misses is that the internet is different: a place where people reasonably expect to read, search, and explore anonymously. Forcing users to tie their identities to what they view or read online erodes that expectation. The First Amendment has long recognized that privacy and anonymity are essential components of free expression.<\/p>\n\n\n\n

Justice Kagan\u2019s dissent gets it right: What exactly was wrong with strict scrutiny? It’s a hard test to pass, but not automatically fatal. She writes,<\/p>\n\n\n\n

A law like H. B. 1181 might well pass the strict-scrutiny test, hard as it usually is to do so. As just noted, everyone agrees that shielding children from exposure to the sexually explicit speech H. B. 1181 targets is a compelling state interest. And Texas might be right in arguing that it has no less restrictive way to achieve that goal: It is difficult, as everyone also agrees, to limit minors\u2019 access to things appearing on the internet. If H. B. 1181 is the best Texas can do\u2014meaning, the means of achieving the State\u2019s objective while restricting adults\u2019 speech rights the least\u2014then the statute should pass First Amendment review.<\/em><\/p>\n\n\n\n

But what if Texas could do better\u2014what if Texas could achieve its interest without so interfering with adults\u2019 constitutionally protected rights in viewing the speech H. B. 1181 covers? That is the ultimate question on which the Court and I disagree. <\/em><\/p>\n\n\n\n

Under the previous test of strict scrutiny, the government has to prove, with evidence, that its chosen method is necessary and minimally intrusive. That is why trials and fact-finding matter. Strict scrutiny is not a death sentence: it is a demand for justification. Measures that restrict potentially dangerous app features from children (like live-streaming) might be easier to justify than Texas\u2019 overbroad approach, for instance \u2013 and may not necessarily involve limiting adult access to \u201cspeech\u201d at all. (Similarly, intermediate scrutiny, properly applied, does not necessarily allow<\/em><\/a> <\/em>all burdens on speech. Had the Court more thoroughly examined Texas\u2019 law, it should have found that it \u201cburdens substantially more speech than necessary\u201d even relative to other age-gating laws.)<\/p>\n\n\n\n

Indeed, the Court itself has recognized that some forms of age-gating may pass strict scrutiny. In Sable<\/em>, the Court cited with approval a lower court finding that age restriction methods (the use of credit card, access code, and scrambling technologies) were \u201ca satisfactory solution to the problem of keeping indecent dial-a-porn messages out of the reach of minors,\u201d noting that \u201c[t]he Court of Appeals, after careful consideration, agreed that these rules represented a \u2018feasible and effective\u2019 way to serve the Government\u2019s compelling interest in protecting children.\u201d The Court therefore noted an age-restriction mechanism that allowed adult access while protecting minors was identified as a less-restrictive alternative to a complete ban. Technology and the market have changed, so what technologies today might be considered the least restrictive alternative, that are \u201cnecessary\u201d to protect children from harmful materials, would be different today. But both Kagan and the Court have noted that this is possible under strict scrutiny.<\/p>\n\n\n\n

The Court in Paxton<\/em>, by contrast, forecloses the evidentiary process entirely. By applying only intermediate scrutiny and accepting the state\u2019s justifications at face value, it cuts off the fact-finding needed to determine whether this specific law, which is vague in scope, expansive in reach, and burdensome to privacy, is actually necessary, or whether more precise, privacy-preserving alternatives would suffice.<\/p>\n\n\n\n

The result is a doctrine that lets lawmakers pass vague, sweeping, privacy-compromising laws that burden adult access to speech, so long as they invoke a familiar slogan: \u201cProtect the children.\u201d But constitutional rights do not evaporate when minors are involved. Protecting children is important, but it must be done in a way that respects the rights of adults and the integrity of the First Amendment.<\/p>\n\n\n\n

What, then, is the way forward? The Court has now signaled that it will defer to legislatures that claim to be protecting children, even when those laws restrict access to lawful adult speech and undermine long-held privacy norms. That raises the stakes for legislative and regulatory advocacy. Privacy and free expression advocates can no longer rely on courts to serve as the main check on overbroad or poorly drafted laws. Instead, they must double down on efforts to educate lawmakers, mobilize public opinion, and improve policy. That work is already underway in some states and at the federal level, and it will only become more important.<\/p>\n\n\n\n

This is not cause for resignation. Legislatures can be persuaded. Bad bills can be defeated. In many cases, simply pointing out the privacy and security risks of broad ID-based verification regimes is enough to give lawmakers pause. If not ideal, some age verification methods may be more privacy-preserving than simple requirements to provide a credit card or government ID. Systems based on zero-knowledge proofs or other decentralized credentials may be the least-bad path. Whether such systems are, in fact, effective, feasible, and narrowly tailored is precisely the kind of question that courts applying strict scrutiny should consider. But if the courts no longer ask these questions, it is all the more urgent that policymakers and advocates do.<\/p>\n","protected":false},"excerpt":{"rendered":"

The SCOTUS ruling in Free Speech Coalition v. Paxton opens the door to vague, privacy-invasive restrictions justified under a banner of child protection \u2013 even when those laws restrict access to lawful adult speech.<\/p>\n","protected":false},"author":29,"featured_media":36621,"parent":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[5],"tags":[11,31,14],"class_list":["post-38088","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-insights","tag-content-moderation","tag-free-expression","tag-platform-regulation"],"acf":[],"yoast_head":"\nProtecting Kids Shouldn\u2019t Mean Weakening the First Amendment - Public Knowledge<\/title>\n<meta name=\"description\" content=\"Public Knowledge promotes freedom of expression, an open internet, and access to affordable communications tools and creative works. 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