Texas law aims to help parents keep kids from porn. What will Supreme Court say? | Opinion

In 1964, Supreme Court Justice Potter Stewart decided not “to define the kinds of material” that would constitute “hard-core” pornography.

Instead, he famously wrote, “I know it when I see it.”

Sixty years later, we know obscene material when we see it, because we see it all the time — all over the internet.

It’s accessible at the click of a button on a device of your choosing.

It’s available to effectively everyone, including, the youngest members of society — the ones whose eyes and minds we have a responsibility to protect.

Porn’s ubiquity is in no small way due to the ascendance of what has become a $100 billion industry, awash in both professionals and at-home creators, with a powerful lobbying arm and the support of organizations such as the ACLU.

The porn industry’s sizable influence aside, it was easy to miss (with all the inauguration buzz) that its cynically named interest group, the Free Speech Coalition, challenged Texas’ age-verification law before the U.S. Supreme Court.

Texas’ attempt to prevent children from accessing explicit content on the internet, the group contended, violates the First Amendment rights of adults.

The law, passed and signed in 2023, requires adult entertainment websites to employ measures such as the submission of government-issued IDs, to help ensure that only adults are accessing explicit material.

As with tobacco or alcohol, that seems a reasonable accommodation for producers or suppliers to make. Adult entertainment, after all, should be for adults only.

The statute is not exceptional, either. Texas is one of 19 states that require such assurances from internet porn providers.

And as courts have affirmed for decades, protecting children from accessing explicit content is a compelling interest of the state.

But such a requirement, porn industry lawyer Derek Shaffer argued, places an undue burden on adults who should be allowed to view online porn without limitation.

That burden, he insisted, should fall primarily on parents and content-filtering software, which Shaffer declared is technologically better than ever and widely available.

It may be true in theory that content filters are the best they’ve been, but in a world where nearly half of 10-year-olds and more than two-thirds of 12-year-olds have smartphones, that’s cold comfort.

That’s not to mention the tablets, gaming consoles and laptops to which most kids have access and through which adult content is also readily accessible.

“Let me just say that content filtering for all those different devices, I can say from personal experience, is difficult to keep up with,” said Justice Amy Coney Barrett, in a sentiment to which most parents can relate.

Even the best content-filtering software today will be outdated tomorrow, assuming it stands up to tech-savvy teens, most of whom are light years ahead of the software companies, to say nothing of their parents.

One thing is certain: Parents need more help, and not just in the form of software.

Schaffer contended that one of the biggest problems with the Texas law is the privacy concerns created by having to enter identifying information in order to access a website.

“You’re creating a permanent record on the internet when you provide this information that is being collected. It is a target for hackers,” he said, adding that there have been hacks of age verification providers (who under the Texas law are not permitted to retain identifying information).

But, as Justice Samuel Alito aptly responded, “there have been hacks of everything.”

In the digital age, is online anonymity even a realistic expectation anymore?

The lack of anonymity, though, has what Schaffer calls a chilling effect on consumers, which he seems to believe is the intent of the law in the first place — to reduce porn consumption more broadly.

In that last regard, he is probably right, and deserving of no sympathy for it.

We know from ample research that regular pornography consumption can have manifold deleterious effects: addiction; emotional, mental and moral health problems; and a negative impact on intimate relationships. It can even promote harmful sexual behaviors.

Those problems are present in adults but are compounded when the consumer’s mind is still developing.

It’s a safe assumption that the porn industry is aware that filters frequently fail, just as it’s probably safe to assume that porn producers are aware that a large number of their viewers are underage.

It gets tricky when high moral standards start affecting the bottom line, though.

“Do you dispute the societal problems that are created both short-term and long-term from the rampant access to pornography for children?” Justice Brett Kavanaugh asked.

For Shaffer, that was “a complicated question.”

But really, it’s not.

Protecting children from explicit material that everyone — even the porn industry — acknowledges they should not be viewing, is as uncomplicated as you can get.

We’ll see if the Supreme Court agrees.