The Volokh Conspiracy
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S. Ct. Will Decide: May States Require Age Verification to Access Porn Sites?
The Court just agreed to hear this case, Free Speech Coalition v. Paxton. You can read the majority and dissenting opinions in the Fifth Circuit here, and the petition, response, and reply here. Here's the issue in a nutshell:
1. Ginsberg v. N.Y.(1968) held (in a majority opinion by Justice Brennan) that states may ban sales to minors of pornographic material that's "obscene as to minors" (even if it's fully protected for adults). This meant that stores and theaters that wanted to sell or exhibit such material would have to make "a reasonable bona fide attempt to ascertain the true age of" young-seeming patrons, even though that would of course in some measure affect the rights of adults (who might, for instance, be required to show identification cards, and thus lose part of their privacy). In the process, the majority applied the highly deferential "rational basis" test, though only after it essentially concluded that the law fell within a recognized First Amendment exception.
2. Ashcroft v. ACLU (II)(2004) upheld (in a majority opinion by Justice Kennedy) a preliminary injunction against enforcement of a federal law that required credit card or age verification for commercial online distribution of such "obscene as to minors" material. The majority concluded that the law burdened the rights of adults, and that the government hadn't shown that other alternatives (such as filtering) would be inadequate for protecting children. In the process, the majority applied the highly undeferential "strict scrutiny" test, and didn't discuss Ginsberg.
The core question is which approach is right for these kinds of restrictions aimed at shielding minors from pornographic material. (There's a lot more to the question, of course, which you can learn about from the opinions below.)
By the way, here's some more background detail on the "obscene-as-to-minors" category (also known as the "harmful-to-minors" category) and how it fits within First Amendment law more generally:
I. Obscenity: The Supreme Court has held that the First Amendment does not protect the distribution of "obscenity," a narrow category that basically covers hard-core pornography. To be obscenity, a work must satisfy all three of the following elements, largely drawn from Miller v. California (1973):
- "the [a] average person, [b] applying contemporary community standards, would find that the work, [c] taken as a whole, [d] appeals to the prurient interest,"
- "the work depicts or describes, [a] in a patently offensive way [under [b] contemporary community standards, Smith v. U.S. (1977)], [c] sexual conduct specifically defined by the applicable state law," and
- "the work, [a] taken as a whole, [b] lacks serious [c] literary, artistic, political, or scientific value[, [d] applying national standards and not just community standards."
Note also that, (4) mere private possession of obscenity can't be constitutionally outlawed, though distribution and even transportation for one's own private use may be. See Stanley v. Georgia (1969); U.S. v. Orito (1973).
II. Child Pornography: The Supreme Court has also held that the First Amendment does not protect the distribution or possession of "child pornography," which basically covers
- "visual[] depict[ions]" of
- actual children below the age of majority (and not just fictional pictures or pictures of adults who look like children)
- "performing sexual acts or lewdly exhibiting their genitals."
See New York v. Ferber (1982); Ashcroft v. Free Speech Coalition (2002).
III. Distribution of Sexually Themed Material to Minors: The Court has held that the law may bar distribution to specific minors of sexually themed material, even if the material doesn't fall within the above exceptions. The test for such unprotected "obscene-as-to-minors" material is basically the Miller test (see item I above), with "of minors" or "for minors" added to each prong (e.g., "the work taken as a whole, lacks serious literary, artistic, political, or scientific value for minors"). Ginsberg v. New York (1968), a pre-Miller case, upheld a law that implemented the then-current obscenity test with "to minors" added at the end of each prong; most lower courts and commentators have assumed that Ginsberg plus Miller justify laws that implement the Miller-based test given above.
IV. Public Display of Sexually Themed Material, Where Minors and Offended Viewers Might See It Alongside Willing Viewers? It's not clear to what extent the government may bar this, at least assuming the material fits within the obscene-as-to-minors framework described in item III—the Court has struck down limits on Internet distribution of such material, but lower courts had upheld limits on non-Internet distribution and display, for instance through coin-operated newsracks. The Supreme Court has also strongly suggested that the display of such material—including mere nudity and not just obscene-as-to-minors material—on broadcast television is constitutionally unprotected.
V. Pornography More Generally: Sexually themed material that fits in none of the above categories is constitutionally protected, though the "erogenous zoning" cases allow greater regulations of—though generally not total bans on—bricks-and-mortar businesses, such as theaters and bookstores, that distribute pornographic material to walk-in customers.
