The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
How Should Courts Analyze Age Verification Requirements for Porn That's Illegal for Minors?
Prohibiting the distribution of porn to minors, the Court says, legitimately carries with it some burdens on adults as well, when the burdens are closely linked to distinguishing the adults and the minors.
The majority in today's Free Speech Coalition v. Paxton began with the established principle (see Justice Brennan's majority opinion in Ginsberg v. N.Y. (1968)) that certain material may be constitutionally protected for adults but unprotected when distributed to minors:
When regulating minors' access to sexual content, the State may broaden Miller's "definition of obscenity" to cover that which is obscene from a child's perspective. To be more precise, a 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; (b) depict or describe specifically defined sexual conduct in a way that is patently offensive for minors; and (c) taken as a whole, lack serious literary, artistic, political, or scientific value for minors. [The Miller definition for what can be prohibited even for adults would omit the italicized text from each prong of the test. -EV] …
The majority acknowledged that any age verification requirements "burden" the rights of adults in some measure—whether of the adult distributors (such as the vendor in Ginsberg) who must check patrons' age, or of adult patrons who have to prove their age. But it concluded that, because the speech was restrictable as to children, sufficiently narrow age verification requirements need not be judged under the highly demanding "strict scrutiny" test:
Age-verification laws like H.B. 1181 fall within States' authority to shield children from sexually explicit content. The First Amendment leaves undisturbed States' traditional power to prevent minors from accessing speech that is obscene from their perspective. That power necessarily includes the power to require proof of age before an individual can access such speech. It follows that no person—adult or child—has a First Amendment right to access speech that is obscene to minors without first submitting proof of age….
Requiring age verification is common when a law draws lines based on age … [citing as examples] proof of age to obtain a handgun license; to register to vote; and to marry. In none of these contexts is the constitutionality of a reasonable, bona fide age-verification requirement disputed.
Obscenity is no exception to the widespread practice of requiring proof of age to exercise age-restricted rights. The New York statute upheld in Ginsberg v. New York (1968) required age verification: It permitted a seller who sold sexual material to a minor to raise "'honest mistake'" as to age as an affirmative defense, but only if the seller had made "'a reasonable bona fide attempt to ascertain the true age of [the] minor.'" Most States to this day also require age verification for in-person purchases of sexual material. And, petitioners concede that an in-person age verification requirement is a "traditional sort of law" that is "almost surely" constitutional.
The facts of Ginsberg illustrate why age verification, as a practical matter, is necessary for an effective prohibition on minors accessing age-inappropriate sexual content. The statute in that case prohibited the knowing sale of sexual content to a minor under the age of 17. The defendant was convicted of knowingly selling a pornographic magazine to a 16-year-old. But, most of the time, it is almost impossible to distinguish a 16-year-old from a 17-year-old by sight alone. Thus, had the seller in Ginsberg not had an obligation to verify the age of the purchaser, he likely could have avoided liability simply by asserting ignorance as to the purchaser's age. Only an age-verification requirement can ensure compliance with an age-based restriction.
The need for age verification online is even greater. Unlike a store clerk, a website operator cannot look at its visitors and estimate their ages. Without a requirement to submit proof of age, even clearly underage minors would be able to access sexual content undetected. "'[T]he basic principles of freedom of speech … do not vary' when a new and different medium for communication appears." Because proof of age performs the same critical function online that it does in person, requiring age verification remains an ordinary and appropriate means of shielding minors in the digital age from material that is obscene to them….
Instead, the majority concluded that it ought to apply the "intermediate scrutiny" that's usually used for content-neutral restrictions on speech or conduct; though this particular law did indeed turn on content, the Court concluded that in this instance that content classification shouldn't preclude applying intermediate scrutiny:
Because H.B. 1181 simply requires proof of age to access content that is obscene to minors, it does not directly regulate the protected speech of adults….. On its face, the statute regulates only speech that is obscene to minors. That speech is unprotected to the extent the State seeks only to verify age. And, the statute can easily "be justified without reference to the [protected] content of the regulated speech," because its apparent purpose is simply to prevent minors, who have no First Amendment right to access speech that is obscene to them, from doing so….
Any burden experienced by adults is therefore only incidental to the statute's regulation of activity that is not protected by the First Amendment. That fact makes intermediate scrutiny the appropriate standard under our precedents.
In this respect, H.B. 1181 is analogous to the prohibition against destroying draft cards that this Court upheld in U.S. v. O'Brien (1968). The prohibition may have had the effect of making it unlawful to protest the draft by burning one's draft card. But, the "destruction" of a draft card is not itself "constitutionally protected activity," because the card is a Government document that, among other functions, serves as proof of registration. The prohibition on destroying draft cards thus placed only an incidental burden on First Amendment expression, making it subject to intermediate scrutiny. So too here, because accessing material obscene to minors without verifying one's age is not constitutionally protected, any burden H.B. 1181 imposes on protected activity is only incidental, and the statute triggers only intermediate scrutiny….
We agree that H.B. 1181 targets speech that is obscene for minors based on its communicative content. But, where the speech in question is unprotected, States may impose "restrictions" based on "content" without triggering strict scrutiny. Because speech that is obscene to minors is unprotected to the extent that the State imposes only an age-verification requirement, H.B. 1181's content-based restriction does not require strict scrutiny. The law is content based in the same way that prohibitions of "defamation," "fraud," and "incitement" are….
When speech has both protected and unprotected features, … "the unprotected features of the [speech] are, despite their [communicative] character, essentially a 'nonspeech' element" for purposes of the First Amendment. R.A.V. v. St. Paul (1992). With that principle in hand, H.B. 1181 fits comfortably within the O'Brien framework: The law directly regulates unprotected activity (accessing material that is obscene to minors without submitting to age verification) while only incidentally burdening protected activity (ultimately accessing that material)….
[A]s we have explained, the First Amendment leaves undisturbed States' power to impose age limits on speech that is obscene to minors. That power, according to both "common sense" and centuries of legal tradition, includes the ordinary and appropriate means of exercising it. And, an age-verification requirement is an ordinary and appropriate means of enforcing an age limit, as is evident both from all other contexts where the law draws lines based on age and from the long, widespread, and unchallenged practice of requiring age verification for in-person sales of material that is obscene to minors….
The defendant in Ginsberg, after all, was an adult vendor of pornography, not an underage purchaser. It would be difficult, practically speaking, for States to restrict children's access to pornography without regulating adult vendors. And, Ginsberg accordingly held that New York's content-based restriction on the rights of adult vendors triggered only rational-basis review. Thus, so long as the dissent accepts Ginsberg, it cannot deny that the question before us is which content-based regulations States may impose on adults without triggering strict scrutiny, not whether they may do so.
The majority also concluded that applying strict scrutiny here would unduly dilute its force in other areas, where this connection to constitutionally unprotected speech is absent. (See this post for more on that.) It added,
Petitioners would like to invalidate H.B. 1181 without upsetting traditional in-person age-verification requirements and perhaps narrower online requirements. But, strict scrutiny is ill suited for such nuanced work. The only principled way to give due consideration to both the First Amendment and States' legitimate interests in protecting minors is to employ a less exacting standard….
The dissent (by Justice Kagan, joined by Justices Sotomayor and Jackson) disagreed:
H.B. 1181 imposes … burdens on protected speech [for adults] based on the speech's "communicative content," making it a quintessential content-based law. {[The burden] may be smaller or larger—compare flashing ID in a store with (in the majority's own example) having to produce "an affidavit from [a] biological parent." It may be a simple inconvenience or it may … prevent individuals from exercising the right. And those differences may well matter to the conclusion when a court gets around to applying the appropriate constitutional standard. But regardless, an age verification mandate burdens an adult's First Amendment protected right in viewing obscene-for-children expression.}
A statute, we have often said, is content-based on its face when it "draws distinctions" based on the "topic," "subject matter," "idea," or "message expressed." … If the website has the requisite sexually explicit content, the regulation kicks in. Alternatively, if that content is absent (if, say, the website focuses on politics or sports), the regulation does not….
A statute tries to cut off children's access to sexually explicit speech, in line with the most worthy objectives. But the statute as well impedes adults' access to that speech, which the First Amendment protects. And the statute does so by drawing content-based lines: Sexually explicit speech is burdened, other speech is not. It follows, as the night the day, that strict scrutiny applies—that the statute, in addition to serving a compelling purpose, can restrict only as much adult speech as is needed to achieve the State's goal….
The majority tries to escape that conclusion with a maneuver found nowhere in the world of First Amendment doctrine. It turns out, the majority says, that the First Amendment only "partially protects" the speech in question: The "speech is unprotected to the extent the State seeks only to verify age." Meaning, the speech is unprotected to the extent that the State is imposing the very burden under review. Or said another way, the right of adults to view the speech has the burden of age verification built right in.
That is convenient, if altogether circular. In the end, the majority's analysis reduces to this: Requiring age verification does not directly burden adults' speech rights because adults have no right to be free from the burden of age verification. Gerrymander the right to incorporate the burden, and the critical conclusion follows. If only other First Amendment cases were so easy!
Still, the majority must make one more move to square the circle of all it has said. Recall that notwithstanding the above, the majority has conceded that "[a]dults have the right to access" obscene-for-children speech and age verification schemes are "a burden on the exercise of that right." To account for that concession in its analysis—and yet avoid strict scrutiny, as it wishes—the majority relies on a well-known distinction in First Amendment law between direct and incidental restrictions on speech.
Says the majority: The "burden experienced by adults" as a result of H.B. 1181 is "only incidental to the statute's regulation of activity that is not protected by the First Amendment." Or more fully (prepare for a mouthful): "The law directly regulates unprotected activity (accessing material that is obscene to minors without submitting to age verification) while only incidentally burdening protected activity (ultimately accessing that material)." And because the burden imposed on adults' right to access the materials is only incidental, the majority concludes, only intermediate scrutiny need apply. To back up that view, the majority relies (exclusively) on United States v. O'Brien (1968).
O'Brien actually seems a good place to start in explaining why H.B. 1181 is not an incidental restriction under our law. In that case, a war protester who burned his draft card was charged with violating a statute that made it a crime for anyone to "knowingly destroy[]," "mutilate[]," or "change[]" draft registration documents…. That law, the Court explained, prohibited all alterations of draft cards, indifferent to whether they were "public [or] private," expressive or non-expressive. So the "limitation[] on [O'Brien's] First Amendment freedoms" was purely "incidental." …
[But H. B. 1181] is not a regulation of conduct that just so happens, on occasion, to impinge on expressive activity. It is instead a direct regulation of speech, triggered by the amount of sexually explicit expression on a commercial website…. Rather than address the "noncommunicative" aspects of an activity … H.B. 1181 regulates (and regulates only) what no one here disputes are communicative messages….
The burden H.B. 1181 imposes, of course, raises constitutional concerns only for adults. But that fact does not make the law any less a direct, not incidental, restriction on protected expression. H.B. 1181 targets communicative content, and that alone—restricting adults' access to speech because of what it portrays, rather than because of any non-communicative element that it possesses….
Aaron Nielson, Texas Solicitor General, argued on behalf of the state.
