Today's Porn Age Verification Decision Doesn't Consider Minors' First Amendment Rights More Broadly

What are the First Amendment rights of minors? You might imagine two extreme positions:

1. Minors have the same rights as adults. Friendly amendment: Restrictions on their rights have to be judged under the same tests (such as "strict scrutiny") applicable to restrictions on adults' rights, even if the tests might sometimes practically play out slightly differently for minors and for adults.
2. Minors have basically no First Amendment rights, just as they have basically no Second Amendment rights, no constitutional right to marry, and no constitutional right to choose to have sex (even though Lawrence v. Texas has held that adults do have sexual autonomy rights). Friendly amendment: Minors only have a constitutional right to access speech through their parents' express choices (e.g., when a parent buys the minor a book or a video game).

But it turns out that the Court hasn't accepted either of those positions (though Justice Thomas in the violent video game case, Brown v. Entertainment Merchants Ass'n (2011), dissented in an opinion that adopted a version of the amended position 2).

Rather, the Court has recognized a historically founded exception for material that's obscene as to minors, under which minors can be denied access to certain kinds of sexually themed speech. But the Court has declined to extend this exception, even just to violent video games (see the majority opinion in Brown).

Setting aside sexually themed material, minors thus appear to have much the same rights as adults. And nothing in today's Free Speech Coalition v. Paxton opinion affects that. We have position 1 for most speech, but position 2 for sexually themed speech.

How the First Amendment deals with minors is of course important for deciding whether the various state laws that try to limit minors' access to social media are constitutional. It's possible that some such laws might yet be upheld, especially to the extent that they are content-neutral. But Free Speech Coalition v. Paxton doesn't seem likely to be of help to those who are defending those laws.

Comments

[AmosArch]

Hear me out. I think I hit upon a fantastic solution. Maybe instead of the government intruding on people's private lives in order to allegedly protect minors. Maybe we could have a role in society. Taken by an older person. Who is related by blood or if you want by choice vetted by the government who watches over minors. Full time when they are not otherwise in an community institution like school. They live together so the child has constant guidance and vigilance. Funding and control of the material possessions of the minors including phones and computers goes through these people so access objectionable material can easily be controlled. Heck make it two people in this role looking out for each child. Let's really cover our bases. Shouldn't be a herculean task for two older stronger people with complete control over the media access of a little child to prevent the delicate little flower from binging extreme porn all day.

Unless they are both complete incompetents who are so lazy they demand to abdicate everything it means to live. Even shaping their own flesh and blood progeny to distant bureaucrats.

[Stupid Government Tricks]

Now you're just making stuff up. No way would that ever work.

[Sarcastr0]

Rather than a broad government structure we should insist everyone use this other much more specific structure!

We would need to enforce that of course. Probably just by shitposting a lot.

[AmosArch]

So you agree with the majority here?

[Sarcastr0]

Legally, I do.

But my point is paeons to the family as the way to enforce decency is either toothless or more authoritarian than the alternative.

[wvattorney13]

So if you see a 4 year old drinking a beer and smoking a cig, then no worries and none of your business because his parents are surely around somewhere?

This decision isn't breaking new ground. States could always ban this content to minors.

[AmosArch]

drinking beer and smoking cigs are arguably far more harmful than seeing a pair of tits.

Parental irresponsibility shouldn't be a blank check to run roughshod over everyone elses rights. 'Think of the children' is an extremely dangerous tool that has been used to justify the worst authoritarian overreach (on both sides). And this is just another example. When the far left and the far right join forces on something you know it will very likely be very bad news.

Unlike beer and cigs there is a strong social stigma against porn which when combined with technical incompetence that has companies regularly spilling out PI to every hacker in the world makes laws like this effectively significant infringements on adults rights to access the speech and expression they want to see. Its a technical endrun around the First Amendment. Of course supporters know this since their real goal is to ban porn outright for everyone.

[Stupid Government Tricks]

That's your best counter? How many parents let their 4-year-olds smoke and drink, or would if government weren't looking over their shoulder?

If parents really wanted to do that, they'd do it inside and no one would ever know.

[Rossami]

States can ban that. That doesn't mean they should. Amos is making a normative statement that parents are generally better parents than government.

[Supremacy Claus]

The age of majority is another lawyer fiction. The only thing that happens at 18 is the start of lifelong deterioration of at least 1.5% of all body functions each year.

Nature defines adulthood at 14. The mainstream religions have their welcome to adulthood rituals around that age. For 10000 years of human civilization, people learned a trade at 12, and hit the road at 14. They got married at 16. Maturity does not come from the passage of time. It comes from experience, pain, failure, and learning from them. High school is a scam, that delays the entry of superior people into the job market to compete with the inferior lawyer client.

School should move at least 2 years ahead, as it is in Europe, Singapore, China. After the 4th grade kids study 6 AM to 10 PM, including during lunch. They are not learning by rote. They are learning creative problem solving. They should have a 10th grade education ending in the 8th grade.

All people age 14 should get their occupational education, including the professions. If one must memorize a 1000 page book every 12 weeks, then people age 16 will do a far better job than a 24 year old. This change will be the only hope for our US economy.

Even this idea may now be obsolete. Did you see the Quicken commercial where a little girl, around age 7, has a beautiful pony with a long white mane in her room? Her father asks where it came from. She says, from investing.

https://www.youtube.com/watch?v=iWqVV__5igw

[Krayt]

Ya know how gun rights folks all know gun registration will some day be used to round up guns regardless how much current politicians swear it won't? Same thing for registering yourself for porn.

[thenotoriousrbg]

many commenters here would champion the idea of rounding up such "degenerates." libertarianism is not much in vogue on this libertarian law blog.

[wvattorney13]

This is what I inarticulately said in the other thread. "Obscene as to minors" seems to be in a category all its own.

[IANNAL]

"Today's Porn Age ...."

I keep reading this sentence structure as if it were a reference like "Atomic Age" or "Gilded Age." Maybe that's something like what Bob from Ohio is saying in the other thread.