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.

[wnoise]

It is at least a herd of petite authoritarians rather than a giant singular authoritarian leviathan.

(Of course I don't think government needs to enforce "decency" (at least the sexual prudery variety) at all.)

[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

[bye]

If only you could write a coherent and grammatical sentence. There's a start.

[Incunabulum]

If you did that then then it would be harder to use government to indoctrinate.

[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.

[Eugene Volokh]

Well, even we contributors aren't all libertarians; I never took that libertarian loyalty oath. But when it comes to the commenters, we surely don't screen 'em for libertarian purity. Some are more libertarian, some less so, some not at all.

[wnoise]

I can understand people having libertarianism as one principle among many, to be used when nothing else suggests a different result. But why the heck is Josh Blackman still featured, when he's only ever accidentally libertarian?

[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.

[Krenn]

I would have thought that minors have first amendment rights directly proportional to their responsibilities.

If you give a minor a driver's license, you must also recognize that the minor has a first amendment right to research traffic laws, research traffic accidents, to report dangerous traffic situations, to carry some sort of at least limited-capability cell phone or radio while driving, etc, etc.

If you assign a minor to write a report about slavery, you must accept that the minor has a first amendment right to 99% of all readily available knowledge about slavery. You might get away with restricting him from watching bad pornos fictionally set in the antebellum south, but primary source historical written records containing reasonably honest accounts of various sex/breeding/marriage/rape/forced prostitution practices are probably fair game. At least for any minor old enough to have gone through sex ed.

Minors who are more computer literate than their parents or grandparents must have enough free speech rights to actually understand what they're helping their parents or grandparents do. A minor who helps install anti-virus software must be free to research anti-virus software and override, or not, anti-virus software or other related browser restrictions, since he IS the one setting up the browser restrictions.

On the other hand, legally intellectually disabled minors who live in a hole in the ground and are reasonably denied permission to speak with strangers have very little first amendment rights.

For a minor, first amendment is proportional to entrusted responsibility.

[bye]

For a minor, first amendment is proportional to entrusted responsibility.

Wrong legally on 3 counts
1) that would mean there is no legal responsiblity that can be refused by the minor, which is not true
2) That would mean any entrusted responsibility is ipso facto not illegal for the person entrusting to the minor, that is wrong
3) It destroys all meaning of in loco parentis, giving teacher veto power over the parents . we just had a SCOTUS ruling saying that is wrong.

[Krenn]

1). What? of course you can refuse to entrust a responsibility with minor. But if you DO choose to entrust a minor with responsibility, that responsibility must ALSO include enough first amendment discretion to carry the responsibility out.

2). Huh? Of course it can sometimes be illegal to entrust a minor with too much responsibility. Anyone who hands a minor the hotseat in NORAD and gives him full authorization to use nuclear release authority as the minor sees fit needs to be brought up on more charges than I can count. But if someone DID try to do that, it would laughable for them to then claim that of course they didn't also give the minor implied access to all the manuals stored in that room that the minor needed to read in order to carry out the responsibilities he shouldn't have had.

3) Again, no. Teachers can't grant responsibilities that are inconsistent with the level of delegated trust parents have given teachers to then further delegate reasonable level of responsibilities to teens. If a parent authorizes a teacher to teach a teen how to drive, it is unreasonable for the parent to object to the teacher also teaching a teen how to use an otherwise locked cell phone to place a 911 call, in states that permit test-911-calls. That's obviously a free speech component closely related to being a driver in the modern world. On the other hand, if the parent specifically refuses to let their teenager learn how to drive, then an absolute and total cell phone ban in all circumstances might also be reasonably enforceable.

[FivebySixThree]

Well this is one way to insure the predators can keep inserting some of the obscene books recently into the curriculum or available to elementary children. Just claim its their first amendment right to have fisting, salad tossing, and more, in their curriculum

[JoeFromtheBronx]

A concern is when "obscene as to minors" is done in an exaggerated way. There have also been some notable set-up jobs.

Ginsberg v. N.Y. involved a teenager being sent to buy a girlie magazine to set up a prosecution. Later, in Pacifica, a parent purposely exposed a teenager to be able to make a complaint about exposure to George Carlin's routine.

The Internet provides easy access for minors to obtain a lot of quite adult material. Nonetheless, Texas and other states have used the law to go after drag performers and other things that many parents would not mind many of their children viewing.

The term "obscene to minors" does not just mean watching blatant pornography. Adults will have to provide identification here to view more than that. That is one reason to be wary of allowing a lesser test in this case.

Finally, if there is going to be an "obscene to minors" rule, the violent video games decision is somewhat arbitrary. Simple nudity might be enough to block material from minors, while extremely graphic, violent video games are treated differently.

[Incunabulum]

If minors have the same 1st rights as adults it would stand that they have all the other rights to.

Which would make ID verification irrelevant because it would no longer be possible to restrict their access to porn. Or strip clubs. Or firearms. Or voting. Or contracts. Or . . .

[Sarcastr0]

1. No, that doesn't stand to reason.
2. No one is arguing minors have the same 1st Amendment rights as adults.

(I'm pretty sure I agree with the majority here, albeit with similar concerns to Joe above about allowing the creep of what counts as obscene.

But good lord are the puritans buckling their hats around here.)