Thoughts on the Free Speech Coalition v Paxton Porn Age-Verification Case

Probably not great for free speech...

On Friday June 27, The US Supreme Court (SCOTUS) upheld a Texas law requiring age verification for access to porn sites such as Pornhub. It’s a “no brainer” to prevent minors from accessing porn, just on moral grounds, whether or not it “harms” them (which is a more controversial claim). Yet requiring age verification online requires revealing one’s identity online and, with data breaches, there have been significant concerns that such policies would “chill” adult access to constitutionally protected speech. There are also questions about whether such policies either work to actually stop youth from accessing porn or, even if they did work, protect youth in any meaningful way. Until this recent decision in Paxton v Free Speech Coalition, “settled law” (a term that has very little real meaning) was that such age verification laws were unconstitutional. Now they are, well, not…

Not surprisingly, anti-porn crusaders are very happy, and free speech advocates are not happy at all. Here are my thoughts, in no particular order, about this SCOTUS decision:

1. Few people, at least on moral grounds, are going to argue on behalf of minors accessing porn. We all recognize kids can’t buy Playboy magazines at the newsrack. But unlike said newsrack, age-verification online potentially carries risk to adults and this may (quite likely by design) intimidate adults out of accessing speech they are entitled to.

2. At issue is that people tend to be embarrassed about using porn, or perhaps worry about threats to their job or home life should their porn habits be revealed. I’d assume many anti-porn crusaders would think “Good!”, but that’s not how free speech works. Age-verification basically involves proving your identity online, either directly or through a third-party vendor. Some of these vendors promise they won’t keep a lasting record, but if you believe that there won’t be embarrassing data-breaches that will do real damage to some people’s lives, then I’ve got a bridge to sell you in Brooklyn.

3. Much of censorship comes in the guise of “protect the children” narratives. The strategy is to get a foot in the door with low-hanging fruit, then once the precedence is set, expand it to more and more speech, and possibly not just for minors.

4. Anti-porn crusaders have been outright explicit about using exactly this strategy. Many sites such as Pornhub are pulling out of states with age-verification laws entirely. As Republican operative Russell Vought admitted on a hidden camera “[This] is entirely what we were after…We're doing it from the back door. We're starting with the kids," …We'd have a national ban on pornography if we could, right? So, like, we would have, you know, the porn companies being investigated for all manner of human rights abuses." There’s already a federal bill to redefine obscenity to basically include all porn, including nudity, which would remove constitutional protections. As it goes, when people tell you what their plan is outright: believe them. Banning consenting porn and maybe an even wider array of speech for adults is the end goal here folks.

5. If the goal is to protect minors, it’s not clear that age verification will work. SCOTUS’ ruling only applies to US websites, so kids will just get porn form sites in, say, Russia or Cambodia or wherever¹. These sites may actually be worse, possibly including child porn or other awful content. Or kids will just learn to use VPNs to hide their location².

6. It’s also not clear such laws, even if they were effective in blocking youth access to porn, would help kids in any meaningful ways. Despite the worst fever dreams of anti-porn crusaders, finding evidence even that early porn viewing is associated with negative outcomes has been controversial at best. That’s why I generally suggest we keep our moral qualms (which I don’t object to) and our scientific claims (which tend to devolve quickly into nonsense) separate.

7. In fact, key to the SCOTUS decision was reducing the state’s burden to prove either that their legislation was necessary or effective. Basically, SCOTUS reduced the burden of evidence from “strict scrutiny” to “intermediate scrutiny”. I’m not a lawyer, but this basically means that the courts will have to show more deference to the legislatures in assuming they know what they are doing, which is a huge assumption. But it’s worth pondering…in order to get this legislation to stick, the state basically had to ask SCOTUS for permission not to be bothered to show it was needed or effective.

8. As an NBC news story pointed out, the anti-porn crusade has gained remarkable momentum in just the last 10 years. This has included the usual hard-right conservatives, far-left radical progressives, but also manosphere influencers. I think all three of these groups veer toward the looney and certain none are terribly concerned with scientific objectivity. Yet they are now driving the train.

9. I hate to say it, but I do think the Free Speech Coalition made serious mistakes. Primary among them was not more rigorously challenging the pseudoscience claims often made about porn. An amicus brief of scholars may have helped³.

10. Then again, maybe it wouldn’t have. Some of the judges appeared to be quite attached to fluffy but morally sanctimonious certainties about porn addiction and whatnot, despite little evidence such things exist (porn addiction is not an official diagnosis). They also seemed rooted in nostalgia bias. Probably the game-changer for porn was not the present but the 1990s, when free internet porn became widely available⁴. Strangely, some of the judges seemed to miss the days of what I call the “Golden Age of Porn.” There’s little evidence that youth access to porn is worse today than, say the late 1990s when SCOTUS last ruled against age-verification laws. But at least some of the judges were deeply entrenched in this faulty assumption.

11. Like many moral panics, a lot of decisions are based on “feels” rather than data. In this case we had judges themselves spouting nonsense, but those “old dudes and dudettes waving their canes” effect had real impacts on free speech.

12. Much of the legalese focuses on “harm” which appears to mean nothing at all, since states have a reduced burden to prove any such thing. Harm appears to equate to adults’ moral dis-ease in a form of media. Having moral unease about something is fine, but it is distinct from “harm”.

13. The one silver lining is that the law in question appears to be limited to material “obscene to minors” which explicitly refers to sexual material. Granted, there are real concerns about whether this could be extended to, say, sexual education materials, or LGBT websites. Given how many among those far-right/radical feminists/manosphere folks find at least some of this stuff to be “obscene” though those groups may worry about different aspects (lesbian feminists may worry about trans stuff, for instance), I expect to see this ruling used as precedent for expanding censorship.

14. Whether is could be used for non-obscene media such as smartphones and social media is less clear. I think the backdoor here will be “but there’s porn there too!” We’ll see.

15. Much of this kicks decision-making back to legislatures. However, rational decision making among legislative bodies is pretty poor. Further, given the social stigma around porn, no politician is going to want to defend porn publicly, whatever the evidence may or may not be. This likely explains why anti-porn “public health” bills have been proposed even in blue states like my home state of Rhode Island.

16. Conservatives have now fully seized the cultural initiative. That’s a remarkable turnaround from even 5 years ago. To be fair, I actually have agreed with the current SCOTUS on many issues where progressives did overreach (Affirmative Action and the recent “reverse discrimination” case in particular). But conservatives have always been really, really bad on free speech. We may now see the consequences of giving them free reign.

17. This is a good reminder that nothing is forever. Just as Roe v Wade seemed to be “settled law” for decades, only to be reversed by this SCOTUS, so was the issue of age-verification “settled” until it wasn’t.

18. It’s worth remembering again, that this SCOTUS claimed “this is necessary because things are different now” then explicitly ruled that the state had a reduced burden to prove any such thing.

19. Of course, these laws do set up some interesting, testable hypotheses! Are these laws associated with reduced youth access to porn, and does that correlate with improved mental health? Let’s get going on that with some rigorous, preregistered studies, using robust Smallest Effect Sizes of Interest (SESOI) of at least r = .10,…honestly, for testing public policy with free speech implications, I’d argue for using my “clinical significance” standard of r = .20⁵.

Ultimately, I suspect this case is a disaster for free speech and unlikely to help youth in any way. But I’ll be curious if we get some robust studies on any benefits or lack thereof (we’ll probably get some rubbish studies too, so look for those preregistrations and SESOI).

1. And yes the kids are actively searching for it. Anti-porn advocates like to pretend that exposure is accidental, but it’s mostly not.

2. But I guess teaching kids how to use tech is a good outcome?

3. The state did have an amicus brief of a few scholars with a history of moral crusading. That brief was filled with nonsense and could have been easily countered, but sadly that didn’t happen.

4. And which was actually associated with declines in rape and domestic violence.

5. Unfortunately, I expect a lot of garbage research too, both because so much social science is trash, and so many social scientists like to think of themselves as moral crusaders, too often coming from the hall-monitor set.