Age-Gating Access To Online Porn Is Unconstitutional
Arthur T Knackerbracket has processed the following story:
Texas is one of eight states that have enacted laws that force adults to prove their age before accessing porn sites. Soon it will try to persuade the Supreme Court that its law doesn't violate the First Amendment.
Good luck with that.
These laws are unconstitutional: They deny adults the well-established right to access constitutionally protected speech.
Texas' H.B. 1181 forces any website made up of one-third or more adult content to verify every visitor's age. Some adult sites have responded to the law byshutting downtheir services in Texas. The Free Speech Coalition challenged the law on First Amendment grounds, arguing that mandatory age verification does more than keep minors away from porn - the law nanniesadultsas well, barring them from constitutionally protected speech.
The district courtagreedwith the challengers. Laws regulating speech because of itscontent(i.e., because it is sexually explicit) are presumed invalid. Understrict scrutiny, the state must show that its regulation isnarrowly tailoredto serve acompellinggovernment interest. In other words, the government needs an exceptionally good reason to regulate, and it can't regulate more speech than necessary.
The case will turn on what level of scrutiny applies. Protecting minors from obscene speech is a permissible state interest, as the Fifth Circuit court established when itappliedthe lowest form of scrutiny - rational basis review - toupholdthe law. But not all speech that is obsceneto minorsis obsceneto adults. Judge Higginbotham, dissenting from the Fifth Circuit's decision, pointed out that kids might have no right to watch certain scenes fromGame of Thrones- but adults do.
There's just one problem: Adultsdocare about age verification.
H.B. 1181 bars age verification providers from retaining identifying" information. But nothing in the law stops providers from sharing that same info, and people are rightly concerned about whether their private sexual desires will stayprivate. That you visited an adult site is bad enough. Getting your personal Pornhub search history leaked along with your government ID is enough to make even the most shameless person consider changing their name and becoming a hermit.
Texas swears up and down that age verification tech is secure, but that doesn't inspire confidence in anyone followingcybersecurity news. Malware is out there. Data leaks happen.
A bored employee glancing at your driver's license as you walk into the sex shop is not the same thing as submitting to a biometric face scan and algorithmic ID verification, by order of the government, before you can press play on a dirty video. Just thinking about it kills the mood, which may be part of the point.
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