OPINION:
Lawmakers in almost 20 states have acted to protect children from the explosion of online porn. Has yours?
One popular approach requires internet users to verify their adult age before accessing harmful sexual material. Many of these new laws give parents the right to sue commercial websites that fail to require age verification and thus “accidentally” expose kids to porn. In two states, parents may sue websites that publish illegal (think: child porn) pornographic content.
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These lawmakers are putting kids first, despite the bewildering opposition of some out-of-touch “free speech” advocates. Advocates claim this legislation violates the U.S. Supreme Court’s modern First Amendment decisions.
As we know from the Dobbs case overturning Roe v. Wade, as well as the recently decided Loper Bright case, the current Court is willing to chart a different course: a course more in line with the actual history and tradition of our country. Given the growing dangers faced by children in the internet age, the Justices may well clarify their precedents to more closely align with the original understanding of the First Amendment.
Recognizing this, porn apologists are increasingly taking refuge in the proposal that requiring age verification is bad public policy. They say good parents will protect their children from online dangers. And if parents don’t or can’t protect their children from online porn? The free speech absolutists say, “Tough.” They say protecting kids isn’t worth the small risk that a porn website might have a data breach that would reveal a user’s identity.
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Set aside that age verification is technically sound and raises little risk of exposing the actual identity of the adult user. Does the adult user’s “right” to do something online trump a child’s right to innocence? Do children have no rights? Or is there a way to balance these competing interests?
The First Amendment was meant to preserve the free exchange of ideas. It was not intended to shield harmful sexual conduct from public shame, especially if the price is the sexualization of children.
For the first 175 years of our country’s history, legal restrictions on graphic sexual material coexisted in harmony with robust free speech protections. As late as 1947, fresh off our nation’s triumph over the book-burning Nazis, the U.S. Supreme Court observed that the prevention and punishment of “lewd and obscene” speech “have never been thought to raise any constitutional problem.” The “Greatest Generation” knew well the difference between reasoned arguments and sex pics. The former appeals to the intellect, and the latter to base urges. A social media post arguing about the issue of the day is categorically different from an XXX pornographic video.
The porn pushers say parents can protect their kids with content filters or by not letting kids use cell phones. Is that practical? No matter how hard parents try, it is nearly impossible to keep porn out of kids’ hands. Parents are just too far downstream. They cannot monitor kids, especially teens, 24/7. They cannot prevent them from being exposed to porn at school or at a friend’s house where the parents are less vigilant. Besides, preventing your own children from accessing porn won’t save them from a fractured adult relationship with an abusive spouse who grew up addicted to porn.
Some harms are best prevented upstream, at their source. Consider a factory belching pollutants tolerable for adult lungs but deadly to children. Would we permit that because parents could just make their kids wear a mask? No, we’d stop the problem at its source.
It has always been standard practice to require adult identification before entering peep shows, porn theaters, strip clubs, and the like. There is no good reason adult identification should not be required to access porn online.
The porn companies and their lobbyists are not truly fighting for free speech or limited government. They don’t believe adult pornography is an evil that must be tolerated lest the government grow too intrusive. They think porn is good. Under the guise of free speech, they would enshrine in the Constitution a right to engage in harmful sexual conduct with zero risk of shame. These are not free-speech saints seeking the preservation of time-honored freedoms. They are vice-mongers willing to harm children for profit, to the tune of over $1.1 billion a year by some estimates.
We can both protect kids and preserve the First Amendment. Don’t be taken in by those who push a false free speech doctrine for profit. However ardently the porn pushers try to deceive us, the Constitution is not a devil’s bargain. It does not require us to choose between our freedom and our children. For those lawmakers who haven’t passed age verification legislation because of the porn lobby, it’s time for voters to ask, “Whose side are you on?” It certainly isn’t the First Amendment.
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Trey Dellinger is a senior legal fellow with AFA Action and chief of staff for former Mississippi Speaker Philip A. Gunn.
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