In the 2004 case Ashcroft v. American Civil Liberties Union, the Supreme Court struck down Congress’s Child Online Protection Act (COPA) for violating the First Amendment. COPA required providers of commercial pornography to place pornographic material behind internet “screens.” Adults could access the pornography by verifying their age, but children, presumably, would be prevented from viewing some of the most objectionable content on the internet.

The Supreme Court sided with pornographers, who claimed that COPA restricted adult access to pornography in violation of the First Amendment. Although Congress and the states could curtail a minor’s access to pornography, the Court reasoned that COPA burdened adult access to porn. Applying strict scrutiny, the Court determined that age verification was unconstitutional because there was a less restrictive alternative, namely, content filtering.

Now twenty years later, with the smartphone social experiment well underway, the Supreme Court has a chance to redo its swing and miss in Ashcroft.

Tomorrow [yesterday] on January 15, the Court will hear oral arguments in Free Speech Coalition v. Paxton — the porn industry’s challenge to H.B. 1181, Texas’s age-verification law. Although the case only concerns Texas’s recent law, the Court’s decision will have far-reaching implications, as over a dozen states have passed similar legislation to counter the widespread harm to children caused by exposure to online pornography. Many of these harms are now well-documented and have received increased media attention in the last several years, even from notable celebrities such as Billie Eilish, Kanye West, Bill Maher, and others who have spoken out about how pornography exposure causes severe problems in children. These problems include addiction, mental health crises, exploitation, exposure to violent sexual content, degradation of women, intimacy problems including impotence, relationship challenges, and child-on-child sexual assaults.

From First Things

Paxton speaks briefly outside the Supreme Court

Listen to oral arguments made before court yesterday. Note Justice Amy Barrett questioning at 0356)