The Online Porn Free-for-All Is Coming to an End
Three decades into the internet era, the Supreme Court finally appears ready to uphold age-verification laws.
www.theatlantic.com
The Online Porn Free-for-All Is Coming to an End
Three decades into the internet era, the Supreme Court finally appears ready to uphold age-verification laws.
By Marc Novicoff
Illustration by The Atlantic. Sources: Carkhe / Getty; Atlas Studio / Getty.
January 22, 2025, 7 AM ET
Produced by ElevenLabs and News Over Audio (Noa) using AI narration. Listen to more stories on the Noa app.
Updated at 12:40 p.m. ET on January 22, 2025
In the pre-internet era, turning 18 in America conferred a very specific, if furtive, privilege: the right to walk into a store and buy an adult magazine.
Technically, it still does, for those hypothetical teenagers who prefer to get their smut in print. For practical purposes, however, American children can access porn as soon as they can figure out how to navigate a web browser. That’s because, since the 1990s, America has had two sets of laws concerning underage access to pornography. In the physical world, the law generally requires young-looking customers to show ID proving they’re 18 before they can access adult materials. In the online world, the law has traditionally required, well, nothing. Under Supreme Court precedent established during the internet’s infancy, forcing websites to verify the age of their users is burdensome and ineffective, if not impossible, and thus incompatible with the First Amendment.
That arrangement finally appears to be crumbling. Last week, the Court heard oral arguments in a case concerning the legality of Texas’s age-verification law, one of many such laws passed since 2022. This time around, the justices seemed inclined to erase the distinction between accessing porn online and in person.“Explain to me why the barrier is different online than in a brick-and-mortar setting,” Justice Amy Coney Barrett requested of the lawyer representing the porn-industry plaintiffs. “Do you agree that, at least in theory, brick-and-mortar institutions shouldn’t be treated differently than online?” asked Justice Neil Gorsuch.
If the Court indeed allows Texas’s law to stand, it will mark a turning point in the trajectory of internet regulation. As more and more of our life has moved online, the two-track legal system has produced an untenable situation. And lawmakers are fed up with it. Roughly 130 million people today live in states that have a law like Texas’s, all enacted in the past three years.
Elizabeth Bruenig: Pornography shouldn’t be so easy for kids to access
Technology has come a long way since the Court first struck down age-verification requirements. Age verification services are now effective, easily used, and secure enough to be widely deployed. However the Court rules in this particular case, the era of the online pornography free-for-all seems to be coming to a close.
Before the internet, limiting children and teens’ access to porn was pretty simple. Businesses weren’t allowed to sell porn to kids, and to ensure that they didn’t, they were generally required to ask to see some ID.
The Communications Decency Act of 1996 was supposed to establish a similar regime for the commercial internet, which only a few years into existence was already beginning to hint at its potential to supercharge the distribution of adult material. The law made it a crime to “display in a manner available to a person under 18 years of age” any sexual content that would be “patently offensive as measured by contemporary community standards.”
The Supreme Court unanimously struck down this section of the law in the 1997 case Reno v. American Civil Liberties Union, concluding that it amounted to a “blanket restriction on speech.” The law’s biggest problem was its vague and overbroad definitions of prohibited material, but practical concerns about the difficulty of compliance also played a large role in the Supreme Court’s ruling. It repeated the lower court’s finding that “existing technology did not include any effective method for a sender to prevent minors from obtaining access to its communications on the Internet without also denying access to adults.” And in a concurring opinion, Justice Sandra Day O’Connor wrote, “Until gateway technology is available throughout cyberspace, and it is not in 1997, a speaker cannot be reasonably assured that the speech he displays will reach only adults because it is impossible to confine speech to an ‘adult zone.’”
After that defeat, Congress passed a new, narrower law designed to survive First Amendment scrutiny. The Child Online Protection Act of 1998 required websites to prevent minors from accessing “prurient” or pornographic material. That law, too, was struck down, in part because the Supreme Court opined that optional parental filters would solve the problem more effectively while restricting less speech. In the end, parental filters were never widely adopted, and within a few years, kids started getting their own devices, which were mostly out of parents’ reach.
