The US Supreme Court has heard a landmark case on age verification, a legal battle that brings into sharp focus the complex interplay between constitutional rights and child safety. At the heart of the case is the question of how best to balance the free speech rights guaranteed by the First Amendment with the government’s responsibility to shield minors from potentially harmful content, particularly online pornography. As digital access continues to expand, lawmakers and the judiciary alike grapple with how to update legal frameworks to reflect the realities of the Internet age.
The First Amendment and Obscenity: Applying the Miller Test
The First Amendment to the US Constitution broadly protects freedom of speech and expression, preventing the government from unduly restricting content, even if it is controversial or offensive to some. However, there are established exceptions to this general principle, one of the most notable being for material deemed legally obscene. The Supreme Court determines whether content qualifies as obscene by applying what is known as “The Miller Test,” established in the 1973 case Miller v. California. The three-pronged test evaluates:
- Whether the average person, applying contemporary community standards, would find the work, taken as a whole, appeals to the prurient interest;
- Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
- Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
If content meets these criteria, it is no longer speech protected by the Constitution, and states, or even the federal government, may regulate it to prevent minors from accessing it.
The Supreme Court’s focus: Balancing burdens on adults
So far, there is no disagreement between the parties on those legal foundations. The question for the nine Justices of the Supreme Court arises because, in preventing children from seeing pornography, a burden is imposed on adults before they can access that content.
Historically, a strict interpretation has been applied to laws that impose upon free speech, meaning they must adopt the least restrictive means to meet the state’s objective. When the Supreme Court last considered this issue, in the Ashcroft v. ACLU case in 2002, it decided that the use of filters (software tools that block or restrict access to specific online content) was a less onerous option than age verification and ruled against the latter.
The case against Texas HB 1181
The Free Speech Coalition brought this case against a law passed in Texas, HB 1181, which is replicated in a similar fashion in some 19 other states. The first judge to hear the case issued a preliminary injunction, expecting the law would be found unconstitutional. That was overturned on appeal, allowing the law to take effect until a further hearing on the case’s merits. The Supreme Court was only being asked to reinstate that temporary stay, but is unlikely to confine its judgment to that question alone.
Filtering vs. age verification: A shift in policy?
The hearing in Washington, DC, highlighted arguments that filtering has not achieved its policy objectives, given the widespread access children have to adult content today.
Most commentators, analysing the judges’ lines of questioning, concluded that they almost all agreed filtering has not worked. The key question is whether they now find the latest age verification technology sufficiently easy to use and free of significant burdens such as cost or privacy risks, to replace filtering as the least burdensome means of achieving legislators’ goals to protect children.
What happens next?
The judgement is expected by July at the latest but could come sooner. The result is complicated because the 5th Circuit Court of Appeals has already ruled in favour of age verification but did so by applying a lower “rational” standard of scrutiny. The Supreme Court may not agree with this particular approach, but could still permit age verification under the stricter “strict scrutiny” standard. If so, this would overturn the stay on the original injunction, preventing the law from taking effect, but the case would then return to the lower courts. However, the Supreme Court is expected to clarify its position on age verification, providing binding guidance for reconsidering the Texas law’s constitutional validity.
As the Supreme Court deliberates on this landmark case, its decision will not only shape the future of age verification laws, but also set a precedent for balancing constitutional rights with the pressing need to protect children in the digital age.
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