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A federal judge has issued a preliminary injunction against at Texas bill aimed at curbing porn access by minors. According to the text TX House Bill 1181 requires porn websites employ "reasonable age verifications methods" and display a series of notices about the alleged side effects of porn consumption (page 4 of the pdf). (I say alleged because I haven't read enough of the research to have made up my mind on the subject.) I went into this thinking the judge was issuing the injunction based on compelled speech grounds, the health warnings. However, as I read along, there are some head scratching lines. For example from page 26-27, under the heading "The Statute is Not Narrowly Tailored:
I can't put my finger on why, but this feels Kafkaesque in its logic here to me. "Your law isn't doing enough so it's an overreach." I'm almost certain if Texas had put in requirements about social media or search engines, the court would have struck that down as being overreaching. Lawyers, help me understand why I'm wrong here.
Outside the legal logic and jurisprudence at play here, I'm a little unsure of where I fall on the ethical issues at play here. I don't have anything against porn as long as everything going on is consensual, legal, and not, for lack of a better term, too weird. (I don't really know where that line is and I don't think it's terribly germane to the discussion.) I don't really think age restrictions are unethical. I certainly don't buy that they're too difficult to implement, since gambling sites require age verification and have been able to pull that off. (Web devs, help me understand why I'm wrong.) Nor am I really sure I buy the privacy arguments either here. I guess people just paid cash for their porn back in the day but there was still someone behind the counter who knew that you bought it and, in theory, could be compelled to testify that they saw you buying Naughty Nurses 7. (No idea what kind of court case would hinge on that information, but it's theoretically possible AFAIK.)
As far as the health warnings go, I'm not sure where I fall on that. On the one hand, I don't generally favored compelled speech, whether it's my coworkers asking for me to give my pronouns, trigger warnings, the government telling me I have to say the pledge of allegiance, people telling me I have to stand or kneel for the national anthem. On the other hand, I'm very much in favor of strict consumer labeling laws, since customers can best express their market preferences when they have the most information about their competing choices.
Since the court found the law implicated a fundamental right (freedom of speech) and constituted a content based restriction on speech (it limited access to speech based on its pornographic or sexual content) the law was only constitutional if it could survive strict scrutiny. One of the requirements of strict scrutiny is that a law be "narrowly tailored" to achieve a "compelling government interest". The requirement for narrowly tailoring means a law cannot be either too overinclusive or too underinclusive. Too overinclusive is obvious. If your law prohibits a bunch of speech you have a compelling interest in regulating but also a bunch of speech you don't have a compelling interest in regulating, it is constitutionally problematic. Too underinclusive is less obvious. The reasoning from the case the court cites (City of Ladue v. Gilleo) is that underinclusive regulations undermine the rationale for the government's compelling interest. If the government is interested in preventing minors from seeing sexual materials online why is it permissible for them to see it on Bing or Google but not other sites? It starts to look like the government's rationale isn't really to prohibit minors from seeing sexual materials but rather to punish specific companies that host sexual material, using this compelling government interest as a pretext. Quoting City of Ladue:
I think there are a few crucial distinctions.
The most obvious one is that gambling websites require you to transfer them money in order to actually gamble. Almost certainly this makes them subject to Know Your Customer and Anti-Money Laundering regulations that require age and identity verification (since they are a custodian and transmitter of your money). Key here, though, is that as long as you don't gamble on these websites you don't have to do any identification or age verification. You can go to Draft Kings right now and nothing stops you from browsing their website, even if you are underage. Laws like Texas' want porn websites to require proof of identity to even visit the site. From a technical perspective it is much easier to require someone to provide proof of identity to make an account than simply load a website, unless you tie those things together.
Another angle is that restrictions on access to pornography implicate fundamental constitutional rights in ways that restrictions on gambling don't. There is, as far as I know, no constitutionally recognized right to gamble. There are constitutionally recognized rights to watch videos, read works, and otherwise consume media. Even if that media involves sexual titillation. There are exceptions for obscene material, but material deemed obscene is a pretty narrow slice of pornography.
True, and I fully support this, but that right doesn't neccesarily extend to minors, does it? Kids under a certain age still aren't permitted to watch R-rated films in theatres without a gaurdian so far as I'm aware. (I guess the distinction here is that this is enforced by the MPAA and the theaters, not the government.)
For the sake of discussion, let's say the technical issues you talked about are solved and age verification can be done. I'm not certain how forbidding minors from viewing porn impinges on the free speech rights of adults. The entertainers are still allowed to make and distribute their entertainment. Timothy and Susan can still consume said entertainment, even if Little Timmy and Suzy Jr can't. Is the argument that requiring proof of age has a chilling effect on consumption?
Lets do the ad absurdum case just to demonstrate how it's possible in the abstract.
Imagine the law said 'to ensure that no minors see the sight, every time the site is pinged by a new IP, the site must block that IP until the completion of an investigation by a private investigator into the owner of that IP address, to make sure that there is not a reasonable possibility that any child could have access to device. The site is responsible for paying for this investigation from an approved vendor, we've approved 2 vendors and they both charge $10k per IP address'.
Clearly no business can make money under that regime, so the law would in practice just mean 'porn sites are illegal now'. This certainly impinges on the ability for adults to exercise free speech in this area, even though the law does not explicitly say as much.
The case here is not that extreme, but it's the same idea: undue burdens, chilling effects, etc.
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