吃瓜直播

In 20 states across the country, access to some of the most popular sites on the internet is cordoned off because the government doesn鈥檛 like what they publish: sexual content. To get past the gate, users might have to show their driver鈥檚 license, offer up financial information, or submit to a biometric scan, putting personal and identifying data in the hands of private actors that aren鈥檛 always equipped to keep them safe. Even if users are willing to jump through these invasive, risky hoops, the sites may no longer function in the state. This is the new reality for many sites that publish sexual material online, including pornography, at least until the Supreme Court weighs in.

You might think this is a new issue, but it鈥檚 not. The Supreme Court already decided it, more than 20 years ago, in cases litigated comprehensively by the 吃瓜直播 and others. The Court said then that websites cannot be compelled to verify the age of their users.

Yet here we are again, thanks to a trend of around the country, including in Texas. These laws chill adults from accessing content online that they have a First Amendment right to see. And though proponents claim they protect minors, they don鈥檛: Texas鈥� law, for instance, leaves precisely the same sexual content unregulated on search engines and social media platforms, and stands to push kids into darker corners of the internet. Such laws also degrade privacy and anonymity and threaten the free and open internet for everyone, regardless of age.

The 吃瓜直播 has always defended people鈥檚 right to access information, including sexual content, and pushes back against government regulations of speech that the government doesn鈥檛 like. That鈥檚 why we鈥檙e joining the law firm Quinn Emanuel Urquhart & Sullivan and the 吃瓜直播 of Texas at the Supreme Court on January 15 to demonstrate that 罢别虫补蝉鈥檚 age-verification law, HB 1181, demands rigorous scrutiny and is unconstitutional. Below, we break down how 罢别虫补蝉鈥檚 misguided attempt to child-proof the internet threatens all of our civil liberties.

罢别虫补蝉鈥檚 became law in 2023. It requires all websites with 鈥渙ver one-third sexual material harmful to minors鈥� to use 鈥渞easonable age verification methods鈥� to determine if their visitors are over the age of 18. As defined by the law, those methods must rely on a government-issued ID, like a driver鈥檚 license, digital ID鈥搘hich Texas does not have鈥搊r transactional data, like 鈥渞ecords from mortgage, education, and employment entities.鈥�

鈥淪exual material harmful to minors鈥� is a broad category encompassing anything that an average person would consider too sexual and too devoid of value for anyone under 18鈥搘hether they鈥檙e a toddler or a teenager.

As long as one-third of the content on a site qualifies, it doesn鈥檛 matter how political, educational, or otherwise valuable the rest of the site is. It鈥檚 like prohibiting minors from entering an entire bookstore or movie theater just because it carries adult books or shows R-rated movies. The law even puts educational websites that include sex ed materials or information about LGBTQ identities at risk.

The law also requires covered sites to prominently display 鈥渟exual materials health warnings鈥� penned by the Texas legislature, including the unscientific statement that pornography 鈥渋s proven to harm human brain development, desensitizes brain reward circuits, increases conditioned responses, and weakens brain function.鈥� (This requirement is currently enjoined as a result of the lower court rulings.)

Texas has been to implement most of the law, except for the health warnings. Websites that violate the law will be met with fines of up to $10,000 per day. And if a site allows a minor to access any prohibited sexual material, they can be fined an additional $250,000. Pornhub, one of the world鈥檚 most-visited websites, has completely in Texas because of the burdensome requirements.

The law does very little to protect kids, but it does threaten all of our First Amendment rights, regardless of age. It reflects the government鈥檚 distaste for specific topics and messages鈥搕hose about sex鈥揳nd so it has to pass a very strict test to satisfy the First Amendment. The government argues that the law just has to be reasonable since its goal is to protect kids, but accepting that argument could open the door to all manner of speech regulation. Pornography is often the canary in the coalmine when it comes to protecting free speech.

While proponents of age-verification laws liken them to showing your ID before buying pornography in person, the reality of online age verification is much more invasive. In the physical world, age-gating is easy: To comply with laws that make it illegal to sell pornography to minors, employees can just see that a person is old enough to buy it, or they can glance at the person鈥檚 birthday on their ID. The online version of this process is far more burdensome, time-consuming, and risky.

Uploading an ID, entering bank account information, or submitting to facial recognition technology specifically to access sexual content will make most people think twice, particularly when it means potentially creating a record of online activity that reveals our sexual preferences, interests, and questions. Laws like 罢别虫补蝉鈥檚 put adults one data breach away from having their sensitive information exposed to marketing companies, private actors, and even the government. Importantly, users who don鈥檛 have the right proof-of-age, or who are improperly identified as minors, may be blocked from seeing the content altogether.

If Texas required people to prove their age before, say, reading Shakespeare, there would be no question that it would be violating the First Amendment. That this case is about sexual speech doesn鈥檛 change that.

Forcing people to identify themselves to access information online threatens the internet鈥檚 very spirit, and it compromises our rights to privacy and free speech without preventing children from accessing porn. In an age marked by data breaches and digital surveillance, linking your identity to your browsing history will inevitably discourage speech鈥攁nd if that is deemed okay for sexual content, it could keep spreading to any number of other topics or mediums. Several states have already passed similar laws restricting access to social media for minors, and if those regulations continue to pass, the future of the internet looks a lot more fenced in.

Defining sexual material that is 鈥渉armful鈥� to minors 鈥� and even what counts as 鈥渙bscene鈥� for adults 鈥� is notoriously difficult to do. That vagueness is also easy to abuse, including to cut kids off from important information. Over the years, everything from books with LGBTQ characters to reproductive health information have been mislabeled by some as 鈥渙bscene鈥� and dangerous for minors to consume. 罢别虫补蝉鈥檚 law, and others like it, could make it easier to keep kids away from educational content鈥揳nd they would do it without actually blocking kids from seeing pornography.

That鈥檚 because, in light of the law's threshold and exemptions, it doesn鈥檛 even reach social media and search engines鈥搕he places where minors are most likely to encounter explicit content. The law explicitly exempts search engines, and its one-third threshold means that most major social media platforms aren鈥檛 covered by it, even if they host comparable or even identical content to Pornhub.

In addition, this law could push kids towards websites that do not comply with U.S. law and may host more extreme content. As the International Centre for Missing and Exploited Children wrote in their , this is how laws like HB 1181 鈥渆xpose minors to separate risks, such as malware, trafficking, and predation.鈥�

And it's worth noting, as National Coalition Against Censorship does in its , that minors aren't monoliths. A teenager may well benefit from seeing content deemed inappropriate for a toddler, including in Texas, where the legal age of consent is 17. This law could make it so that it鈥檚 legal for some minors to have sex in Texas, but not to learn about it online.

This isn鈥檛 a new issue. The 吃瓜直播 and others litigated this exact same question鈥搘hether the government can make a website liable for publishing sexual content without first verifying the age of visitors鈥搃n the late 鈥�90s and 2000s, and we won.

In Reno v. 吃瓜直播, the 吃瓜直播 challenged a provision of the Communications Decency Act that criminalized publishing 鈥渋ndecent鈥� speech online if it was viewable by a minor. In its 1997 decision, the Supreme Court held that the provision "threaten[ed] to torch a large segment of the internet community鈥� by placing the 鈥渢heoretical but unproven benefit of censorship鈥� above the constitutionally-guaranteed rights of adults.

In 2004, in Ashcroft v. 吃瓜直播, the Supreme Court struck down the Child Online Protection Act (COPA) which, among other things, made it a crime to knowingly post 鈥渉armful to minors鈥� content online without verifying the age of those trying to access it. The Court concluded that COPA, too, was likely unconstitutional because the government could achieve its child-protection goals without burdening the rights of adults.

These cases followed decades of Supreme Court opinions protecting adults鈥� access to sexually explicit content even when the government argued restrictions were required to protect kids鈥搃n everything from drive-in movies to cable TV to phone messages.

Today the 吃瓜直播 and our legal partners are building on this precedent to urge the Court to continue to protect our First Amendment rights online. More than two decades of precedent are at stake in Free Speech Coalition v. Paxton. And there are other things at stake, too 鈥� a free and open internet and the future of speech both online and off.