BAN ONLINE PORN FOR KIDS
New Yorkers above a certain age remember the old Times Square. If you created a list of words to describe it, “depraved” would be near the top. Peep shows, adult bookstores and live sex shows stretched on for block after block. But New York was hardly alone; major cities across the country had their own red-light districts. When I started my freshman year at a college in Nashville, Tennessee, the city’s Lower Broadway was a miniature version of Times Square. To reach the tiny, tourist-friendly sectors of downtown, you had to drive down Lower Broadway, past peep shows, strip clubs and open prostitution.
And now? While no one would call Times Square entirely family friendly, it is radically different from the 1970s version captured in HBO’s prostitution-andporn series “The Deuce.” So is downtown Nashville, now called the bachelorette capital of America. Lower Broadway is so packed with tourists that locals steer clear — not because it is debauched but because it is just so darn crowded. In places like New York and Nashville, rezoning, economic development and law enforcement crackdowns on illegal activity helped corral the sex trade and revitalize the cities in question.
We’re overdue for another cleanup of our public spaces. But this time the work to be done is not on city streets but in the wilds of the online universe. And we can use our successes in Times Square, Lower Broadway and elsewhere as a conceptual legal model for reforming these virtual public spaces.
The core issue is kids, specifically kids’ extraordinarily easy access to pornography online. For the nation’s youth, their smartphones can and too often do function as a hand-held version of Times Square, circa 1975 — but without any age limits. They can plunge into the darkest of adult worlds, and they can do so without their parents having the faintest idea of what is filling their young minds.
Last week, The Free Press published a powerful essay with a provocative title: “I Had a Helicopter Mom. I Found Pornhub Anyway,” by Isabel Hogben, a 16-year-old girl. She wrote of discovering porn at age 10 on a website that had “no age verification” and “no ID requirement.” It didn’t even have an age prompt asking her if she was over 18. And what did she see after she clicked the link? “Simulated incest, bestiality, extreme bondage, sex with unconscious women, gangbangs, sadomasochism and unthinkable physical violence.”
The purpose of this column isn’t to detail how bad the world of online pornography is. It should be self-evident that 10-year-olds (and 16-year-olds) should not be viewing the images Hogben encountered. Our nation has long placed legal age limits on access to sexually explicit content offline, in the real world. That content is not magically rendered more benign simply because the images are viewed on a phone or laptop.
So why not bring our offline doctrines to the online world? If we can impose age limits and age verification offline, we can online as well. If we can zone adult establishments away from kids offline, we can online as well. And if we do these things, we can
improve the virtual world for our children without violating the fundamental rights of adults.
Our nation tried this before. In 1996, Congress passed the Communications Decency Act, which — among other things — criminalized the “knowing” transmission of “obscene or indecent” material online to minors. In 1997, however, the Supreme Court struck down the act’s age limits in Reno v. ACLU, relying in part on a lower court finding that there “is no effective way to determine the identity or the age of a user who is accessing material through email, mail exploders, newsgroups or chat rooms.”
The entire opinion is like opening an internet time capsule. The virtual world was so new that the court spent a considerable amount of time explaining what the World Wide Web — when was the last time you heard that phrase? — even was. The internet was so new and the technology so comparatively primitive that the high court, citing a U.S. District Court finding, observed in its opinion that “credit card verification was ‘effectively unavailable to a substantial number of internet content providers.’ “Indeed, critical to the Supreme Court’s opinion was the lower court’s finding “that at the time of trial 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.”
In 1998, Congress tried again, passing the Child Online Protection Act, but in 2004 a closely divided Supreme Court blocked enforcement. Its decision was based in part on the naïve belief that blocking and filtering technologies were “less restrictive alternatives” to the law. But time has demonstrated that blocking and filtering aren’t “less restrictive”; they’re wholly inadequate.
It is now 2023, and in 2023 secure credit card use and age verification online are practically ubiquitous. There are age limits for users on Instagram, Facebook, Reddit and X (formerly known as Twitter), for example. Yes, creative kids can circumvent age restrictions, just as enterprising teens can create fake IDs in the real world. But creating additional hurdles to the acquisition of porn still matters. When multiple states passed ageverification laws, for example, Pornhub responded by pulling out of some of them.
Yes, age verification will make porn slightly more difficult to obtain for adults. But age verification and zoning in the real, nonvirtual world also create slight difficulties for adults yet remain legal. As ID requirements for strip clubs and other adult establishments demonstrate, adults do not have a constitutional right to access to pornographic materials with complete anonymity. And as zoning laws that restrict sexoriented businesses to certain areas demonstrate, they do not have a constitutional right to convenient pornography.
Why does the Supreme Court’s 1997 ruling matter so much? Because two days after The Free Press published Hogben’s essay, a federal judge in Texas blocked enforcement of that state’s age verification law, citing Reno v. ACLU. It is and will be difficult to craft a constitutionally permissible age verification law as long as that outdated analysis remains a leading precedent. But Texas is likely to appeal its loss, and the Supreme Court may soon get an opportunity to reconsider its precedent in light of the considerable developments in the internet since it first blocked age verification laws.
This is not a partisan issue. In Louisiana, for example, a legislator named Laurie Schlegel introduced an age verification bill that, as Politico reported, “sailed through” the state House 96-1 and the state Senate 34-0. I’ve never met any parents, no matter how conservative or how progressive, how religious or how secular, who wanted their children to be able to view graphic porn. Moreover, even the judge who blocked the Texas law observed, “It is uncontested that pornography is generally inappropriate for children, and the state may regulate a minor’s access to pornography.”
Thus, our nation’s challenge is more technical than constitutional. The best way to understand the court’s old precedents regarding online age verification to get access to pornography is not that it said “no” but rather that it said “not yet.” But now is the time, the need is clear, and the technology is ready. Congress should try once again to clean up the internet the way cities cleaned up their red-light districts. The law must do what it can to restrict access to pornography for children online.