ArcaMax

Of course the state has a legitimate interest in preventing minors from accessing porn online that is intended for adults. Who could be against that? Certainly not the state of Texas, which overwhelmingly passed a law requiring porn sites to verify the age of users seeking access to their sites. Sort of like showing your ID when you're buying alcohol or cigarettes.

Actually, it's not like that at all.

The Texas law's constitutionality was up before the United States Supreme Court on Wednesday in the case of Free Speech Coalition v. Paxton. I'm on the coalition's side. Not that I've ever accessed pornography online -- not my taste -- but tens of millions of adults do, and they have every right to, at least according to the district court that enjoined the Texas law from taking effect because giving your drivers' license to a porn site as a condition for access unreasonably burdens the rights of adults to free speech.

But the Court of Appeals for the Fifth Circuit -- the country's most conservative -- reversed the district court, refused to apply the strict scrutiny that laws restricting adults' free speech are supposed to be subject to, and upheld the law. Now it's up to the Supreme Court to decide.

Will it follow its own precedent and protect the freedom of adults to access such speech privately, without having to provide identifying documents online that will make the site a target for hackers and blackmailers?

The devil is in the details. The porn industry doesn't challenge the state's right to try to protect kids from porn. But the Texas law is, in a word, a mess. It won't stop kids from accessing porn: It only applies to porn sites doing business in Texas, not to foreign sites or social media sites or search engines that can be used to access the same images; it only applies to sites where more than one-third of their content is "sexual material harmful to minors"; it doesn't stop kids from using VPNs (ask any teenager what a virtual private network is and they'll know even if you don't) to access sites, nor does it do anything to discourage kids from resorting to the much more extreme (and dangerous) sites on the dark web.

But it means that every adult who wants to look at images they have every right to see has to sacrifice their anonymity and their privacy to do so. The sites don't want that information. Unlike every other vendor, they don't want to identify and track their users any more than their users want to be identified and tracked by them. Pornhub stopped doing business in Texas rather than collect driver's licenses or passports from everyone there who accessed the site. Can you imagine a juicier target for hackers or for unscrupulous operators?

When a state regulates free speech, even for a very good reason, it is required to use the least restrictive alternative to do so. Employers have figured out how to block their employees from surfing Facebook, or whatever, at work. They use content-filtering software, which parents can easily install on their kids' computers and phones. If you don't want to put it on parents, the state could require device-based age verification.

Device-based age verification refers to any approach to age verification where the personal information that is used to verify the user's age is either shared in-person at an authorized retailer, inputted locally into the user's device, or stored on a network controlled by the device manufacturer or the supplier of the device's operating system. The user will then be prevented from accessing age-restricted content over the internet unless they are age-verified. Such an approach requires the cooperation of manufacturers and operating-system providers, which should be forthcoming.

Texas did not consider any of these options before settling on a "solution" that could only be upheld by jettisoning the strict scrutiny that has long been applied to content regulation of protected speech. The Supreme Court asked tough questions to both sides: To this observer, they seemed sympathetic to what the state was trying to do but also concerned with the Fifth Circuit's plain rejection of precedent and with the implications of weakening or abandoning strict scrutiny. That concern is well-placed. State legislatures that are concerned with minors' access to porn would be well-advised to do a better job of considering alternatives that Texas ignored.

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To find out more about Susan Estrich and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at www.creators.com.

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