| The Supreme Court may not comprise the “nine greatest experts on the internet,” as Justice Elena Kagan once quipped, but they’re getting no shortage of opportunities to learn. On Wednesday morning, while the tech world awaited the high court’s ruling on TikTok, Kagan and her colleagues were busy hearing oral arguments in another online speech case — one that has received less attention but could prove pivotal in its own right. In recent years, more than a dozen states have passed laws that aim to prevent minors from seeing online pornography, often by requiring adult websites to verify visitors’ ages before allowing them in. Among those is Texas, whose 2023 law sparked a lawsuit by an adult-entertainment industry group that argued that it violates the First Amendment by infringing on adults’ ability to freely access their sites. How the Supreme Court rules on Texas’s law will shape the fate of others like it. Leading adult publisher Pornhub has cut off access to its sites altogether in many states, including Texas. Pornhub argues that such laws punish the companies that comply while leaving loopholes for shady sites, and that if anyone is going to be held responsible for distinguishing between children and adults online, it should be device makers such as Apple. Free-speech advocates have also criticized the laws as part of a conservative bid to crack down on disfavored speech more broadly, opening the door to restrictions on speech related to gender identity and reproductive health. The Texas law applies to any website whose content is more than one-third sexual material deemed “harmful to minors,” a criterion they consider nebulous and lacking a solid legal basis. On Wednesday, the Supreme Court confronted a question that keeps coming up in First Amendment cases: How do laws and precedents written for an offline world apply to online technologies? In 1968, the Supreme Court upheld a law that made it a crime to sell pornographic magazines to young people. But in 2004, the court struck down a federal law intended to protect kids from online pornography, ruling that it would unduly limit adults’ access to constitutionally protected speech. In Wednesday’s arguments, attorneys for Texas argued that technology has shifted in a way that reduces the First Amendment concerns. Since 2004, they said, online pornography has become ubiquitous and instantaneously available, constituting a “public health crisis” among young people. It’s a point that seemed to resonate with Chief Justice John G. Roberts Jr., who said on Wednesday, “Technologically, access to pornography has exploded.” At the same time, the state argued, age-verification technologies — including those that quickly analyze users’ faces to estimate their age — have improved and become less invasive, making it easier for websites to let in adults while keeping kids out. Meanwhile, content-filtering tools, which were cited by the court in 2004 as a less onerous way to keep kids away from porn, have proved ineffectual. In other words, Texas is claiming that the situation today more closely resembles that of 1968, when it was assumed that human shopkeepers could distinguish kids from grown-ups at a glance. In a moment of levity, conservative Justice Samuel A. Alito, Jr. asked whether Pornhub was “like the old Playboy magazine — you have essays there by the modern-day equivalent of Gore Vidal and William F. Buckley Jr.?" “Not in that sense,” industry attorney Derek Shaffer said, but he added that the site does include “sexual wellness posts.” Adam Candeub, a law professor at Michigan State University who supports the Texas law, said he was encouraged that several of the justices on Wednesday seemed open to revisiting the 2004 ruling. “Many of them seem to realize that technology changed, and we have experience with technology, particularly filters,” that we didn’t have in 2004, he said. “Age verification can be done without diminishing privacy or requiring identification,” whereas filters turn out to be easily defeated because “kids are more tech savvy than their parents.” But the arguments about how technology has changed can cut both ways. Attorneys for the adult publishers say the 2004 ruling, Ashcroft v. ACLU, should still apply, since the Texas law is very similar to the one the court struck down two decades ago. They say online age-verification tools remain both unreliable and privacy-invasive in ways that a quick, offline ID check at a cash register isn’t. They have a point, said David Greene, senior staff attorney at the nonprofit Electronic Frontier Foundation, which advocates free expression online. “Most people don’t want their face scanned” when they visit an adult website, he told the Tech Brief. They find it “creepy and invasive,” and “that very much inhibits their desire to access the speech.” As my colleague Drew Harwell reported in August, the push to protect kids online has sparked a booming industry of digital gatekeepers whose technologies survey “faces, driver’s licenses and other sensitive data in vast quantities,” affecting kids and adults alike. The stakes for online speech are potentially much larger than just access to adult content. Legally speaking, a crucial question is whether attempts to regulate disfavored but constitutionally protected online speech should always merit “strict scrutiny” by the courts — a high bar — or whether courts can apply a more lenient standard to some types of content-based restrictions. If they decide the latter in this case, Greene said, that could erode free speech across the internet more broadly. As for what other types of speech states or the federal government might try to restrict if the Supreme Court upholds the Texas ban, Greene said, “Pick the speech that’s under attack right now.” He gave as examples efforts to restrict online information about reproductive health and immigrants’ rights. While there’s no direct connection between the Texas age-verification case and the TikTok case, each raises questions about how strongly the courts will protect forms of speech that have historically tested the limits of the First Amendment. “It’ll be interesting to compare how the court deals with this interest in protecting children, which no one wanted to argue against, with the national security interest [in the TikTok case], which no one wanted to argue against,” Greene said. | 
