The smartphone has transformed American childhood. Kids today respond above all to social media’s panopticon of perpetual peer judgment and corporate-funded online influencers. As a result, kids have less need for the approval of parents, teachers, coaches, and ministers. As their role in raising kids weakens, screens play an ever more pivotal role in today’s digital childhood.

　　While often viewed separately from social media, smartphone-delivered pornography shares a similar power to unmoor kids from essential social structures. Online porn does not function like the copy of Playboy magazine that the free-swinging kid brought to Boy Scout camp. A physical magazine, the novelty and allure of which quickly dissipates, is not the same as a smartphone which can deliver limitless amounts of infinitely varied pornography.

　　This uncontrollable ease of porn distribution is a new problem. Our kids have not always grown up awash in pornography. To the contrary, for almost all our entire history, parents have kept, with little effort or expense, unwanted material out of the home and away from kids. Even in the era of shared desktop home computers in the 1990s, parents could exercise over-the-shoulder supervision.

　　This concern is not conservative hysteria. Social scientific research has demonstrated the psychological harm exposure to pornography causes for adolescents. As one might expect, pornography use diminishes successful romantic attachment and reduces satisfaction with one’s sex life. And this is consistent with the record levels of mental illness, loneliness, and unhappiness—as well as radically diminished romantic attachment—that Gen Z faces, a reality that leading psychologists such as Jonathan Haidt and Jean Twenge have researched.

　　Given these new problems, basic regulations on the distribution of pornography clearly fall within the traditional authority of states to regulate public health safety and morals.

　　Attempting to do that, and to return to parents the power that smartphones subverted, several states, including Texas, have passed laws that require porn sites to verify the age of their users through reliable, objective means—rather than simply employing self-affirmation click-through screens that can be easily circumvented. The Texas law is a simple and modest effort to tackle a real problem. And yet, of course, the pornographers challenged it under the First Amendment.

　　The Fifth Circuit turned down this challenge and upheld the law in Free Speech Coalition v. Paxton. It concluded, relying on older Supreme Court cases, that it should be reviewed under the lenient “rational basis” standard courts typically use for statutes that do not implicate constitutional rights. The Fifth Circuit’s conclusion surprised many who thought the Supreme Court’s more recent case, Ashcroft v. ACLU, required “strict scrutiny” First Amendment review, a standard of review which almost always results in the court ruling the challenged law unconstitutional.

　　In Ashcroft, a 2004 opinion decided before the emergence of the smartphone, the Court struck down 5-4 an age verification requirement found in the federal Children’s Online Protection Act (COPA) to access material that was “obscene or obscene for minors” on the Internet. Applying strict scrutiny, the Court ruled that the cost, time, and possible embarrassment of age verification unconstitutionally burdened adult speech. The Supreme Court, which granted certiorari in the Texas case, will have a choice: uphold the state’s age verification requirements—either by updating its reasoning in Ashcroft or reaffirming the older cases on which the Fifth Circuit relied—or, very possibly, rule that the Constitution requires that our kids grow up in a sea of porn.

　　An American from 1950—or for that matter 1990—might wonder how we got to this unhappy situation. How is it at all tolerable that parents and society at large have lost the power to control the diet of degrading sexual images regularly served to our kids—and Texas’s mild effort to restore this control hinges on finding five friendly Supreme Court justices?

　　The road here certainly involves technology and the smartphone, which has supplanted magazines as pornography’s primary distribution method and rendered its distribution costs marginal. But that road also runs straight through the Supreme Court’s precedent—which is responsible for our current situation in two ways.

　　First, in its 1973 Miller v. California decision, it recognized that “obscene” speech lacks First Amendment protection and government could ban it. But Miller, which correctly focuses on explicit portrayals of the sexual act, also requires that obscenity be “patently offensive” according to local community standards and lack any conceivable artistic, literary, or scientific value. Due to this absurdly high standard of proof, prosecutors rarely bring obscenity cases—creating an Internet free-for-all.

　　The Court imposed this high standard from a fear of censoring literary works like Lady Chatterley’s Lover, Ulysses, and even, more oddly, crass pornography such as Fanny Hill. After World War I, “Comstockism,” a neologism that George Bernard Shaw adopted, became a term elites used to deride the culturally unsophisticated. Distancing themselves from religious censoriousness and allying themselves with liberal theories of freedom, the justices in the mid-twentieth century mystified the obscenity definition, complicating it with multiple tests that are nearly impossible to prove in court. Contrary to the Court’s self-absorbed intellectual struggling (for instance, Justice Potter Stewart’s definition of obscenity as “I know it when I see it”), obscenity has a simple and empirical test: Would the book or movie be suitable for a fertility lab’s collection room? Would guys rather reach for the copy of Ulysses or the Debbie Does Dallas videocassette?

　　Second, because non-obscene pornography receives First Amendment protection, and given the narrowness of the obscenity definition, most of what is found on Pornhub is non-obscene and receives, at least plausibly, First Amendment protection. Courts review laws regulating porn under strict scrutiny, and they therefore must be drawn with clinical precision—in other words, it became under the Miller test almost impossible for legislatures to pass laws regulating porn that pass First Amendment muster.

　　For some justices, their conservative temperament too often trumps their conservative principles that government has a role to protect kids from things that truly hurt them.

　　It is often forgotten that Miller was decided in 1973, but did not result in homes flooded with porn. That is because the Court reviewed under rational basis zoning laws that placed adult bookstores in out-of-the-way places kids could not walk to or easily access, like near airports. Because porn could only be widely distributed by magazine or videotape until the late 1990s, these zoning restrictions kept porn from most kids. Thus, the Boy Scout searching for a copy of Playboy mentioned above would have to be fairly resourceful.

　　In the late 1990s, however, the Court’s Miller definition unleashed pornography on our kids because the Internet rendered porn costless to distribute to anyone with a broadband connection—so zoning laws became ineffectual in keeping porn out of the home. This development should have prompted the Court to view pornography regulation more leniently, given its greater availability and pervasiveness.

　　But, possessed by a robotic libertarianism, the Court went the other way. In Ashcroft v. ACLU, it struck down 5-4 an age verification requirement found in the federal Children’s Online Protection Act (COPA) for access to material on the Internet that was “obscene or obscene for minors.” The Court ruled that the cost, time, and embarrassment of age verification unconstitutionally burdened adult speech when performed online. Because the Court assumed that COPA covered both unprotected obscene and protected non-obscene pornography, it applied strict scrutiny.

　　The Fifth Circuit ruled that Ashcroft was inapplicable because both parties in that case had assumed strict scrutiny applied. The Fifth Circuit determined that the correct standard of review had not been established and concluded that an older case, Ginsberg v. New York, controlled. Eschewing strict scrutiny, Ginsberg upheld under rational basis a New York law that prohibited sales of “girlie magazines” to minors.

　　The Supreme Court could uphold the Fifth Circuit and say that, in fact, rational basis scrutiny applies to age verification. The Court could point out that it has in the past upheld age requirements for children’s access to both obscene and non-obscene pornographic content as in Ginsburg and Pacifica Radio and the adult store zoning cases. The Texas law under scrutiny follows this precedent.

　　Alternatively, the Court could show that even under Ashcroft’s strict scrutiny, the law should survive—arguably a stronger approach. Technology has overtaken Ashcroft, obviating its reasoning and making it indeed a bit absurd. Decided in 2004, when the Internet was provided on laptops, not smartphones, Ashcroft ruled the age verification requirement to be unconstitutional because there was a less restrictive alternative: filters. Twenty years have gone by, and that experiment has failed. Kids are more tech-savvy than their parents, and filters are difficult to control and update. Only the most dedicated parent can keep adequate control.

　　Further, Ashcroft is just wrong about the burden age certification imposes upon adults’ ability to access constitutionally protected speech. It reasoned that because adults must identify themselves with government-issued IDs or credit card numbers under COPA, they will be deterred from going to sites to receive protected speech, i.e., non-obscene porn. The Ashcroft Court is a bit coy about what might be the cause of this deterrence, but as Justice Breyer’s dissent states, it consists of cost and embarrassment of revealing one’s identity when looking for porn.

　　Again, changing technology undermines the Ashcroft decision. New techniques that involve trusted third parties do not require credit card numbers or government IDs. To give an example, you log into your bank account. Under most state laws, you must be an adult to open a bank account. Your bank then sends a cookie to your browser which only states you are an account holder. The porn site could read the cookie and, without knowing your identity, could conclude that you are a legal adult. There is no need to reveal your identity. Cryptographic methods, such as zero-knowledge proofs, take this principle to the highest achievable levels of privacy. Similarly, age estimations can be made simply by analyzing publicly available online information such as your email address or even pictures of your hand movements.

　　Furthermore, Ashcroft is fundamentally wrong about privacy on the web. It assumes that age verification forces Internet users to reveal their identities. Of course, users are typically tracked in everything they do on their web, with data brokers selling Internet identities to advertisers, using IP addresses and device identifiers that can easily be associated with real people. Once users are on the Internet, their identities are compromised, regardless of age verification requirements.

　　In sum, the Court has two reasonable options for upholding the Texas law: It could do so under the Fifth Circuit’s reasoning and rule that age verification should receive rational basis review. Or, it could uphold it under strict scrutiny based on an updated and corrected Ashcroft standard for age verification.

　　The Court’s Internet decisions from the last few years, however, such as NetChoice v. Paxton, as well as its refusal to resolve circuit splits involving key statutes about the Internet liability, such as Section 230 of the Communications Decency Act, indicate a deep aversion to changing or upsetting the rules governing the Internet. For several of the justices, their conservative temperament too often trumps their conservative principles that government has a role to protect kids from things that truly hurt them when it is difficult for parents acting alone to do so.

　　The one ray of hope is, of course, Justice Thomas. In his wise 2011 dissent in Brown v. Entertainment Merchants, he recognized that “the founding generation would not have considered it an abridgment of the freedom of speech’ to support parental authority by restricting speech that bypasses minors’ parents.” Rather, given the importance they placed in the role of the family to raise virtuous citizens, “the Framers could not possibly have understood ‘the freedom of speech’ to include an unqualified right to speak to minors.” 

　　Despite the possibility that Justice Thomas’ views could win the day, the smart money is that the Court will find some mushy middle ground. For instance, it could reverse the Fifth Circuit but rather than impose strict scrutiny, it could send the case back to the lower courts under some new standard of review that no one quite understands and will take years to work through the courts. Such an approach would signal the Court’s concern for kids, preserve precedent, and have minimal disruption to the Internet. In the meantime, the cruel experiment of exposing our kids to explicit pornography at earlier and earlier ages likely will continue. Let’s hope the smart money doesn’t win this time.