The porn industry just got what it deserved at the Supreme Court.
On the last day of its term, by a 6-to-3 vote, the court delivered a decisive ruling against one of the worst industries in America. It upheld a Texas law that requires pornographic websites to “use reasonable age verification methods” to make sure that their customers are at least 18 years old. The court split on ideological lines, with the six Republican appointees voting to uphold the law and the three Democratic appointees in dissent.
When you see what appears to be a sharp ideological divide on the court, it’s easy to jump to conclusions, to label, for example, the liberals on the court pro-porn compared with the conservatives, but that’s fundamentally wrong. In this case, the most important words from the court came not from Justice Clarence Thomas’s majority opinion but from Justice Elena Kagan’s dissent.
“No one doubts that the distribution of sexually explicit speech to children, of the sort involved here, can cause great harm,” Kagan wrote. “Or to say the same thing in legal terms, no one doubts that states have a compelling interest in shielding children from speech of that kind. What is more, children have no constitutional right to view it.”
There, in plain English, is a powerful declaration — one that should echo in American law and American culture. From left to right, all nine justices agree that pornography can cause great harm to children. All nine agree not merely that children have no constitutional right to view it but also that the state has a compelling interest in blocking their access.
And it’s no wonder. Our nation’s young people are in the midst of a virtual pornography pandemic. The combination of early exposure and the sheer violence and cruelty in so much modern pornography means that children are getting a sex education in exploitation.
Interestingly, the difference between the justices was about not the degree of depravity in porn but rather the precise legal test to use to evaluate the Texas law. The lower court, the Court of Appeals for the Fifth Circuit, had used the most lenient possible standard, rational-basis review.
Under rational-basis review, a court will uphold a statute as long as the law has a rational connection to a legitimate state interest. It is exceedingly rare for a court to strike down a law under rational-basis review.
Because kids have no right of access to porn, the Fifth Circuit reasoned, the Texas law didn’t implicate the First Amendment, and thus the court should uphold the law so long as Texas could articulate a rational basis for it.
Rational-basis review was never going to fly at the Supreme Court. Kids don’t have a right of access to pornography, but adults do, and the identification requirement puts a burden on adults’ rights by requiring them to upload identification (and risk their privacy), which means it couldn’t be the case that only rational-basis review applied.
But if rational-basis review was wrong, then what was the proper standard? That’s where the court diverged. Thomas decided to apply a test called intermediate scrutiny, which he described as “deferential but not toothless.”
To pass intermediate scrutiny, a law must, according to Cornell Law’s legal encyclopedia, “further an important government interest,” and it “must do so by means that are substantially related to that interest.” That’s wrong, Kagan argued. Because the law is targeted at the content of pornographic speech, the toughest and most speech-protective test should be applied — strict scrutiny.
Under strict scrutiny, a law can survive judicial review only if it is narrowly tailored and uses the least restrictive means to advance a compelling state interest. Lawyers like to say that strict scrutiny is so tough that it’s strict in theory but fatal in fact.
This technical legal explanation brings me to an important point: Although Kagan wanted to send the case back to the lower court so that it could apply the stricter test, she also wrote that in this case, strict scrutiny might not be fatal after all. The Texas law, she wrote, “might well pass the strict-scrutiny test, hard as it usually is to do so.”
To understand why, let’s leave the court for a moment. Last month The Times published a poignant Modern Love essay — “Men, Where Have You Gone? Please Come Back,” by Rachel Drucker, In powerful, personal terms she described how she’s noticing that men are retreating from intimacy.
Drucker used to work for Playboy, and she knew what drew men to the magazine’s website. “It wasn’t intimacy. It wasn’t mutuality. It was access to stimulation — clean, fast and frictionless.”
So where have men gone? One answer is that they’ve gone to porn, and it has shaped their view of what a relationship looks like, what sex is supposed to be like.
When a person consumes porn, she wrote, “there’s no need for conversation. No effort. No curiosity. No reciprocity. No one’s feelings to consider, no vulnerability to navigate. Just a closed loop of consumption.”
And what men see is quite often much worse than you would even want to imagine. When the court’s decision was announced, I saw an odd little surge online of what one might call porn nostalgia, as older people chuckled at the idea that pornography could be truly harmful.
But the world the chucklers grew up in was fundamentally different from the world we live in today. There is no comparison between a stack of Playboys underneath a friend’s father’s bed and the tidal wave of vile content online.
“In 2019,” Thomas wrote, “Pornhub, one of the websites involved in this case, published 1.36 million hours — or over 150 years — of new content.” But the problem extends well beyond the sheer volume of pornography. Citing my colleague Nick Kristof’s vitally important 2020 report “The Children of Pornhub,” Thomas explained that “many of these readily accessible videos portray men raping and physically assaulting women — a far cry from the still images that made up the bulk of online pornography in the 1990s.”
It is a grotesque industry that produces content like this. An even worse industry makes it available to children.
Against this backdrop, Thomas was right about the outcome, but Kagan was right about the test. A law aimed at the content of speech should receive strict scrutiny, but Texas’ law should still have survived even the most exacting review.
A generation ago, the Supreme Court struck down efforts to age-limit access to porn websites. The technology was too primitive, and besides, aren’t there other ways to limit kids’ access to pornography? Can’t parents supervise their children? Can’t blocking technology protect young eyes?
After more than two decades of effort, the answer is clear: no. Parents can’t protect their kids on their own. Blocking software is laughably inadequate. A 2023 study found that the average age of first exposure to pornography is 12, and 15 percent of teenagers reported first seeing pornography when they were 10 years old or younger.
Exposure to pornography at that young an age has a powerful effect on developing minds. A 2017 study, for example, found that early exposure to pornography caused young men to desire power over women. As we know, power is a poor substitute for intimacy and connection.
No one thinks that the Texas law will solve the problem of childhood exposure to porn. There are simply too many workarounds, including the use of virtual private networks, better known as V.P.N.s. But even raising a speed bump is worth the small incidental burden on adult rights. If showing identification is necessary to enter an adult bookstore, it should also be necessary to enter a pornographic website.
But there’s an even deeper and more profound justification for the Texas law. Limiting access to pornography doesn’t simply provide a legal barrier; it helps grant parents and teachers breathing space to replace the depravity of pornography with a different and far superior moral message: a woman is a person to be loved, not an object of gratification.
Source photographs by Heritage Images/Getty Images.
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David French is an Opinion columnist, writing about law, culture, religion and armed conflict. He is a veteran of Operation Iraqi Freedom and a former constitutional litigator. His most recent book is “Divided We Fall: America’s Secession Threat and How to Restore Our Nation.” You can follow him on Threads (@davidfrenchjag).
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