July 10, 2025 • 46 mins
On June 27th, the Supreme Court ruled in Free Speech Coalition v. Paxton that Texas’s age-verification law did not violate the First Amendment's Free Speech Clause. Justice Thomas wrote the Court’s opinion, holding that States had a right to protect children from obscenity, even if that meant incidentally burdening adults’ own access to that content. Many are celebrating the 6-3 decision as a victory for the protection of children, as it will cement similar laws in the 21 other states that have implemented them. Yet, as in Justice Kagan's dissent, others worry about Paxton’s implications for Freedom of Speech in the digital age. When does an incidental burden become a substantial violation of adults' First Amendment Rights? What kind of precedent does Paxton set for speech cases going forward?
Featuring:
Ashkhen Kazaryan, Senior Legal Fellow, The Future of Free Speech, Vanderbilt University
Clare Morell, Fellow, Ethics & Public Policy Center
Bailey Sanchez, Deputy Director of U.S. Legislation, FUture of Privacy Forum
[Moderator] Jennifer Huddleston, Senior Fellow, Technology Policy, Cato Institute
Featuring:
Ashkhen Kazaryan, Senior Legal Fellow, The Future of Free Speech, Vanderbilt University
Clare Morell, Fellow, Ethics & Public Policy Center
Bailey Sanchez, Deputy Director of U.S. Legislation, FUture of Privacy Forum
[Moderator] Jennifer Huddleston, Senior Fellow, Technology Policy, Cato Institute
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:02):
Welcome to the Regulatory Transparency Project's Fourth Branch podcast series.
All expressions of opinion are those of the speaker.
Speaker 2 (00:18):
Hello, and welcome to the Federalist Societies Regulatory Transparency Projects
Fourth Branch podcast. My name is Libby Dickinson and I
am an assistant director with RTP and the Federalist Society's
practice groups. As a reminder, all opinions expressed are those
of the speakers and not of the Federalists Society. Today
we are joined by a fantastic group of tech and
legal experts to discuss the recent Supreme Court decision in
(00:41):
Free Speech Coalition v.
Speaker 3 (00:43):
Paxton.
Speaker 2 (00:44):
Our speakers today include Ash Kazarian, Senior Legal Fellow with
the Future of Free Speech at Vanderbilt University, Claire Morrell,
Fellow at the Ethics and Public Policy Center, and Bailey Sanchez,
the Deputy Director of US Legislation and at the Future
of Privacy Form. Our moderator today is Jennifer Huddleston, Senior
(01:05):
Fellow of Technology Policy at the Cato Institute. Thank you
all so much for joining us today. I'll start by
handing things over to Jennifer.
Speaker 4 (01:13):
Thank you so much, and thank you for this great panel.
For basically getting the band back together, so to speak.
As some regular listeners of this podcast may know, probably
a few months ago now, we had a similar podcast
with Claire and Bailey and Shoshana Weissman instead of Ash
at that point to discuss the oral arguments in the
(01:37):
Free Speech Coalition v. Paston case. This case recently came
down from the Supreme Court. At issue was a Texas
law that was aimed at protecting young people online from
potentially content considered sexual content considered harmful to children. So
(01:59):
this includes things like obscenity and pornography. But there was
a lot of debate about was the law actually broader
than that some very specifics of this law, which is
a similar model that we've seen in other states. So
now that we know what the court actually thinks about
some of the issues that came up in our previous
podcast as it relates to the potential impact on adult
(02:19):
speech rights, the potential concerns around privacy as well as
you know, was this issue specific to young people's access
to this type of potential sexual or pornographic content, or
were we going to see the court engage in a
broader discussion of some of young people's access to the.
Speaker 5 (02:39):
Internet more generally. I'm excited to kind of.
Speaker 4 (02:43):
Get this group of experts back together to hear more thoughts.
So I guess just to start off with you know,
as I mentioned, we all were discussing this shortly after
oral arguments. We now have a decision written by Justice
Thomas in favor of upholding the Texas law. Is this
that's what you expected to see in this case? And
why or why not? And Claire, I'll start with.
Speaker 6 (03:06):
You maybe saw me grinning through my camera. No, I
will say that I was cautiously optimistic that this is
how the court was going to come down. I was
in the courtroom for or arguments, and my sense of
where the justices were leaning was that they were really
trying to actually allow a path for Texas and other
(03:26):
states to legislate in this area. They were recognizing the
compelling interest states have in protecting children from online obscenity,
and they were really trying to make it clear that
we don't want to have two different constitutional regimes, one
that governs the real world and one that governs the
online world. And so there was a lot of talk
about how these age verification laws we've accepted in the
(03:46):
real world for decades now in brick and mortar stores,
and that this Texas law was applying that type of
law to the online space. And so I was thrilled
personally to see the ruling come down this way, in
particular to see that the court.
Speaker 3 (04:04):
Applied intermediate scrutiny.
Speaker 6 (04:06):
And we can get into this more details about why
I think that's actually significant even beyond just this Texas law,
but I was really encouraged to see the Court recognizing,
you know, Justice Thomas wrote the opinion that this work
of states needing to balance the free speech rights of
adults with their compelling interest in protecting children from obscenity
(04:26):
required the more nuanced work of intermediate scrutiny, and that
the burden. And I want to just acknowledge because I
know others on this call will probably disagree with my
take on this ruling, but I want to acknowledge that
the Court was really clear that there was an incidental
burden on adults rights to speech in this case. It
didn't say that there was no burden. It recognized there
(04:48):
was a burden, but that it was incidental. And part
of that is that they recognized, you know, this law
was different than the laws at issue in the past
precedence of Ashcroft and Reno. This law was not banning
adults from being able to post this type of content
or even to be able to access it. It was
just requiring this Texas laws just requiring adults to verify
(05:11):
their age before accessing, which is a hurdle that is
now given the technology available, easy for adults to overcome,
but it is actually an effective hurdle at shielding children
from the obscene content.
Speaker 3 (05:24):
And I just want to note that.
Speaker 6 (05:26):
The opinion said it is misleading in the extreme to
assume that Reno and Ashcroft spoke to the circumstances of
this case simply because they both dealt with the Internet
as it existed in the nineteen nineties. And they say
the appropriate standard of scrutiny in the Texas case is
a question that no prior decision of the court has
squarely addressed. And so the decision really went into a
(05:48):
lot of detail to distinguish this law from the laws
at issue in Reno and Ashcroft, and to make clear
that this law ruling deciding the level of scrutiny to
apply to this law was circumstance that the Court had
never squarely taken on either of those cases whether age
verification for pornography websites is constitutional or not, and that
(06:10):
was the question that this case took on, and they
said it deserves intermediate scrutiny, and that adults have no
First Amendment right to avoid age verification. That again, any
burden on adults First Amendment rights was incidental, and so
I just, yeah, I'm thrilled by the ruling. I could
not be happier. And we can get into the other
implications that I'm hoping to see from this ruling in
(06:34):
your server questions.
Speaker 7 (06:35):
Claire, can I ask part of Jennifer's question is just like,
what was surprising about this decision?
Speaker 3 (06:41):
I feel like.
Speaker 7 (06:41):
There was so much discussion back in January and like
leading up to this case about you know, rational basis
or strict scrutiny. Again, listening to oral arguments, I think
it was not super surprising things went this way. But
I was very surprised to see the Court did not
apply strict scrutiny. And I find it a little bit
hard to understand how they arrived at the intermediate scrutiny.
(07:04):
And I think that's a lot of what the descent
talks about. It's just that, like, you know, this was
a clear slam dunk strict scrutiny applies. Was it surprising
to you that they arrived at the conclusion the way
they did?
Speaker 6 (07:16):
You know, I have to say I was a little
bit pleasantly surprised.
Speaker 3 (07:20):
I didn't know exactly how they were going to come down.
Speaker 6 (07:23):
I didn't think that they would apply rational basis that
didn't seem to be where they were leaning. But it
also felt like they were really poking a lot of
holes and why strict scrutiny would apply. I don't necessarily
think I anticipated necessarily them applying intermediate I was kind
of curious to see if they would, you know, apply
strict scrutiny but poke some holes and how it should
(07:43):
apply to these types of laws. So I guess I
just I don't ever purport to be able to predict
exactly where the justices are going to come down, but
I will say I was pleasantly surprised with the application
of intermediate scrutiny. I didn't want to assume that that's
where they would go. But I'm obviously I'm very glad
that they did.
Speaker 5 (08:04):
Bailey, you kind of jumped in there.
Speaker 4 (08:06):
I'm curious, you know, you were part of our prior conversation.
How did this reflect with what you thought might happen.
Any specifics of the ruling that kind of stood out
to you?
Speaker 7 (08:18):
Yeah, so again, like, I think after listening to oral arguments,
it felt like the court seemed to kind of like,
like does Claire mentioned, like want to figure out a
path for state lawmakers to make this type of regulation work.
I think what surprised me, besides the intermediate scrutiny being applied,
was that, I think just as Thomas seemed to kind
(08:38):
of just like take it as a given that, like
the technology is in place, it works, it's good, there's
no issues. I don't think there was actually really much
discussion of like age verification technology at all. I think,
I mean there was like pieces here and there, but
a lot of the discussion focused on like the specific
facts of this being porn and porn being harmful to kids,
(08:59):
and like the state important interest in like protecting kids
from harmful content or perceived harmful content. But I think
the court kind of like kind of handwaved away any
like concerns raised by advocates about you know, like concerns
with age verification or likelihood of like data breaches or anything.
(09:20):
Just as Thomas kind of reasoned that, you know, like
the porn industry has always been subject to kind of
like social stigma, and to protect the interests of like
the consumers of that that porn companies have like a
really high incentive to make sure that age verification is
safe and secure. But also, you know, you can only
(09:42):
do so much to prevent data breach. Sometimes they just happen.
And I'm not saying that they happen like all the
time in the very commonplace, but I think it surprised
me just how quickly the court kind of like put
aside those arguments on the technology, because I think whether
or not the technology is effective and works and is
(10:03):
minimally invasive for adults is actually really a key question
here and arriving at like whether or not it survives
any type of scrutiny.
Speaker 4 (10:12):
Ash, I'm curious for your thoughts, and maybe you could
also talk a little bit about what we saw in
Justice Kaigan's dissent from the court as well.
Speaker 8 (10:21):
Oh Man, Okay, So I will start by saying that
I was completely surprised by the decision. My prediction was
that the Supreme Court was going to rule for a
spree speech coalition, but narrowly and leave the door open
applies strict scrutiny, and live the door open for there
will be soon enough age verification technology that would meet
the privacy concerns and so leave the door open for that,
(10:43):
but still applies to ex scrutiny. So I was obviously
wrong of how the Court was going to rule. I
know some people who also participate in this policy and
legal debate have called me out on it. I'll say,
I mean, reality is reality. I will never deny it.
Speaker 3 (10:59):
So that's one I.
Speaker 8 (11:01):
Want to quickly say, because we've already kind of started
diving into because you know, we're all very passionate and
experience in the space, we've been diving into this and
one thing I want to say, and for what it's worth,
I think Justice Kagan also addresses it. So Claire mentioned
the Ashgruff and Reno as just as Thomas said, not
(11:22):
applying to the Internet that we know today, because it
was different when those rulings came down. What Justice Kagan
says and her dissent is well, yes the facts are different,
but doesn't mean you get rid of strict scrutiny. You
apply strict scrutiny to a different set of facts, and
then you see where you arrive. And I believe she
also doesn't dismiss the fact that maybe even if you
(11:44):
applied strict scrutiny, this slaw would have survived the constitutional challenge,
but we never got to that. Instead, we kind of
according to her and me, I would say, I mean,
that's kind of an ablusional sentence to put myself with
Jessice Kagan. But I agree with Jessic Kiegan that this
decision pretty much not guts but rearranges for some women
(12:09):
doctrine in ways that we can't even predict. We're going
to have to see play out because we know on
Ashcroft now who knows how much they apply. And I
know you have a question about that too, so I'll
let you lead us there.
Speaker 4 (12:24):
Yeah, So that kind of opens up the kind of
question of you know, we talked a little bit about
what was said in this case, but of course the
next phase of any Supreme Court ruling is kind of
what does this mean? And this case occurs both as
we are seeing various legal challenges work their way through
the courts over perhaps some broader age verification, age appropriate design,
(12:47):
and age assurance laws, things that either focus on aspects
of the Internet, like social media, things that focus on
the way content may be displayed on various websites, as
well as laws that say, look at perhaps doing age
verification or age assurance at an app store or device level.
Speaker 5 (13:09):
You know what.
Speaker 4 (13:10):
It will, of course see what the lower courts interpret
this decision as. But is there anything that stood out
to you guys as how broad or how narrow the
court may intend for this decision to be reached.
Speaker 5 (13:24):
Is this, at the end of the.
Speaker 4 (13:25):
Day, really a decision that is about protecting young people
from pornography? Or did it give any broader indications as
to how the court might think about age verification and
what would be a more general context.
Speaker 3 (13:43):
I'm heavy, Oh so go ahead, Ash, you know you start.
Speaker 5 (13:49):
I'll be short.
Speaker 8 (13:50):
I think on its kind of on the first read,
it reached formally narrow, right it limited to sexual content
and harmful to minors, specifically target websites that have thirty
three percent or one third of its content preserves adults
access in theory. But I think functionally it is broad
(14:10):
because it erodes the boundary between strict and intermediate scrutiny.
As I said, I'm not sure how we know an
ashcroft apply and exist now, and we're going to have
to see how courts play it out. I think it
also invents a new as the first timment lawyer, it's
like slightly exciting, but not really. It invents a new
category of partially protected speech. So we're going to have
(14:32):
to figure out what that means. So that means again
courts are going to run. There are all of these
groups and interests in folks who are going to try
and test this theory.
Speaker 5 (14:40):
And then it.
Speaker 8 (14:41):
Also I think creates a roadmap for broader regulation. Right
every time Supreme Court rules on any issue, it gives
tools and structures to everyone who cares and wants to
participate in this public policy and legal debate on how
to structure ways to reach their goals on its space.
(15:01):
You can save they try to be narrow, and I
think there were still narrow a narrowed a bit even
what the Fifth Circuit was doing, right, they weren't doing
rational basis. But at the same time, I think it's
functionally broad and we're going to see a lot of
litigation trying to figure out what's what's next for free
speech and a lot of different areas.
Speaker 7 (15:21):
Can I jump in before Yeah, I think my conclusion
is pretty similar to Ashes, Like, I think, like the
court spends quite a bit of time talking about, like
you know, like the obscene and harmful nature of like
porn specifically, it seems like Justice Thomas I think is
perhaps a little skeptical that that is like protected speech
(15:44):
at all, even though I think Justice Kegan concludes that
like a lot of the speech at issue here is
like protected speech. But I think to Ash's point, like
what I take away from this case is that, like
you know, if I was like a law professor trying
to explain like what the rule here is or what
the takeaways are and how this would apply to a
different set of facts, I find it like a little
(16:07):
little confusing and a little hard to parse, because, like
you know, the court held that this regulates access to
material deemed harmful the minors, not content. But to me,
this is a law that like very clearly is about
regulating content. So I think when we take away the
porn component to it and try to apply it to
a different set of facts, it's just hard to me
(16:30):
how to decide, you know, what's only about access and
what's about content. I understand. I think the distinctions that
they made with Reno and Ashcroft, that those laws are
about kind of just you know, prohibiting content at all.
But I feel like this is maybe distinction without difference,
and they kind of like functionally arrive at the same conclusion.
(16:50):
So clear, I'd be interested to hear your take and like,
you know, how you think this apply is going forward
given that, like you're a bit more happy about the decisions.
Speaker 3 (17:00):
I'm sorry, I can't hide my happiness. I will.
Speaker 6 (17:03):
I'll just start by saying, I think in terms of
the implications for what this court means for other laws,
I think by applying intermediate scrutiny, you know, the court
says like the First Amendment imposes no free standing under
inclusiveness limitation and that Texas need not address all aspects
of a problem in one fell swoop. So part of
(17:24):
the kind of historic nature of this decision was that
by not applying strict scrutiny, they were kind of setting
the least restricted means tests aside, and that just opens
up a lot more options for state legislatures. And Congress
that they have actually more latitude and flexibility to address
the problem of protecting kids from online obscenity.
Speaker 3 (17:45):
I'd be really cautious.
Speaker 6 (17:47):
To broaden it beyond that type of law, like again,
the compelling state interest to protect kids from online obscenity,
because I think some people seem very eager to try
to say, oh, this will now apply to age verification
for social media or app stores. While I might personally
be in favor of some of those laws, I think
different arguments will have to be made because, like we're
(18:09):
just talking about, this case is really narrow to the
question of is it constitutional to restrict the access to
obscene content online? And the question really an issue was
about age verification and whether or not that it's constitutional.
And again, the Court was really clear that adults have
no First Amendment right to avoid age verification.
Speaker 3 (18:30):
That's what Justice Thomas wrote in the opinion.
Speaker 6 (18:32):
But they met in the context of restricting access to
online obscenity. And so I think some people are taking
that sentence out of context and saying this is great,
this means we have this for social media and app
stores too, And I'm like, it could mean that, but
they're just different arguments will have to be made, because again,
the thrust of the argument in this case was about
protecting children from online obscenity restricting the access to those
(18:56):
kinds of websites.
Speaker 3 (18:57):
So I guess I'm in two parts.
Speaker 6 (19:00):
I'll just wrap it up by saying, I think it's
a yes to giving the states more flexibility and freedom
to legislate in the area of protecting kids from online obscenity,
that they could pass more laws and regulations in this
area to address different aspects of the problem. The Court
was basically saying states could go after this problem from
multiple angles since they no longer have the limitation of
(19:23):
having to prove that a single law is the least
restrictive means. But in terms of applying that to broader
internet regulations, social media app stores, you know, I think
that's still untested because that wasn't at issue in this case,
and some people might want to read into it. I'm
a little bit more cautious to kind of take this
case for the facts of this case instead of being
(19:46):
really quick to take like one sentence from the opinion
that says, you know, adults have no first moment right
to avoid age verification and apply that to other contexts.
You know, Justice Thomas meant that in the context of
restricting access to obscenity online ofsnd ME websites, and so
I think will have to be it just it remains
to be seen what broader ramifications this case will have
(20:06):
or not.
Speaker 7 (20:07):
I feel like part of the reason it's getting taken
out of context, though, is maybe how the Court approached
the decision, because you know, like just As Thomas focused
on things not just obscenity, but obscenity for children, and
I think that was perhaps a different understanding of how
like the Supreme Court has addressed like obscenity jurisprudence. It's
been like some sort of objective reasonable person standard essentially.
(20:30):
I don't remember the exact wording, but I think like
obscenity for children is probably a much lower bar. And
I think when I think about potential implications of this case,
I think about, you know, how in a particular state
define what's obscene for children? You know, does that include
like LGBTQ content, Does that include information on like gender affirming?
(20:54):
Here is that that might be protected speech for adults,
But is that something that like a particular state might
consider seeing for children, And I take your point, and like,
I agree that, Like I think the facts of this
case seem to be very narrow, but just based on
like the court's arguments that they made and how they
really laid out things, I feel like it's just not
a very like clean, easy to apply decision.
Speaker 3 (21:17):
And we might disagree.
Speaker 5 (21:18):
Oh go ahead, Oh go ahead, Claire.
Speaker 3 (21:21):
No, I'm just saying, God.
Speaker 6 (21:23):
Right, Well, I was just gonna say to Bailey, like,
and we might disagree on that. Like, I personally am
in favor of states having more flexibility to define what
is obscene to minors. And again, in a law that's
not saying adults can't post that type of content or
can't access that type of content, it's not a ban
on that type of content. It just puts this hurdle
of age verification in place. And so I'm actually for
(21:45):
states having more flexibility to define that.
Speaker 3 (21:47):
I understand that the terms.
Speaker 6 (21:48):
Again, yes, Justice Thomas uses that term of seeing as
to minors a lot, and so I do think that
they are and other course cases recognize that that states
actually have more latitude and defining obscenist to minors. But
that again like, I really do think this case is
all about access, and that's what the court said that
this is it's what is that issue is this activity
(22:11):
of age verification and that again adults don't have a
first modment right to avoid that activity, and that's why
they apply it in the media. And I realized we
might disagree on the merits of that, but I am
actually for states having a little bit more flexibility of
how to define that and still having adults be able
to access any of that material once they provide age verification.
Speaker 3 (22:31):
But sorry, Ash, I interrupted you. No, no, you're good.
Speaker 8 (22:33):
I just wanted this is perfect because I just wanted
to close the loop on this question by saying, I
think our answers, even if we disagree on a lot
of the things, our answer pros my point that there's
going to be a lot of new interpretation.
Speaker 3 (22:45):
And this decision is functionally.
Speaker 8 (22:47):
Broad because one way or another, there's going to be
a lot of testing of the new waters of First
Amendment doctrine.
Speaker 4 (22:55):
Well, you know, one of the things in terms of
First Amendment doctrine in potential applications this brings up is
the fact that this was a facial challenge to this
law not and as applied challenge. And there's been also
a lot of debate to the conversation that was going
on here about how broadly this law could be interpreted
and what options might be available to websites that are
(23:18):
perhaps more general websites that may have meet the threshold,
but that's not the majority of their content. Is it
possible to age verify only for access to certain portions
of a website or would a website have to age
verify for everything? How broadly as what's kind of alluded to,
is content sexual content that's not deemed harmful to minors
(23:41):
going to be interpreted by states? Is this going to
be something seen in kind of that traditional pornographic content
or does it open the possibility of broader definitions. I'm
curious to kind of our panel of experts here, what
do you think this means with regards to kind of
ongoing discourse we've seen about versus as applied challenges. Do
(24:02):
you think that this conversation will continue or change any
once we start to see a potential enforcement of the law.
Speaker 3 (24:15):
I mean, that's hard to predict.
Speaker 6 (24:16):
I will say, while it was you know, a facial
challenge the Texas law because the Fifth Circuit stayed the
District court a junction. The Texas law was allowed to
go into effect, you know, while this appeal up to
the Supreme Court was ongoing. And so the Texas law
took effect like November fourteenth, I think of twenty twenty three,
and the state attorney general used that to sue a
(24:39):
bunch of the major pornography websites. Pornhub decided rather than
comply to just leave the state others, they reached a
settlement agreement with where they agreed to implement certain age
verification measures.
Speaker 3 (24:51):
And so to me, I'm actually.
Speaker 6 (24:53):
Excited because it proves the point of the necessity these laws,
that the implementation actually means that kids are more effectively
being protected, that the states actually have an ability to
enforce the laws. So I don't know if I can
speak to predicting the facial versus like you know, the
fact of challenge, like how that will play out, but
(25:14):
it is interesting to start seeing some of these laws
actually take effect. So I'm kind of curious to see
what happens.
Speaker 4 (25:23):
Sure, Bailey, Bailey, you look like you're about to say something.
Speaker 5 (25:26):
I thought.
Speaker 7 (25:27):
So that was discussed a little bit in the opinion.
I thought the fact that this was a pre enforcement
facial challenge, or I guess technically it was kind of
enforced a facial challenge would come up more in the
decision than it did. I feel like, ever since the
Moody decision last year, I feel like that has really
been something that I've been paying a close attention to
(25:48):
because you know, this case actually was not brought by
net Choice, but quite a few of these, like online
safety laws, are brought by net Choice. I noticed that
like their Net Choice lawsuit against Maryland's ADC that was
is I think that was a facial challenge in and
as applied challenge because the law went into effect, and
I feel like the court is signaling again that like
(26:09):
they are not going to want to definitively like rule
on things while there's not a very robust record, and
so I think while the Texas law can go into effect,
I'm interested to see how that will work in other states,
because again I think like over a dozen states have
this type of law, but they're not all exactly like
(26:29):
a copy and paste, like there might be some variants
and how the state defines like what is obscene, like
what percentage you need to have of pourn on your
site to be in scope, and so I think that'll
this is definitely something to watch. I don't know if
I have any clear takeaways, but it's an issue that
I think is under discussed but important.
Speaker 8 (26:51):
Great question, Jennifer. I think I'm still also processing. But
I pulled up the decision and I think it does
two things. It narrows facial challenges for kind of two things,
first one being the incidental burden, and then the second
one being I think there's like a footnote that cites
(27:12):
United States Vie Hansen and says a facial firsummon challenge
succeeds only substantial number of laws applications are unconstitutional. So
this means implication for future But facial challenges for online
agorification have gotten much harder. You plaintiffs would have to
show that the majority of applications involve protected speech, and
(27:33):
then that the burden is substantial across those applications, and
then that the statute cannot be narrowly construed or safe
by judicial interpretation. And I think that's a steep climb,
right If I'm right about this, Again, we don't know
what happens, so I think as appliant, litigation will become
(27:54):
the full background.
Speaker 4 (27:56):
You know, as you said, we're still very much in
the kind of immediate after and we don't know what
happens phase. But needless to say, this decision has spurred
a lot of discourse. What do you think is the
biggest misunderstanding about what the court ruled in this particular case.
Speaker 8 (28:24):
That's a great question. I'm just like processing it.
Speaker 6 (28:26):
I know, I'm like thinking about it because I also
feel like I'm kind of on the winning side here.
I'm like, I guess, like you know, obviously you all
may have more concerns about how the rulings misunderstood.
Speaker 3 (28:40):
I would just say I think by.
Speaker 6 (28:42):
People who disagree with me, I think sometimes it's misunderstood
just in general what these age verification laws are doing.
And so I would just point people to the decision
to just say, again, it's not saying that adults can't
post or access to type of content. It's really all
about whether or not the activity of age verification and
(29:02):
requiring that of pornography websites is constitutional or not. And
so I think you have to really be clear in
this decision. It's not banning this speech for adults. It
is just requiring age verification. And that's I think the
point that was most clear from the decision is just
this concept that adults don't have a First Amendment right
to avoid age verification.
Speaker 3 (29:24):
They have a First Amendment right to access this speech.
Speaker 6 (29:26):
But accessing that speech now through this Texas law and
these other laws, entails some type of age verification measure
in order to effectively.
Speaker 3 (29:35):
Keep kids from it.
Speaker 6 (29:36):
So I think sometimes the purpose of the law and
then this decision can be misunderstood in terms of what
it's actually saying is constitutional, and so I would just
say that that's something to pay attention to.
Speaker 8 (29:48):
I think what is misunderstood slash not really discussed that
really was triggering to me was the anonymous speech aspect
of it. I think the anonymous speech comes into and
its existence is now there's a big question er creeping
you know, clouds in the background to it because an
(30:09):
anonymous speech has been protected since you know, the Federalist
papers were written under synonyms.
Speaker 3 (30:13):
There was a reason for that.
Speaker 8 (30:15):
And so my biggest thing that I don't think we're
talking enough about is we're processing and discussing this decision,
is what this means for anonymous speech.
Speaker 7 (30:27):
Ash I just did a control f because that was
a great point. And the word anonymous, unless I'm spelling
it wrong, is not in the decision at all. Like again,
to my point before, there really just was not a
discussion of the age verification technology. I thought that would
really be part of how they distinguished from ashcrofton RENO
(30:48):
is just discussing how much the technology has evolved. It's
much less invasive.
Speaker 3 (30:52):
Blah blah blah.
Speaker 7 (30:53):
I feel like the court just, you know, again just
hand waved and was like, yeah, it's different than it
was before. I think an under discussed point will be that,
like I don't it wasn't clear to me how the
court measured that it was an incidental burden. Again, like
it's hard to get to that, like this is only
incidental when there's not like a very robust discussion of
(31:14):
the technology as it applies to online. I think, like
just as Thomas spent a bunch of time talking about,
you know, showing your ID when you go to buy
alcohol or something like that, but that is just a
different process than online. I think there are definitely like
privacy more privacy friendly ways of doing age verification, and
I thought that would be a really interesting thing that
the court could have talked about, but they did not,
(31:35):
And I think that maybe speaks to the fact that
this was a facial challenge and there just wasn't a
very like robust record. And I think another point that
has been under discussed on that is that Justice Thomas
kind of used like existing industry practices as like evidence
that this is like doable. You know, he mentioned that, like,
(31:55):
you know, for decades peorn companies have been collecting age information,
which I one, I'm not one hundred percent sure how
true that is, because I thought that was like why
these laws were passed in the first place. And two,
I think it is interesting in something to watch that
just industry practices, industry self regulating will be used as
(32:18):
evidence to kind of like retroactively kind of justify legislation. So,
you know, I could see a world where there's some
social media companies that have started to proactively take more
steps in that age verification space, and perhaps like a
court would use that as evidence to say, you know,
like if this, if X company is doing it, why
is why company not doing it? But if there are
(32:41):
porn companies that were doing age verification before they might
have had their own, like you know, just reasons to
do it. Like I think like OnlyFans does pretty robust
like identity verification to make sure that people are above
eighteen when they're posting. That makes a whole lot of sense.
I think porn have does the same for people that post.
I don't think they do it necessarily for the people
that are like viewers, but those are like very like
(33:04):
specific business reasons why they do it not necessarily weighs
thelign with the what the Texas legislature has in mind
for these types of laws.
Speaker 6 (33:14):
Can I just push back really briefly, I think, like
to me with the point that the decision was trying
to make is that like adults may have a right
to access.
Speaker 3 (33:24):
This, but they don't have a right to avoid age verification,
and that accessing this type.
Speaker 6 (33:30):
Of speech in the real world is actually a lot
less anonymous than online, Like I actually wish they had
gone into some more specifics on the technology that's available
online to actually show that it's like more anonymous to
access this on the Internet than it is to go
to a brick and mortar store and purchase a pornographic magazine.
Like it's a lot less anonymous that you actually have
(33:50):
to go in person and someone could identify you at
that store purchasing that thing showing your age. And so
I think again, like we've I thought it was really
critical that the case was trying to explain, like we've
accepted this in the real world.
Speaker 3 (34:06):
It's a common sense solution.
Speaker 6 (34:08):
We need to bring kind of our you know, constitutional
regime and the virtual world into alignment with the real world.
And that was actually one of the big points that
Justice Thomas pushed back against the dissent about was that
if the strict scrutiny applied, it would call into question
all these brick and mortar store age verification laws and
so on the point of anonymous speech, I actually think
(34:31):
that this the way that age verification is conducted online
and how these laws are being how this law is
being applied, and the decision was made it is still
protecting of adults right to anonymous speech.
Speaker 3 (34:44):
I realized they didn't discuss that.
Speaker 6 (34:46):
I wish they had gone into where the specifics of
the age verification technologies available, but I appreciated that Justice
Thomas did note the age verification is even more imperative
in the virtual world than the real world because it's
easier to be in on the miss online. He actually
points that out, it's like easier for a child to
pose as an adults, and so the need for areage
(35:06):
verification the online world is actually even greater than a
brick and mortar store, where a cashier could probably tell
roughly whether or not a person is a minor or not.
So I thought he kind of made that point coming
from the other side, how the and the anonymity online
really necessitates more effective age verification.
Speaker 3 (35:24):
But Bailey, I will agree with you. I wish that
they had.
Speaker 6 (35:26):
Actually gone into more details about the current technologies available
and actually, you know, from my side, showed that they
are more privacy protecting for adults and in ways that
are actually even more anonymous than purchasing obscenity in the
real world would be.
Speaker 3 (35:40):
But that's just my that's my hot take.
Speaker 4 (35:42):
So Bailey and ash, I want to kind of ask
you about this because this does seem to have been
a key portion of the decision of this question of
is the internet different than online I'm sorry, is the
internet different than the offline world? And was this, you know,
more or less than showing your driver's license to a cashier.
(36:03):
You know that certainly came up during oral arguments. I
know we discussed it a bit then, but that seems
to have been a big point of justice. Is Thomas's
opinion is seeing this or or stating that he had
concerns that applying scrutiny could undermine these these other laws
as well. I'm curious to your thoughts of is there
(36:25):
a distinction in the online and offline world here that
you would have liked the court to recognize or is
there or is this something where the the online offline
analogy still works?
Speaker 8 (36:39):
So I think this is a really bad analogy I'm
going to use. But Claire has a very strong Pokemon
of like Justice Thomas right, he's writing for a majority.
I have a weaker lot of Justice KG and writing
for descent. But I'm going to still play my Pokemon
in this. In this case, I'm saying, uh, millennials on
the podcast. But basically what Jessic Kingan says right and
(37:03):
what I agree with, is when you flash your ID
to a store clerk, the store clerk doesn't write down
your name, doesn't write down your information, doesn't store it.
And that's a very big difference from what happens online.
And I believe the way of a law is written,
it basically doesn't say anything. It doesn't require. It says
(37:27):
the website should doesn't have to retain the identifying information,
but transmission of that information is not prohibited. There's no
monitoring or reporting requirement, which means that when you flash
your ID in online world, that the chilling of a
speech and the burden that can happen with well, what
(37:49):
happens with my information? We just had I think, like
within the last month a huge data breach across Microsoft.
Never platforms like this constantly happens, and that doesn't happen
in a brig and mortar situation. And yeah, that's why
I think the facts are very different here. And I
know my Pokemon is weaker because it is the decent,
(38:11):
but I do think there's a very big difference, and
I actually agree, like the technology has also changed. The
Internet is bigger and faster, and our privacy is less
and less protected every day. I recently went through an
airport and I turned around and I saw the screen
of agent and they just scan the face and they
have all of your information. Right fat you don't enough
(38:32):
time enough time to like opt out of it, and
also you don't have a convenience of it. But yeah,
I just I just think we are more and more
going into that utopian black mirror surveillance state. And I'm
going to turn over to Bailey Horse for a Future
of Privacy Form to talk about that aspect of it.
But to me, there there's a big difference. And I think, yeah,
(38:53):
focusing on brig and mortar was a way to reach
the policy goal that the majority had in mind, but
I don't think it's the right application.
Speaker 7 (39:01):
Yeah, I think the online space is very different from
the in person space, and like to Clear's point, though,
I don't I think that you can kind of, you know,
create some like reasonable guardrails with online Like I don't
think it needs to be like a lawless space necessarily,
but I think that, you know, looking at like the
(39:23):
chilling effects, people just don't want to do age verification
for like adult services like under Kappa, which side note
the majority, I think this is just the fault of
Congress passing too many laws with similar names. COPA is
the law that was struck down, but Justice Thomas accidentally
(39:44):
refers to Kappa, the children's online Privacy Protection Act in
one part, I thought that was just like a fun
nod that even the Supreme Court justices can't keep COPA
and Kappa straight. So COPPA has been in effect since
nineteen ninety eight, and undercop OF parents are required to
give like parental consent for companies to collect their children's data.
(40:07):
And it is a huge problem of just like doing
that like verifiable printal consent because parents, you know, if
a company, again a very child friendly company, is like
give me your credit card or give me your ID,
they just often don't want to. There's lots of like
companies and like ad tech services that have like studies
on the drop off rates with doing parntal consent because
(40:30):
it's just like kind of like an inconvenience, and it's
also like a trust factor, like a parent is like,
why is my child on a website where they are
asking for my personal information? So I think even in
that like very like child friendly like safe environment, parents
are very hesitant to do that. So if you think
about you know, like a porn website, like if I
went to Pornhub, there is no way that I would
(40:52):
give porn Hub my ID or you know, a credit
card to verify my information, and again there's that requirement
under the law that's like, you know, don't keep the
information deleted after But I think it's really just like
a trust thing and like a chilling effect, and I
think people are just going to like maybe not bother
and maybe that's actually the intention of the law, but
(41:15):
I think that I think it's fair to say that
like age verification has come a long way in the
last twenty five years, but I think it is a
really tough argument to say that, like doing it in
person is exactly the same as online, because if it
was exactly the same, I think like it would be
a lot more widespread and a lot more websites would
be doing it.
Speaker 6 (41:35):
I would just basically say, like, unlike brick and mortar stores,
because I agree, it's not exactly the same online, but
online there's actually the option to have like third parties
conducting the verification so that the actual pornhub website is
not receiving any private information or personally identifying information about you,
which is more privacy protecting than if you have to
(41:57):
go to a brick and mortar store. And I mean
I can see it cheers do record some of those information.
Speaker 3 (42:02):
I often have them.
Speaker 6 (42:03):
I often see them type my birth date like into
whatever their records are. I'm sure they have to maintain
some type of records to prove that they're verifying that
the person that they're selling the alcohol to is over age,
So there is some record retention. But I understand what
you're saying, the concerns about where is my information.
Speaker 3 (42:19):
Who has access to it?
Speaker 6 (42:21):
So I'll just briefly say, like, more and more states
are adopting digital IDs, this digital type of driver's license,
and I know we've talked about it before, but Louisiana
has actually like implemented a very effective system, so much
so that while porn Hub has dropped out of like
seventeen states, they're still doing business in Louisiana because Louisiana
has made it easy for them to conduct the verification
with their digital IDs. You don't actually no information has
(42:45):
actually transmitted to porn Hub other than like whether or
not this person is over under eighteen because they can't.
There's a software affiliated with the digital ID called verify You,
and porn Hub, like the website itself says, you know,
do you have verify you Louisian And then if you do,
you click a button and it basically then you open
the app on your phone and just say yes or no,
(43:06):
like you know, porn hub whatever wants to know, can
we transmit to this website that you're over eighteen? And
then that's all that the digital ID sends to porn
hub is just this person is an adult. No information
about me, my birthday, my name, anything personal to me
is not actually given to porn hub itself. So I
do think more and more states are adopting these digital IDs,
(43:27):
and that there are ways to do a terification that
are actually more privacy protecting for adults than in the
real world because a third party who's conducting it that
is not actually transmitting any of this information to porn
hub itself, and so if porn hub were to have
a data breach, there would be no information there about
the user other than that they were over eighteen. So anyway,
that's that's my pushback. I realized that's not every state,
(43:50):
but I do think that this technology does exist now
to do this privacy protecting.
Speaker 7 (43:55):
Yeah, I think Louisiana is a really good example. I
think some of my like disappointment in this decision is
maybe just that like the regulation here perhaps jump the technology.
And I think this is very much like an evolving,
emerging space, and it feels like states are going to
retroactively go back and like maybe create some guardrails or
do some like innovation about developing ways to do this
(44:18):
so to.
Speaker 5 (44:19):
The I'll be really fast.
Speaker 8 (44:21):
In the Denver Consortium of Supreme Court was looking at
cable requirements for cable subscribers to a firmly request access
to adult channels and like struck it down because it
basically was talking about like even though that's the chilling speech.
So I think the question here is, yeah, we And
(44:43):
again I thought the Supreme Court was going to say,
sometime down the line, we're going to assess if the
technology is there, but we didn't even get to that
because they didn't apply strict scrutiny.
Speaker 5 (44:53):
Jennifer back to you.
Speaker 4 (44:54):
I was just going to say, I think this is
an emerging and evolving space. Kind of sums up so
where we are in this debate over a verification right now.
So I want to thank you all for being a
part of this conversation. Again, needless to say, this is
likely to be an ongoing conversation, as was mentioned, there
are other cases that are working their way through the
(45:16):
courts around related issues like age appropriate design codes and
age verification more generally, so I'm sure that we will
be having this panel that sports back to discuss similar
issues as relates to the balance between protecting young people online,
free speech and privacy. So I just want to take
(45:37):
this time to thank Ash, Bailey and Claire for joining
us today and to thank all of our listeners to
this Regulatory Transparency Project podcast.
Speaker 3 (45:47):
Awesome.
Speaker 2 (45:48):
Well, I'm going to throw that one back and thank
you so much Jennifer for moderating, and thank you again
to Bailey, Ash and Claire for joining us today and
for sharing your very thoughtful insights. Thank you to our
audience for tuning in today, and if you're interested in
learning more about all of our programming here at the
Federal Society and with RTP discussing the regulatory state in
(46:08):
the American wave of life, please visit the RTP website
at Regproject dot org.
Speaker 3 (46:13):
That is oregproject dot org. Thank you.
Speaker 1 (46:22):
On behalf of the Federal Society's Regulatory Transparency Project. Thanks
for tuning in to the Fourth Branch podcast to catch
every new episode when it's released. You can subscribe on
Apple Podcasts, Google Play, and Speaker for lays from RTP.
Please visit our website at regproject dot org. That's oregproject
dot org.
Speaker 3 (46:50):
This has been a FEDSC audio production
Welcome to the Regulatory Transparency Project's Fourth Branch podcast series.
All expressions of opinion are those of the speaker.
Speaker 2 (00:18):
Hello, and welcome to the Federalist Societies Regulatory Transparency Projects
Fourth Branch podcast. My name is Libby Dickinson and I
am an assistant director with RTP and the Federalist Society's
practice groups. As a reminder, all opinions expressed are those
of the speakers and not of the Federalists Society. Today
we are joined by a fantastic group of tech and
legal experts to discuss the recent Supreme Court decision in
(00:41):
Free Speech Coalition v.
Speaker 3 (00:43):
Paxton.
Speaker 2 (00:44):
Our speakers today include Ash Kazarian, Senior Legal Fellow with
the Future of Free Speech at Vanderbilt University, Claire Morrell,
Fellow at the Ethics and Public Policy Center, and Bailey Sanchez,
the Deputy Director of US Legislation and at the Future
of Privacy Form. Our moderator today is Jennifer Huddleston, Senior
(01:05):
Fellow of Technology Policy at the Cato Institute. Thank you
all so much for joining us today. I'll start by
handing things over to Jennifer.
Speaker 4 (01:13):
Thank you so much, and thank you for this great panel.
For basically getting the band back together, so to speak.
As some regular listeners of this podcast may know, probably
a few months ago now, we had a similar podcast
with Claire and Bailey and Shoshana Weissman instead of Ash
at that point to discuss the oral arguments in the
(01:37):
Free Speech Coalition v. Paston case. This case recently came
down from the Supreme Court. At issue was a Texas
law that was aimed at protecting young people online from
potentially content considered sexual content considered harmful to children. So
(01:59):
this includes things like obscenity and pornography. But there was
a lot of debate about was the law actually broader
than that some very specifics of this law, which is
a similar model that we've seen in other states. So
now that we know what the court actually thinks about
some of the issues that came up in our previous
podcast as it relates to the potential impact on adult
(02:19):
speech rights, the potential concerns around privacy as well as
you know, was this issue specific to young people's access
to this type of potential sexual or pornographic content, or
were we going to see the court engage in a
broader discussion of some of young people's access to the.
Speaker 5 (02:39):
Internet more generally. I'm excited to kind of.
Speaker 4 (02:43):
Get this group of experts back together to hear more thoughts.
So I guess just to start off with you know,
as I mentioned, we all were discussing this shortly after
oral arguments. We now have a decision written by Justice
Thomas in favor of upholding the Texas law. Is this
that's what you expected to see in this case? And
why or why not? And Claire, I'll start with.
Speaker 6 (03:06):
You maybe saw me grinning through my camera. No, I
will say that I was cautiously optimistic that this is
how the court was going to come down. I was
in the courtroom for or arguments, and my sense of
where the justices were leaning was that they were really
trying to actually allow a path for Texas and other
(03:26):
states to legislate in this area. They were recognizing the
compelling interest states have in protecting children from online obscenity,
and they were really trying to make it clear that
we don't want to have two different constitutional regimes, one
that governs the real world and one that governs the
online world. And so there was a lot of talk
about how these age verification laws we've accepted in the
(03:46):
real world for decades now in brick and mortar stores,
and that this Texas law was applying that type of
law to the online space. And so I was thrilled
personally to see the ruling come down this way, in
particular to see that the court.
Speaker 3 (04:04):
Applied intermediate scrutiny.
Speaker 6 (04:06):
And we can get into this more details about why
I think that's actually significant even beyond just this Texas law,
but I was really encouraged to see the Court recognizing,
you know, Justice Thomas wrote the opinion that this work
of states needing to balance the free speech rights of
adults with their compelling interest in protecting children from obscenity
(04:26):
required the more nuanced work of intermediate scrutiny, and that
the burden. And I want to just acknowledge because I
know others on this call will probably disagree with my
take on this ruling, but I want to acknowledge that
the Court was really clear that there was an incidental
burden on adults rights to speech in this case. It
didn't say that there was no burden. It recognized there
(04:48):
was a burden, but that it was incidental. And part
of that is that they recognized, you know, this law
was different than the laws at issue in the past
precedence of Ashcroft and Reno. This law was not banning
adults from being able to post this type of content
or even to be able to access it. It was
just requiring this Texas laws just requiring adults to verify
(05:11):
their age before accessing, which is a hurdle that is
now given the technology available, easy for adults to overcome,
but it is actually an effective hurdle at shielding children
from the obscene content.
Speaker 3 (05:24):
And I just want to note that.
Speaker 6 (05:26):
The opinion said it is misleading in the extreme to
assume that Reno and Ashcroft spoke to the circumstances of
this case simply because they both dealt with the Internet
as it existed in the nineteen nineties. And they say
the appropriate standard of scrutiny in the Texas case is
a question that no prior decision of the court has
squarely addressed. And so the decision really went into a
(05:48):
lot of detail to distinguish this law from the laws
at issue in Reno and Ashcroft, and to make clear
that this law ruling deciding the level of scrutiny to
apply to this law was circumstance that the Court had
never squarely taken on either of those cases whether age
verification for pornography websites is constitutional or not, and that
(06:10):
was the question that this case took on, and they
said it deserves intermediate scrutiny, and that adults have no
First Amendment right to avoid age verification. That again, any
burden on adults First Amendment rights was incidental, and so
I just, yeah, I'm thrilled by the ruling. I could
not be happier. And we can get into the other
implications that I'm hoping to see from this ruling in
(06:34):
your server questions.
Speaker 7 (06:35):
Claire, can I ask part of Jennifer's question is just like,
what was surprising about this decision?
Speaker 3 (06:41):
I feel like.
Speaker 7 (06:41):
There was so much discussion back in January and like
leading up to this case about you know, rational basis
or strict scrutiny. Again, listening to oral arguments, I think
it was not super surprising things went this way. But
I was very surprised to see the Court did not
apply strict scrutiny. And I find it a little bit
hard to understand how they arrived at the intermediate scrutiny.
(07:04):
And I think that's a lot of what the descent
talks about. It's just that, like, you know, this was
a clear slam dunk strict scrutiny applies. Was it surprising
to you that they arrived at the conclusion the way
they did?
Speaker 6 (07:16):
You know, I have to say I was a little
bit pleasantly surprised.
Speaker 3 (07:20):
I didn't know exactly how they were going to come down.
Speaker 6 (07:23):
I didn't think that they would apply rational basis that
didn't seem to be where they were leaning. But it
also felt like they were really poking a lot of
holes and why strict scrutiny would apply. I don't necessarily
think I anticipated necessarily them applying intermediate I was kind
of curious to see if they would, you know, apply
strict scrutiny but poke some holes and how it should
(07:43):
apply to these types of laws. So I guess I
just I don't ever purport to be able to predict
exactly where the justices are going to come down, but
I will say I was pleasantly surprised with the application
of intermediate scrutiny. I didn't want to assume that that's
where they would go. But I'm obviously I'm very glad
that they did.
Speaker 5 (08:04):
Bailey, you kind of jumped in there.
Speaker 4 (08:06):
I'm curious, you know, you were part of our prior conversation.
How did this reflect with what you thought might happen.
Any specifics of the ruling that kind of stood out
to you?
Speaker 7 (08:18):
Yeah, so again, like, I think after listening to oral arguments,
it felt like the court seemed to kind of like,
like does Claire mentioned, like want to figure out a
path for state lawmakers to make this type of regulation work.
I think what surprised me, besides the intermediate scrutiny being applied,
was that, I think just as Thomas seemed to kind
(08:38):
of just like take it as a given that, like
the technology is in place, it works, it's good, there's
no issues. I don't think there was actually really much
discussion of like age verification technology at all. I think,
I mean there was like pieces here and there, but
a lot of the discussion focused on like the specific
facts of this being porn and porn being harmful to kids,
(08:59):
and like the state important interest in like protecting kids
from harmful content or perceived harmful content. But I think
the court kind of like kind of handwaved away any
like concerns raised by advocates about you know, like concerns
with age verification or likelihood of like data breaches or anything.
(09:20):
Just as Thomas kind of reasoned that, you know, like
the porn industry has always been subject to kind of
like social stigma, and to protect the interests of like
the consumers of that that porn companies have like a
really high incentive to make sure that age verification is
safe and secure. But also, you know, you can only
(09:42):
do so much to prevent data breach. Sometimes they just happen.
And I'm not saying that they happen like all the
time in the very commonplace, but I think it surprised
me just how quickly the court kind of like put
aside those arguments on the technology, because I think whether
or not the technology is effective and works and is
(10:03):
minimally invasive for adults is actually really a key question
here and arriving at like whether or not it survives
any type of scrutiny.
Speaker 4 (10:12):
Ash, I'm curious for your thoughts, and maybe you could
also talk a little bit about what we saw in
Justice Kaigan's dissent from the court as well.
Speaker 8 (10:21):
Oh Man, Okay, So I will start by saying that
I was completely surprised by the decision. My prediction was
that the Supreme Court was going to rule for a
spree speech coalition, but narrowly and leave the door open
applies strict scrutiny, and live the door open for there
will be soon enough age verification technology that would meet
the privacy concerns and so leave the door open for that,
(10:43):
but still applies to ex scrutiny. So I was obviously
wrong of how the Court was going to rule. I
know some people who also participate in this policy and
legal debate have called me out on it. I'll say,
I mean, reality is reality. I will never deny it.
Speaker 3 (10:59):
So that's one I.
Speaker 8 (11:01):
Want to quickly say, because we've already kind of started
diving into because you know, we're all very passionate and
experience in the space, we've been diving into this and
one thing I want to say, and for what it's worth,
I think Justice Kagan also addresses it. So Claire mentioned
the Ashgruff and Reno as just as Thomas said, not
(11:22):
applying to the Internet that we know today, because it
was different when those rulings came down. What Justice Kagan
says and her dissent is well, yes the facts are different,
but doesn't mean you get rid of strict scrutiny. You
apply strict scrutiny to a different set of facts, and
then you see where you arrive. And I believe she
also doesn't dismiss the fact that maybe even if you
(11:44):
applied strict scrutiny, this slaw would have survived the constitutional challenge,
but we never got to that. Instead, we kind of
according to her and me, I would say, I mean,
that's kind of an ablusional sentence to put myself with
Jessice Kagan. But I agree with Jessic Kiegan that this
decision pretty much not guts but rearranges for some women
(12:09):
doctrine in ways that we can't even predict. We're going
to have to see play out because we know on
Ashcroft now who knows how much they apply. And I
know you have a question about that too, so I'll
let you lead us there.
Speaker 4 (12:24):
Yeah, So that kind of opens up the kind of
question of you know, we talked a little bit about
what was said in this case, but of course the
next phase of any Supreme Court ruling is kind of
what does this mean? And this case occurs both as
we are seeing various legal challenges work their way through
the courts over perhaps some broader age verification, age appropriate design,
(12:47):
and age assurance laws, things that either focus on aspects
of the Internet, like social media, things that focus on
the way content may be displayed on various websites, as
well as laws that say, look at perhaps doing age
verification or age assurance at an app store or device level.
Speaker 5 (13:09):
You know what.
Speaker 4 (13:10):
It will, of course see what the lower courts interpret
this decision as. But is there anything that stood out
to you guys as how broad or how narrow the
court may intend for this decision to be reached.
Speaker 5 (13:24):
Is this, at the end of the.
Speaker 4 (13:25):
Day, really a decision that is about protecting young people
from pornography? Or did it give any broader indications as
to how the court might think about age verification and
what would be a more general context.
Speaker 3 (13:43):
I'm heavy, Oh so go ahead, Ash, you know you start.
Speaker 5 (13:49):
I'll be short.
Speaker 8 (13:50):
I think on its kind of on the first read,
it reached formally narrow, right it limited to sexual content
and harmful to minors, specifically target websites that have thirty
three percent or one third of its content preserves adults
access in theory. But I think functionally it is broad
(14:10):
because it erodes the boundary between strict and intermediate scrutiny.
As I said, I'm not sure how we know an
ashcroft apply and exist now, and we're going to have
to see how courts play it out. I think it
also invents a new as the first timment lawyer, it's
like slightly exciting, but not really. It invents a new
category of partially protected speech. So we're going to have
(14:32):
to figure out what that means. So that means again
courts are going to run. There are all of these
groups and interests in folks who are going to try
and test this theory.
Speaker 5 (14:40):
And then it.
Speaker 8 (14:41):
Also I think creates a roadmap for broader regulation. Right
every time Supreme Court rules on any issue, it gives
tools and structures to everyone who cares and wants to
participate in this public policy and legal debate on how
to structure ways to reach their goals on its space.
(15:01):
You can save they try to be narrow, and I
think there were still narrow a narrowed a bit even
what the Fifth Circuit was doing, right, they weren't doing
rational basis. But at the same time, I think it's
functionally broad and we're going to see a lot of
litigation trying to figure out what's what's next for free
speech and a lot of different areas.
Speaker 7 (15:21):
Can I jump in before Yeah, I think my conclusion
is pretty similar to Ashes, Like, I think, like the
court spends quite a bit of time talking about, like
you know, like the obscene and harmful nature of like
porn specifically, it seems like Justice Thomas I think is
perhaps a little skeptical that that is like protected speech
(15:44):
at all, even though I think Justice Kegan concludes that
like a lot of the speech at issue here is
like protected speech. But I think to Ash's point, like
what I take away from this case is that, like
you know, if I was like a law professor trying
to explain like what the rule here is or what
the takeaways are and how this would apply to a
different set of facts, I find it like a little
(16:07):
little confusing and a little hard to parse, because, like
you know, the court held that this regulates access to
material deemed harmful the minors, not content. But to me,
this is a law that like very clearly is about
regulating content. So I think when we take away the
porn component to it and try to apply it to
a different set of facts, it's just hard to me
(16:30):
how to decide, you know, what's only about access and
what's about content. I understand. I think the distinctions that
they made with Reno and Ashcroft, that those laws are
about kind of just you know, prohibiting content at all.
But I feel like this is maybe distinction without difference,
and they kind of like functionally arrive at the same conclusion.
(16:50):
So clear, I'd be interested to hear your take and like,
you know, how you think this apply is going forward
given that, like you're a bit more happy about the decisions.
Speaker 3 (17:00):
I'm sorry, I can't hide my happiness. I will.
Speaker 6 (17:03):
I'll just start by saying, I think in terms of
the implications for what this court means for other laws,
I think by applying intermediate scrutiny, you know, the court
says like the First Amendment imposes no free standing under
inclusiveness limitation and that Texas need not address all aspects
of a problem in one fell swoop. So part of
(17:24):
the kind of historic nature of this decision was that
by not applying strict scrutiny, they were kind of setting
the least restricted means tests aside, and that just opens
up a lot more options for state legislatures. And Congress
that they have actually more latitude and flexibility to address
the problem of protecting kids from online obscenity.
Speaker 3 (17:45):
I'd be really cautious.
Speaker 6 (17:47):
To broaden it beyond that type of law, like again,
the compelling state interest to protect kids from online obscenity,
because I think some people seem very eager to try
to say, oh, this will now apply to age verification
for social media or app stores. While I might personally
be in favor of some of those laws, I think
different arguments will have to be made because, like we're
(18:09):
just talking about, this case is really narrow to the
question of is it constitutional to restrict the access to
obscene content online? And the question really an issue was
about age verification and whether or not that it's constitutional.
And again, the Court was really clear that adults have
no First Amendment right to avoid age verification.
Speaker 3 (18:30):
That's what Justice Thomas wrote in the opinion.
Speaker 6 (18:32):
But they met in the context of restricting access to
online obscenity. And so I think some people are taking
that sentence out of context and saying this is great,
this means we have this for social media and app
stores too, And I'm like, it could mean that, but
they're just different arguments will have to be made, because again,
the thrust of the argument in this case was about
protecting children from online obscenity restricting the access to those
(18:56):
kinds of websites.
Speaker 3 (18:57):
So I guess I'm in two parts.
Speaker 6 (19:00):
I'll just wrap it up by saying, I think it's
a yes to giving the states more flexibility and freedom
to legislate in the area of protecting kids from online obscenity,
that they could pass more laws and regulations in this
area to address different aspects of the problem. The Court
was basically saying states could go after this problem from
multiple angles since they no longer have the limitation of
(19:23):
having to prove that a single law is the least
restrictive means. But in terms of applying that to broader
internet regulations, social media app stores, you know, I think
that's still untested because that wasn't at issue in this case,
and some people might want to read into it. I'm
a little bit more cautious to kind of take this
case for the facts of this case instead of being
(19:46):
really quick to take like one sentence from the opinion
that says, you know, adults have no first moment right
to avoid age verification and apply that to other contexts.
You know, Justice Thomas meant that in the context of
restricting access to obscenity online ofsnd ME websites, and so
I think will have to be it just it remains
to be seen what broader ramifications this case will have
(20:06):
or not.
Speaker 7 (20:07):
I feel like part of the reason it's getting taken
out of context, though, is maybe how the Court approached
the decision, because you know, like just As Thomas focused
on things not just obscenity, but obscenity for children, and
I think that was perhaps a different understanding of how
like the Supreme Court has addressed like obscenity jurisprudence. It's
been like some sort of objective reasonable person standard essentially.
(20:30):
I don't remember the exact wording, but I think like
obscenity for children is probably a much lower bar. And
I think when I think about potential implications of this case,
I think about, you know, how in a particular state
define what's obscene for children? You know, does that include
like LGBTQ content, Does that include information on like gender affirming?
(20:54):
Here is that that might be protected speech for adults,
But is that something that like a particular state might
consider seeing for children, And I take your point, and like,
I agree that, Like I think the facts of this
case seem to be very narrow, but just based on
like the court's arguments that they made and how they
really laid out things, I feel like it's just not
a very like clean, easy to apply decision.
Speaker 3 (21:17):
And we might disagree.
Speaker 5 (21:18):
Oh go ahead, Oh go ahead, Claire.
Speaker 3 (21:21):
No, I'm just saying, God.
Speaker 6 (21:23):
Right, Well, I was just gonna say to Bailey, like,
and we might disagree on that. Like, I personally am
in favor of states having more flexibility to define what
is obscene to minors. And again, in a law that's
not saying adults can't post that type of content or
can't access that type of content, it's not a ban
on that type of content. It just puts this hurdle
of age verification in place. And so I'm actually for
(21:45):
states having more flexibility to define that.
Speaker 3 (21:47):
I understand that the terms.
Speaker 6 (21:48):
Again, yes, Justice Thomas uses that term of seeing as
to minors a lot, and so I do think that
they are and other course cases recognize that that states
actually have more latitude and defining obscenist to minors. But
that again like, I really do think this case is
all about access, and that's what the court said that
this is it's what is that issue is this activity
(22:11):
of age verification and that again adults don't have a
first modment right to avoid that activity, and that's why
they apply it in the media. And I realized we
might disagree on the merits of that, but I am
actually for states having a little bit more flexibility of
how to define that and still having adults be able
to access any of that material once they provide age verification.
Speaker 3 (22:31):
But sorry, Ash, I interrupted you. No, no, you're good.
Speaker 8 (22:33):
I just wanted this is perfect because I just wanted
to close the loop on this question by saying, I
think our answers, even if we disagree on a lot
of the things, our answer pros my point that there's
going to be a lot of new interpretation.
Speaker 3 (22:45):
And this decision is functionally.
Speaker 8 (22:47):
Broad because one way or another, there's going to be
a lot of testing of the new waters of First
Amendment doctrine.
Speaker 4 (22:55):
Well, you know, one of the things in terms of
First Amendment doctrine in potential applications this brings up is
the fact that this was a facial challenge to this
law not and as applied challenge. And there's been also
a lot of debate to the conversation that was going
on here about how broadly this law could be interpreted
and what options might be available to websites that are
(23:18):
perhaps more general websites that may have meet the threshold,
but that's not the majority of their content. Is it
possible to age verify only for access to certain portions
of a website or would a website have to age
verify for everything? How broadly as what's kind of alluded to,
is content sexual content that's not deemed harmful to minors
(23:41):
going to be interpreted by states? Is this going to
be something seen in kind of that traditional pornographic content
or does it open the possibility of broader definitions. I'm
curious to kind of our panel of experts here, what
do you think this means with regards to kind of
ongoing discourse we've seen about versus as applied challenges. Do
(24:02):
you think that this conversation will continue or change any
once we start to see a potential enforcement of the law.
Speaker 3 (24:15):
I mean, that's hard to predict.
Speaker 6 (24:16):
I will say, while it was you know, a facial
challenge the Texas law because the Fifth Circuit stayed the
District court a junction. The Texas law was allowed to
go into effect, you know, while this appeal up to
the Supreme Court was ongoing. And so the Texas law
took effect like November fourteenth, I think of twenty twenty three,
and the state attorney general used that to sue a
(24:39):
bunch of the major pornography websites. Pornhub decided rather than
comply to just leave the state others, they reached a
settlement agreement with where they agreed to implement certain age
verification measures.
Speaker 3 (24:51):
And so to me, I'm actually.
Speaker 6 (24:53):
Excited because it proves the point of the necessity these laws,
that the implementation actually means that kids are more effectively
being protected, that the states actually have an ability to
enforce the laws. So I don't know if I can
speak to predicting the facial versus like you know, the
fact of challenge, like how that will play out, but
(25:14):
it is interesting to start seeing some of these laws
actually take effect. So I'm kind of curious to see
what happens.
Speaker 4 (25:23):
Sure, Bailey, Bailey, you look like you're about to say something.
Speaker 5 (25:26):
I thought.
Speaker 7 (25:27):
So that was discussed a little bit in the opinion.
I thought the fact that this was a pre enforcement
facial challenge, or I guess technically it was kind of
enforced a facial challenge would come up more in the
decision than it did. I feel like, ever since the
Moody decision last year, I feel like that has really
been something that I've been paying a close attention to
(25:48):
because you know, this case actually was not brought by
net Choice, but quite a few of these, like online
safety laws, are brought by net Choice. I noticed that
like their Net Choice lawsuit against Maryland's ADC that was
is I think that was a facial challenge in and
as applied challenge because the law went into effect, and
I feel like the court is signaling again that like
(26:09):
they are not going to want to definitively like rule
on things while there's not a very robust record, and
so I think while the Texas law can go into effect,
I'm interested to see how that will work in other states,
because again I think like over a dozen states have
this type of law, but they're not all exactly like
(26:29):
a copy and paste, like there might be some variants
and how the state defines like what is obscene, like
what percentage you need to have of pourn on your
site to be in scope, and so I think that'll
this is definitely something to watch. I don't know if
I have any clear takeaways, but it's an issue that
I think is under discussed but important.
Speaker 8 (26:51):
Great question, Jennifer. I think I'm still also processing. But
I pulled up the decision and I think it does
two things. It narrows facial challenges for kind of two things,
first one being the incidental burden, and then the second
one being I think there's like a footnote that cites
(27:12):
United States Vie Hansen and says a facial firsummon challenge
succeeds only substantial number of laws applications are unconstitutional. So
this means implication for future But facial challenges for online
agorification have gotten much harder. You plaintiffs would have to
show that the majority of applications involve protected speech, and
(27:33):
then that the burden is substantial across those applications, and
then that the statute cannot be narrowly construed or safe
by judicial interpretation. And I think that's a steep climb,
right If I'm right about this, Again, we don't know
what happens, so I think as appliant, litigation will become
(27:54):
the full background.
Speaker 4 (27:56):
You know, as you said, we're still very much in
the kind of immediate after and we don't know what
happens phase. But needless to say, this decision has spurred
a lot of discourse. What do you think is the
biggest misunderstanding about what the court ruled in this particular case.
Speaker 8 (28:24):
That's a great question. I'm just like processing it.
Speaker 6 (28:26):
I know, I'm like thinking about it because I also
feel like I'm kind of on the winning side here.
I'm like, I guess, like you know, obviously you all
may have more concerns about how the rulings misunderstood.
Speaker 3 (28:40):
I would just say I think by.
Speaker 6 (28:42):
People who disagree with me, I think sometimes it's misunderstood
just in general what these age verification laws are doing.
And so I would just point people to the decision
to just say, again, it's not saying that adults can't
post or access to type of content. It's really all
about whether or not the activity of age verification and
(29:02):
requiring that of pornography websites is constitutional or not. And
so I think you have to really be clear in
this decision. It's not banning this speech for adults. It
is just requiring age verification. And that's I think the
point that was most clear from the decision is just
this concept that adults don't have a First Amendment right
to avoid age verification.
Speaker 3 (29:24):
They have a First Amendment right to access this speech.
Speaker 6 (29:26):
But accessing that speech now through this Texas law and
these other laws, entails some type of age verification measure
in order to effectively.
Speaker 3 (29:35):
Keep kids from it.
Speaker 6 (29:36):
So I think sometimes the purpose of the law and
then this decision can be misunderstood in terms of what
it's actually saying is constitutional, and so I would just
say that that's something to pay attention to.
Speaker 8 (29:48):
I think what is misunderstood slash not really discussed that
really was triggering to me was the anonymous speech aspect
of it. I think the anonymous speech comes into and
its existence is now there's a big question er creeping
you know, clouds in the background to it because an
(30:09):
anonymous speech has been protected since you know, the Federalist
papers were written under synonyms.
Speaker 3 (30:13):
There was a reason for that.
Speaker 8 (30:15):
And so my biggest thing that I don't think we're
talking enough about is we're processing and discussing this decision,
is what this means for anonymous speech.
Speaker 7 (30:27):
Ash I just did a control f because that was
a great point. And the word anonymous, unless I'm spelling
it wrong, is not in the decision at all. Like again,
to my point before, there really just was not a
discussion of the age verification technology. I thought that would
really be part of how they distinguished from ashcrofton RENO
(30:48):
is just discussing how much the technology has evolved. It's
much less invasive.
Speaker 3 (30:52):
Blah blah blah.
Speaker 7 (30:53):
I feel like the court just, you know, again just
hand waved and was like, yeah, it's different than it
was before. I think an under discussed point will be that,
like I don't it wasn't clear to me how the
court measured that it was an incidental burden. Again, like
it's hard to get to that, like this is only
incidental when there's not like a very robust discussion of
(31:14):
the technology as it applies to online. I think, like
just as Thomas spent a bunch of time talking about,
you know, showing your ID when you go to buy
alcohol or something like that, but that is just a
different process than online. I think there are definitely like
privacy more privacy friendly ways of doing age verification, and
I thought that would be a really interesting thing that
the court could have talked about, but they did not,
(31:35):
And I think that maybe speaks to the fact that
this was a facial challenge and there just wasn't a
very like robust record. And I think another point that
has been under discussed on that is that Justice Thomas
kind of used like existing industry practices as like evidence
that this is like doable. You know, he mentioned that, like,
(31:55):
you know, for decades peorn companies have been collecting age information,
which I one, I'm not one hundred percent sure how
true that is, because I thought that was like why
these laws were passed in the first place. And two,
I think it is interesting in something to watch that
just industry practices, industry self regulating will be used as
(32:18):
evidence to kind of like retroactively kind of justify legislation. So,
you know, I could see a world where there's some
social media companies that have started to proactively take more
steps in that age verification space, and perhaps like a
court would use that as evidence to say, you know,
like if this, if X company is doing it, why
is why company not doing it? But if there are
(32:41):
porn companies that were doing age verification before they might
have had their own, like you know, just reasons to
do it. Like I think like OnlyFans does pretty robust
like identity verification to make sure that people are above
eighteen when they're posting. That makes a whole lot of sense.
I think porn have does the same for people that post.
I don't think they do it necessarily for the people
that are like viewers, but those are like very like
(33:04):
specific business reasons why they do it not necessarily weighs
thelign with the what the Texas legislature has in mind
for these types of laws.
Speaker 6 (33:14):
Can I just push back really briefly, I think, like
to me with the point that the decision was trying
to make is that like adults may have a right
to access.
Speaker 3 (33:24):
This, but they don't have a right to avoid age verification,
and that accessing this type.
Speaker 6 (33:30):
Of speech in the real world is actually a lot
less anonymous than online, Like I actually wish they had
gone into some more specifics on the technology that's available
online to actually show that it's like more anonymous to
access this on the Internet than it is to go
to a brick and mortar store and purchase a pornographic magazine.
Like it's a lot less anonymous that you actually have
(33:50):
to go in person and someone could identify you at
that store purchasing that thing showing your age. And so
I think again, like we've I thought it was really
critical that the case was trying to explain, like we've
accepted this in the real world.
Speaker 3 (34:06):
It's a common sense solution.
Speaker 6 (34:08):
We need to bring kind of our you know, constitutional
regime and the virtual world into alignment with the real world.
And that was actually one of the big points that
Justice Thomas pushed back against the dissent about was that
if the strict scrutiny applied, it would call into question
all these brick and mortar store age verification laws and
so on the point of anonymous speech, I actually think
(34:31):
that this the way that age verification is conducted online
and how these laws are being how this law is
being applied, and the decision was made it is still
protecting of adults right to anonymous speech.
Speaker 3 (34:44):
I realized they didn't discuss that.
Speaker 6 (34:46):
I wish they had gone into where the specifics of
the age verification technologies available, but I appreciated that Justice
Thomas did note the age verification is even more imperative
in the virtual world than the real world because it's
easier to be in on the miss online. He actually
points that out, it's like easier for a child to
pose as an adults, and so the need for areage
(35:06):
verification the online world is actually even greater than a
brick and mortar store, where a cashier could probably tell
roughly whether or not a person is a minor or not.
So I thought he kind of made that point coming
from the other side, how the and the anonymity online
really necessitates more effective age verification.
Speaker 3 (35:24):
But Bailey, I will agree with you. I wish that
they had.
Speaker 6 (35:26):
Actually gone into more details about the current technologies available
and actually, you know, from my side, showed that they
are more privacy protecting for adults and in ways that
are actually even more anonymous than purchasing obscenity in the
real world would be.
Speaker 3 (35:40):
But that's just my that's my hot take.
Speaker 4 (35:42):
So Bailey and ash, I want to kind of ask
you about this because this does seem to have been
a key portion of the decision of this question of
is the internet different than online I'm sorry, is the
internet different than the offline world? And was this, you know,
more or less than showing your driver's license to a cashier.
(36:03):
You know that certainly came up during oral arguments. I
know we discussed it a bit then, but that seems
to have been a big point of justice. Is Thomas's
opinion is seeing this or or stating that he had
concerns that applying scrutiny could undermine these these other laws
as well. I'm curious to your thoughts of is there
(36:25):
a distinction in the online and offline world here that
you would have liked the court to recognize or is
there or is this something where the the online offline
analogy still works?
Speaker 8 (36:39):
So I think this is a really bad analogy I'm
going to use. But Claire has a very strong Pokemon
of like Justice Thomas right, he's writing for a majority.
I have a weaker lot of Justice KG and writing
for descent. But I'm going to still play my Pokemon
in this. In this case, I'm saying, uh, millennials on
the podcast. But basically what Jessic Kingan says right and
(37:03):
what I agree with, is when you flash your ID
to a store clerk, the store clerk doesn't write down
your name, doesn't write down your information, doesn't store it.
And that's a very big difference from what happens online.
And I believe the way of a law is written,
it basically doesn't say anything. It doesn't require. It says
(37:27):
the website should doesn't have to retain the identifying information,
but transmission of that information is not prohibited. There's no
monitoring or reporting requirement, which means that when you flash
your ID in online world, that the chilling of a
speech and the burden that can happen with well, what
(37:49):
happens with my information? We just had I think, like
within the last month a huge data breach across Microsoft.
Never platforms like this constantly happens, and that doesn't happen
in a brig and mortar situation. And yeah, that's why
I think the facts are very different here. And I
know my Pokemon is weaker because it is the decent,
(38:11):
but I do think there's a very big difference, and
I actually agree, like the technology has also changed. The
Internet is bigger and faster, and our privacy is less
and less protected every day. I recently went through an
airport and I turned around and I saw the screen
of agent and they just scan the face and they
have all of your information. Right fat you don't enough
(38:32):
time enough time to like opt out of it, and
also you don't have a convenience of it. But yeah,
I just I just think we are more and more
going into that utopian black mirror surveillance state. And I'm
going to turn over to Bailey Horse for a Future
of Privacy Form to talk about that aspect of it.
But to me, there there's a big difference. And I think, yeah,
(38:53):
focusing on brig and mortar was a way to reach
the policy goal that the majority had in mind, but
I don't think it's the right application.
Speaker 7 (39:01):
Yeah, I think the online space is very different from
the in person space, and like to Clear's point, though,
I don't I think that you can kind of, you know,
create some like reasonable guardrails with online Like I don't
think it needs to be like a lawless space necessarily,
but I think that, you know, looking at like the
(39:23):
chilling effects, people just don't want to do age verification
for like adult services like under Kappa, which side note
the majority, I think this is just the fault of
Congress passing too many laws with similar names. COPA is
the law that was struck down, but Justice Thomas accidentally
(39:44):
refers to Kappa, the children's online Privacy Protection Act in
one part, I thought that was just like a fun
nod that even the Supreme Court justices can't keep COPA
and Kappa straight. So COPPA has been in effect since
nineteen ninety eight, and undercop OF parents are required to
give like parental consent for companies to collect their children's data.
(40:07):
And it is a huge problem of just like doing
that like verifiable printal consent because parents, you know, if
a company, again a very child friendly company, is like
give me your credit card or give me your ID,
they just often don't want to. There's lots of like
companies and like ad tech services that have like studies
on the drop off rates with doing parntal consent because
(40:30):
it's just like kind of like an inconvenience, and it's
also like a trust factor, like a parent is like,
why is my child on a website where they are
asking for my personal information? So I think even in
that like very like child friendly like safe environment, parents
are very hesitant to do that. So if you think
about you know, like a porn website, like if I
went to Pornhub, there is no way that I would
(40:52):
give porn Hub my ID or you know, a credit
card to verify my information, and again there's that requirement
under the law that's like, you know, don't keep the
information deleted after But I think it's really just like
a trust thing and like a chilling effect, and I
think people are just going to like maybe not bother
and maybe that's actually the intention of the law, but
(41:15):
I think that I think it's fair to say that
like age verification has come a long way in the
last twenty five years, but I think it is a
really tough argument to say that, like doing it in
person is exactly the same as online, because if it
was exactly the same, I think like it would be
a lot more widespread and a lot more websites would
be doing it.
Speaker 6 (41:35):
I would just basically say, like, unlike brick and mortar stores,
because I agree, it's not exactly the same online, but
online there's actually the option to have like third parties
conducting the verification so that the actual pornhub website is
not receiving any private information or personally identifying information about you,
which is more privacy protecting than if you have to
(41:57):
go to a brick and mortar store. And I mean
I can see it cheers do record some of those information.
Speaker 3 (42:02):
I often have them.
Speaker 6 (42:03):
I often see them type my birth date like into
whatever their records are. I'm sure they have to maintain
some type of records to prove that they're verifying that
the person that they're selling the alcohol to is over age,
So there is some record retention. But I understand what
you're saying, the concerns about where is my information.
Speaker 3 (42:19):
Who has access to it?
Speaker 6 (42:21):
So I'll just briefly say, like, more and more states
are adopting digital IDs, this digital type of driver's license,
and I know we've talked about it before, but Louisiana
has actually like implemented a very effective system, so much
so that while porn Hub has dropped out of like
seventeen states, they're still doing business in Louisiana because Louisiana
has made it easy for them to conduct the verification
with their digital IDs. You don't actually no information has
(42:45):
actually transmitted to porn Hub other than like whether or
not this person is over under eighteen because they can't.
There's a software affiliated with the digital ID called verify You,
and porn Hub, like the website itself says, you know,
do you have verify you Louisian And then if you do,
you click a button and it basically then you open
the app on your phone and just say yes or no,
(43:06):
like you know, porn hub whatever wants to know, can
we transmit to this website that you're over eighteen? And
then that's all that the digital ID sends to porn
hub is just this person is an adult. No information
about me, my birthday, my name, anything personal to me
is not actually given to porn hub itself. So I
do think more and more states are adopting these digital IDs,
(43:27):
and that there are ways to do a terification that
are actually more privacy protecting for adults than in the
real world because a third party who's conducting it that
is not actually transmitting any of this information to porn
hub itself, and so if porn hub were to have
a data breach, there would be no information there about
the user other than that they were over eighteen. So anyway,
that's that's my pushback. I realized that's not every state,
(43:50):
but I do think that this technology does exist now
to do this privacy protecting.
Speaker 7 (43:55):
Yeah, I think Louisiana is a really good example. I
think some of my like disappointment in this decision is
maybe just that like the regulation here perhaps jump the technology.
And I think this is very much like an evolving,
emerging space, and it feels like states are going to
retroactively go back and like maybe create some guardrails or
do some like innovation about developing ways to do this
(44:18):
so to.
Speaker 5 (44:19):
The I'll be really fast.
Speaker 8 (44:21):
In the Denver Consortium of Supreme Court was looking at
cable requirements for cable subscribers to a firmly request access
to adult channels and like struck it down because it
basically was talking about like even though that's the chilling speech.
So I think the question here is, yeah, we And
(44:43):
again I thought the Supreme Court was going to say,
sometime down the line, we're going to assess if the
technology is there, but we didn't even get to that
because they didn't apply strict scrutiny.
Speaker 5 (44:53):
Jennifer back to you.
Speaker 4 (44:54):
I was just going to say, I think this is
an emerging and evolving space. Kind of sums up so
where we are in this debate over a verification right now.
So I want to thank you all for being a
part of this conversation. Again, needless to say, this is
likely to be an ongoing conversation, as was mentioned, there
are other cases that are working their way through the
(45:16):
courts around related issues like age appropriate design codes and
age verification more generally, so I'm sure that we will
be having this panel that sports back to discuss similar
issues as relates to the balance between protecting young people online,
free speech and privacy. So I just want to take
(45:37):
this time to thank Ash, Bailey and Claire for joining
us today and to thank all of our listeners to
this Regulatory Transparency Project podcast.
Speaker 3 (45:47):
Awesome.
Speaker 2 (45:48):
Well, I'm going to throw that one back and thank
you so much Jennifer for moderating, and thank you again
to Bailey, Ash and Claire for joining us today and
for sharing your very thoughtful insights. Thank you to our
audience for tuning in today, and if you're interested in
learning more about all of our programming here at the
Federal Society and with RTP discussing the regulatory state in
(46:08):
the American wave of life, please visit the RTP website
at Regproject dot org.
Speaker 3 (46:13):
That is oregproject dot org. Thank you.
Speaker 1 (46:22):
On behalf of the Federal Society's Regulatory Transparency Project. Thanks
for tuning in to the Fourth Branch podcast to catch
every new episode when it's released. You can subscribe on
Apple Podcasts, Google Play, and Speaker for lays from RTP.
Please visit our website at regproject dot org. That's oregproject
dot org.
Speaker 3 (46:50):
This has been a FEDSC audio production
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