During Robert Bork’s bruising nomination process in 1987, a reporter realized that he and Bork frequented the same video store. This reporter hit on the idea of asking to see Bork’s rental history, and, lo and behold, a clerk coughed it right up. The list was not what sank Bork’s nomination—the good judge was fond of Cary Grant and Alfred Hitchcock; there was nothing salacious. But there could have been, and lawmakers on both sides of the aisle were scandalized by the invasion of Bork’s privacy. Congress promptly enacted the Video Privacy Protection Act, which, if you still had a local Blockbuster to visit, would shield your video rental records from prying eyes to this day.

　　Now legislators, both state and federal, are going the other way. They’re introducing, supporting, and (only, so far, at the state level) enacting bills that impose age-verification requirements on social media platforms and adult websites. Current online age-verification techniques erode digital privacy: they create vectors for learning users’ identities and snooping on their browsing habits. Online age-verification laws increase the chances that, one day, we’ll have a Bork tapes-style scandal for real.

　　The point of online age verification is to protect children. But online age verification works only if everyone does it. On the Internet, nobody knows you’re an adult until you prove it (to the extent possible; all online age-verification systems can be gamed). To establish your age, you must tender some kind of personal data, thereby placing it at risk of exposure. Online age-verification laws thus burden the First Amendment rights of adults, by hampering their ability to post and view material on the Internet in anonymity. (They often burden the First Amendment rights of children, too, for example by excluding all minors from online spaces high schoolers are old enough to enter.) The courts have issued a string of preliminary injunctions blocking such laws from taking effect.

　　One of the new online age-verification laws has reached the Supreme Court. A Texas law (H.B. 1181) age-gates commercial websites that are at least one-third “sexual material harmful to minors.” Such websites must deploy an age-verification system based on digital IDs, uploaded government-issued IDs, or “a commercially reasonable method that relies on public or private transactional data.” The law instructs the entity that runs the age-verification system “not [to] retain any identifying information”; but it does not prohibit sharing such information with third parties, and it contains no data-security protocols of any kind. Free Speech Coalition, a trade group for the adult entertainment industry, challenged Texas’s policy in federal court. The case isFree Speech Coalition v. Paxton.

　　We’ve been here before. In 1998, Congress enacted the Child Online Protection Act (COPA), which required commercial websites to age-gate sexual material harmful to minors. Because it singled out, and impeded adults’ access to, such material, COPA was a content-based restriction on speech—and thus subject to strict scrutiny. So the Supreme Court held in Ashcroft v. ACLU. The justices went on to conclude that COPA likely failed strict scrutiny (more on that later). To grant Free Speech Coalition’s motion for a preliminary injunction against enforcement of H.B. 1181, the district court had only to follow Ashcroft. And that is what the district court did.

　　The US Court of Appeals for the Fifth Circuit reversed that decision, though. In Ashcroft, a divided panel found, COPA could have been subject to rational-basis review, but, in a “startling omission,” the government forfeited that argument and accepted strict scrutiny. 

　　What is actually “startling” is the panel majority’s willingness to evade Ashcroft on such a thin premise. As Judge Higginbotham noted in dissent, Ashcroft applied strict scrutiny because several other Supreme Court decisions required as much—the need for strict scrutiny was “self-evident.” And as Free Speech Coalition points out, the panel majority would have us believe that, in failing to push for rational-basis review, Attorney General John Ashcroft (a staunch social conservative), represented by Solicitor General Theodore Olson (an attorney of legendary talent), was blind to what would have been the government’s best argument.

　　Instead of applying Ashcroft, the Fifth Circuit excavated Ginsberg v. New York, which upholds, under rational-basis review, a law banning the sale of indecent material to minors. Ginsberg was about the in-person sale of lewd magazines. In-person age checks do not present the same problems as online age checks (the “data collection” of in-person age verification is often nothing more than a passing glance at a full beard, a wrinkle or two, or some gray hairs). Given the option to make peanut butter and jelly (H.B. 1181, Ashcroft), the Fifth Circuit decided to serve peanut butter and mustard (H.B. 1181, Ginsberg).

　　To survive strict scrutiny, a law must be narrowly tailored to serve a compelling state interest through the least speech-restrictive means available. Texas’s law cannot meet this test. It is loosely tailored and unduly restrictive.

　　Online age-verification laws sacrifice privacy, free speech, and parental authority on the altar of good intentions.

　　On the tailoring front, the law is both over- and underinclusive. It is overinclusive in that it age-gates in full even websites only one-third of whose content is harmful to minors. (Imagine a law that excludes minors from a whole movie theater, even if only a third of the movies are R-rated.) It is underinclusive in that it targets only commercial websites that meet the one-third threshold. Pornography is readily available in search-engine image results and on social media platforms not covered by Texas’s statute.

　　Texas could conceivably fix these tailoring issues, but the larger problem is thatwebsite-side age verification is not the least restrictive means of protecting minors online. COPA had little hope of satisfying strict scrutiny, Ashcroft explained, because it made more sense, on several levels, for parents to protect their children with device-side content-filtering software. Parental controls are less restrictive: they don’t sweep all adults into dragnet age verification, obstructing their access to content they have a right to view. They’re more precise: they enable parents to adjust the settings based on the age and maturity of their individual children. They’re more effective: they can block foreign websites, and they can’t be evaded with virtual private networks.

　　Although the Internet has changed a lot since Ashcroft was handed down, the difficulties with age verification have not shrunk. If anything, they have grown. We live in a time of data breaches. Once collected, the identifying information used for online age verification—government IDs, biometric data (e.g., face scans), credit card information—is asking to be hacked, mishandled, or misused. In the words of the Australian government: “Each type of age verification or age assurance technology comes with its own privacy, security, effectiveness or implementation issues.” (Australia is bulling ahead with age verification anyway. That’s politics for you.) Perhaps more advanced methods, with their device-side age tokens, “zero-knowledge proofs,” and the like, could one day make age verification less of a privacy risk; but such approaches remain little tested and decidedly unproven.

　　At this point, the conservative reader may be thinking that, since it’s pornography we’re talking about, we should just let Texas go for it. Let states age-gate smut, and let viewers of smut bear the cost. But there are several reasons to resist this reaction—even if you take protecting kids from online harm extremely seriously; even if you’re unmoved by the kind of privacy concerns made vivid by the Bork-tapes episode; and yes, even if you refuse to accept that pornography enjoys First Amendment protection.

　　To begin with, age verification for online porn, if allowed, would likely pave the way to age verification for social media. So what, you might say. But let’s pause over this. In many American institutions, conservative views are now denounced, disdained, and dangerous to express. Dissenters must watch what they say and how they say it. Conservatives living under conditions of progressive intolerance should jealously guard their right to anonymous speech, especially on social media. And for the time being, anonymity and age verification do not mix.

　　Even for conservatives, moreover, there is a lot to be said for viewing the dilemma of online pornography through the lens of harm reduction. The truth is, most adults—and many teens—admit to watching pornography. (How many teen boys view porn but won’t admit it? Food for thought.) Internet porn is not going anywhere. The evidence suggests that age-verification laws don’t work—websites ignore them, or people get around them with VPNs. But if they did work, they’d do more harm than good. Following a scandal over its failure to vet content, Pornhub invested in trust and safety, and it is now (as such things go) a relatively clean platform. Users shut out of this popular porn service will find their way to sketchier websites, located abroad, that do little or nothing to block content that’s some combination of extreme, abusive, and illegal. If you’re worried that your son is sneaking onto American porn websites, wait till he is seeking out Russian ones.

　　Many people—a related point—have clearly forgotten why, starting about fifty years ago, most everyone gave up on prosecuting obscenity. What’s the line between material that’s erotic and legal, and material that’s obscene (or obscene as to minors) and thus illegal (or regulable)? Irving Kristol wrote that the difference between erotic art and obscenity is that obscenity “deprive[s] human beings of their specifically human dimension.” Good luck turning that into a legal standard. Justice Potter Stewart was famously reduced to admitting that, while he couldn’t explain what obscenity was, he knew it when he saw it. Funny—but, again, not a legal standard. It’s very hard to police something you can’t define. At least, it’s very hard to do so without indulging in arbitrary or politically motivated uses of state power.

　　Finally, there is nothing conservative about letting the state try to look after your kids. If you’re not overseeing your children’s Internet use (including by discussing it with them, setting limits on screen time, and using parental controls), laws are not going to keep them out of trouble. And in any event, the proper conservative response, to a state intent on meddling in family affairs, is a hand gesture that’s material harmful to minors. Although Texas wants you to believe that it is merely cracking down on hardcore pornography, it is in fact claiming control over all erotic content that could offend even young children—a vast range of cultural material. Art, films, or literature that would shock a seven-year-old, but that could enrich the education of a seventeen-year-old, fall within H.B. 1181’s scope. Texas is seeking nothing less than to co-opt parents’ authority over what their children see and learn. If you invite the state to start trampling on your parental jurisdiction in this fashion, there is no telling where things will stop. Online age-verification laws may break in the right ideological direction, by your lights, but other laws may not. Far better not to let the state wedge itself between you and your children in the first place.

　　Online age-verification laws sacrifice privacy, free speech, and parental authority on the altar of good intentions. That conservatives are leading the charge to enact such laws is a sign that, sadly, the right’s once-celebrated vigilance against unintended consequences is slipping.