The porn industry’s threat to childhood innocence and what the Supreme Court must do

When one of my older brothers was a kid, he and some friends made a shocking discovery in a wooded lot across the street — an old porn magazine hidden away or thrown aside by a previous owner. My brother peering over his shoulder, one of the more foolish of the hooligans, stepped forward and flipped open the magazine. Horrified by what he saw, my brother turned on his heel and high-tailed it for the innocence of home. Sadly, for this generation of kids, that sort of innocence is hard to come by. With ever-present smartphones and computers, an ocean of porn is always just a click away. How did we get here?

Twenty years ago, the porn industry succeeded in getting a more liberal Supreme Court to strike down a federal law requiring porn sites to keep kids out. Since then, kids have become exposed to hardcore porn online at unprecedented levels.

Now, lawmakers across the country are stepping forward to reclaim innocence for our kids. They’ve passed state laws requiring porn websites to verify that users are adults. The porn industry, euphemistically calling themselves the “Free Speech Coalition,” is at it again, and has sued to enjoin Texas’s age verification law. They argue that exposing millions of kids to hardcore porn is just the price we pay for free speech. But their real agenda, which has more to do with conduct than speech, is to create lifetime porn addicts — profit at the expense of childhood innocence.

On January 15, the United States Supreme Court will hear arguments in that case, Free Speech Coalition v. Paxton. Lawmakers from more than 15 states, joined by the American Family Association and AFA Action, submitted an amicus brief urging this Supreme Court to apply a historically sound reading of the First Amendment and uphold these commonsense laws to protect kids.

The Founders would have been shocked by the assertion that adults have a First Amendment right to access porn without verifying age, ensuring that porn is readily available to kids.

As originally understood, the First Amendment of the Federal Constitution and similar state constitutions’ free speech clauses did not protect the publication of sexually graphic material. English common law had punished obscenity since at least 1727. Between 1808 and 1824, the high courts of Connecticut, New York, Pennsylvania, Massachusetts and New York each upheld common law punishments for publication of indecent or obscene material. Legal treatises of the period also considered sexually graphic material outside the protection of freedom of speech or press. Between 1821 and 1835, three states and Congress passed statutes punishing the publication of sexually graphic material. By the Civil War’s end, 20 states had passed such legislation.

The U.S. Supreme Court affirmed this history of consistent constitutional prohibition on sexually graphic publications when it noted in Chaplinsky v. State of New Hampshire (1942) that regulation of “the lewd and obscene” has never raised a constitutional problem. As late as 1968, in the case of Ginsberg v. State of New York, the Supreme Court likewise held that states could criminally punish the dissemination of indecent material to minors.

Prior generations understood that laws keeping kids away from porn do not raise any legitimate free speech concerns. Thus, many of us older adults were blessed to grow up in a country where kids got to be kids. We didn’t have to worry about confronting porn 24/7 on our phones, in the classroom and on every desktop. Don’t the kids of this generation have that same right under the Constitution? Or does the Constitution put porn industry profits first? We should all know the answer to that question. It’s time for the porn industry to leave kids alone. The Supreme Court should uphold Texas’s age verification law.

Trey Dellinger is a senior legal fellow with AFA Action and chief of staff for former Mississippi Speaker Philip A. Gunn. Prior to his state government service, Trey spent a year in the non-profit public policy sector and more than 20 years in the private practice of law. Trey received his law degree cum laude from the University of Mississippi Law School and his baccalaureate degree in physics magna cum laude from the University of Mississippi.