Porn, Guns, Marriage, and Voting

From today’s majority opinion by Justice Thomas in Free Speech Coalition v. Paxton:

Age-verification laws like H. B. 1181 fall within States’ authority to shield children from sexually explicit content. The First Amendment leaves undisturbed States’ traditional power to prevent minors from accessing speech that is obscene from their perspective. Ginsberg v. New York (1968). That power necessarily includes the power to require proof of age before an individual can access such speech. It follows that no person—adult or child—has a First Amendment right to access speech that is obscene to minors without first submitting proof of age.

The power to verify age is a necessary component of the power to prevent children’s access to content that is obscene from their perspective. “No axiom is more clearly established in law, or in reason, than that … wherever a general power to do a thing is given, every particular power necessary for doing it is included.” The Federalist No. 44 (J. Madison). Hence, where the Constitution reserves a power to the States, it also reserves “the ordinary and appropriate means” of exercising that power. J. Story, Commentaries on the Constitution of the United States (1833). For example, in the Eighth Amendment context we have explained that, because “capital punishment is constitutional, … ‘there must be a constitutional means of carrying it out.’” Similarly, because the First Amendment permits States to prohibit minors from accessing speech that is obscene to them, it likewise permits States to employ the ordinary and appropriate means of enforcing such a prohibition. Requiring proof of age to access that speech is one such means.

Requiring age verification is common when a law draws lines based on age…. Fundamental rights that turn on age are no different. Texas, again like many States, requires proof of age to obtain a handgun license; to register to vote; and to marry. In none of these contexts is the constitutionality of a reasonable, bona fide age-verification requirement disputed. See New York State Rifle & Pistol Assn., Inc. v. Bruen n. 9 (2022) [guns]; Crawford v. Marion County Election Bd. (2008) (opinion of Stevens, J.) [voting]; Zablocki v. Redhail (1978) [marriage].

Obscenity is no exception to the widespread practice of requiring proof of age to exercise age-restricted rights. The New York statute upheld in Ginsberg required age verification: It permitted a seller who sold sexual material to a minor to raise “‘honest mistake’” as to age as an affirmative defense, but only if the seller had made “‘a reasonable bona fide attempt to ascertain the true age of [the] minor.’” Most States to this day also require age verification for in-person purchases of sexual material.

There’s naturally much more to the matter, and I plan on blogging further about this  case shortly. (In particular, one can ask to what extent adults’ privacy concerns may play out differently as to different kinds of rights claims.) But I think this is close to the heart of the argument, so I wanted to highlight it separately.

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