Today's Porn Age Verification Decision Doesn't Consider Minors' First Amendment Rights More Broadly
What are the First Amendment rights of minors? You might imagine two extreme positions:
- Minors have the same rights as adults. Friendly amendment: Restrictions on their rights have to be judged under the same tests (such as “strict scrutiny”) applicable to restrictions on adults’ rights, even if the tests might sometimes practically play out slightly differently for minors and for adults.
- Minors have basically no First Amendment rights, just as they have basically no Second Amendment rights, no constitutional right to marry, and no constitutional right to choose to have sex (even though Lawrence v. Texas has held that adults do have sexual autonomy rights). Friendly amendment: Minors only have a constitutional right to access speech through their parents’ express choices (e.g., when a parent buys the minor a book or a video game).
But it turns out that the Court hasn’t accepted either of those positions (though Justice Thomas in the violent video game case, Brown v. Entertainment Merchants Ass’n (2011), dissented in an opinion that adopted a version of the amended position 2).
Rather, the Court has recognized a historically founded exception for material that’s obscene as to minors, under which minors can be denied access to certain kinds of sexually themed speech. But the Court has declined to extend this exception, even just to violent video games (see the majority opinion in Brown).
Setting aside sexually themed material, minors thus appear to have much the same rights as adults. And nothing in today’s Free Speech Coalition v. Paxton opinion affects that. We have position 1 for most speech, but position 2 for sexually themed speech.
How the First Amendment deals with minors is of course important for deciding whether the various state laws that try to limit minors’ access to social media are constitutional. It’s possible that some such laws might yet be upheld, especially to the extent that they are content-neutral. But Free Speech Coalition v. Paxton doesn’t seem likely to be of help to those who are defending those laws.
The post Today’s Porn Age Verification Decision Doesn’t Consider Minors’ First Amendment Rights More Broadly appeared first on Reason.com.
Source: https://reason.com/volokh/2025/06/27/todays-porn-age-verification-decision-doesnt-consider-minors-first-amendment-rights-more-broadly/
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