Amicus Curiae Brief — Free Speech Coalition, Inc., et al., Petitioners v. Ken Paxton, Attorney General of Texas

Supreme Court briefNov 22, 2024

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No. 23-1122

In the Supreme Court of the United States

FREE SPEECH COALITION, ET. AL.,

Petitioners,

KEN PAXTON, IN HIS OFFICIAL CAPACITY AS ATTORNEY

GENERAL OF THE STATE OF TEXAS, ET AL.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF OF AMICI CURIAE

CLARE MORELL AND BRADFORD LITTLEJOHN

IN SUPPORT OF RESPONDENTS

ERIC N. KNIFFIN

Counsel of Record

RACHEL N. MORRISON

ETHICS AND PUBLIC

POLICY CENTER

1730 M Street N.W.

Suite 910

Washington, DC 20036

(202) 682-1200

ekniffin@eppc.org

Counsel for Amici Curiae

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE ................................ 1

INTRODUCTION AND SUMMARY OF

ARGUMENT .......................................................... 3

ARGUMENT ................................................................ 7

I. Parents are struggling to protect their

children from internet pornography and

its harms. .......................................................... 7

A. Internet pornography is now far

more invasive and ubiquitous. .................. 7

B. Internet pornography is now far

more dangerous and extreme. ................. 11

C. Parents are rightly concerned for

their children’s health and wellbeing. ......................................................... 13

II. Parents have found existing content

filters insufficient............................................ 15

A. Content filters have significant

loopholes. .................................................. 17

B. Content filters are prone to glitches

and bugs. ................................................... 20

C. Content filters often do not work

well together. ............................................ 22

D. Content filters, even if effective in

theory, are too complicated for

parents in practice. ................................... 25

E. Content filters have not, in fact,

protected minors from internet

pornography. ............................................. 30

III.Parents cannot protect their children

from internet pornography without

government help, like H.B. 1181.................... 33

CONCLUSION .......................................................... 37

iii

TABLE OF AUTHORITIES

Cases

Ashcroft v. ACLU,

542 U.S. 656 (2004) .................................. 3, 7, 31, 34

Reno v. ACLU,

521 U.S. 844 (1997) .............................................. 5, 8

Other Authorities

Andrew K. Przybylski & Victoria Nash,

Internet Filtering and Adolescent

Exposure to Online Sexual Material, 21

Cyberpsych. Behav. Soc. Networking 405

(2018) ...................................................................... 36

Anton Barba-Kay, A Web of Our Own

Making: The Nature of Digital Formation

(2023) ........................................................................ 9

Apple Community (NeilKY), iOS Updates

disable Parental Controls/Downtime on

Kids phone (iOS 16+) (Feb. 17, 2024, 6:07

AM) ......................................................................... 20

Apple Community

(parentalcontrolsnotworking), Parental

Controls keep resetting and turning off on

their own (Jan. 5, 2023, 1:41 PM).......................... 21

Apple Community (sarwag13), parental

controls keep resetting after 16 update

(Jan. 16, 2023, 1:55 PM) ........................................ 20

Ashley Carman, OnlyFans stars say TikTok

is making them rich, The Verge, Sept. 17,

2020. ....................................................................... 10

Bark, What Bark Monitors,

https://www.bark.us/what-bark-monitors/

(last visited Nov. 22, 2024) .............................. 19, 22

Beatric Manuel, VPN vs Parental Control:

Does a VPN Bypass Parental Controls?,

PrivacyJournal.net (last updated Nov. 20,

2024) ....................................................................... 24

Cameron Probert, West Richland parents

say school computer porn filter not good

enough, Tri-City Herald, Sept. 25, 2017. .............. 29

Canopy, Internet Safety FAQs (last visited

Nov. 22, 2024) ........................................................ 19

CEASE, Profits Before People: How the

Pornography Industry is Normalizing and

Monetising Sexual Violence (2024) ........................ 12

Center to End All Sexual Exploitation

(CEASE), Expose Big Porn: Uncovering

the online commercial pornography

industry and the urgent need for

regulation (2021) .............................................. 10, 11

Chris McKenna, How to Block Porn on Any

Device. For Free, ProtectYoungEyes, Sept.

19, 2020. ................................................................. 27

Chris McKenna, The Ultimate Guide to

Understanding Routers, Protect Young

Eyes, Sept. 28, 2023. .............................................. 24

Chris McKenna, Warning: Pornhub is on

Snapchat. And Parents Have No Idea,

Protect Young Eyes, June 30, 2019. ...................... 19

CleanBrowsing, How to Block VPN Access at

Home (last visited Nov. 22, 2024).......................... 28

Common Sense Media, The Common Sense

Consensus: Media Use by Tweens and

Teens (2021) ..................................................... 29, 32

Covenant Eyes Service Center (Sydney),

How does filtering work with other filters

or parental controls? (last updated Oct.

2024) ................................................................. 24, 25

Covenant Eyes, Hidden browsers in apps,

Covenant Eyes Service Center (last visited

Nov. 22, 2024) ........................................................ 19

Covenant Eyes, How It Works,

https://www.covenanteyes.com/how-itworks/ (last visited Nov. 22, 2024) ........................ 22

Culture Reframed, OnlyFans is Only Porn:

The Online Ecosystem of OnlyFans and

Webcamming (2023) ............................................... 13

Family Online Safety Inst., Tools for

Today’s Digital Parents (2020) .............................. 26

Fight the New Drug, 100 Consider Before

Consuming, Do Women Struggle with

Porn? (2023),

https://considerbeforeconsumingpodcast.co

m/do-women-struggle-with-porn/. ................... 31, 32

Fight the New Drug, What Devices Do

Consumers Use the Most to Watch Porn?

(2024) ...................................................................... 18

Fiona Vera-Gray, et al., Sexual Violence as a

Sexual Script in Mainstream Online

Pornography, 61 British J. Crim. 1243

(2021) ...................................................................... 12

Isabel Hogben, I Had a Helicopter Mom. I

Found PornHub Anyway, The Free Press,

Aug. 29, 2023.......................................................... 12

Jake Cutler, What are Embedded Web

Browsers? A Guide for Parents, Gabb

Now, Nov. 1, 2023. ................................................. 18

James Everard, How to Unblock Porn

Sites—Watch Safely in 2024, VPN

Mentor, Nov. 8, 2024.............................................. 18

Jennifer Graham, Perspective: OnlyFans’

soft prostitution is ruining lives in real

time, Deseret News, Sept. 11, 2023. ...................... 13

Joanna Stern, How Broken Are Apple’s

Parental Controls? It Took 3 Years to Fix

an X-Rated Loophole, Wall St. J., June 5,

2024. ....................................................................... 21

Judy Silverstein, Q&A: Compulsive sexual

behavior disorder added to ICD-11 as

mental disorder, Healio News, July 17,

2018. ....................................................................... 15

Julie Jargon, Apple Admits to Bug in Screen

Time Parental Controls, Wall St. J., July

29, 2023. ................................................................. 21

vii

Kevin Webb, Twitch, the world’s most

popular streaming service, is dealing with

a porn problem, Business Insider, Aug. 12,

2019. ....................................................................... 10

Kimberly J. Mitchell, et al.. The Exposure of

Youth to Unwanted Sexual Material on

the Internet: A National Survey of Risk,

Impact, and Prevention, 34 Youth & Soc’y,

330 (2003) ............................................................... 11

Leighton Evans, Virtual Reality

Pornography: a Review of Health-Related

Opportunities and Challenges, 15 Current

Sexual Health Reps. 26 (2023) .............................. 13

Michael B. Robb & Supreet Mann, Teens

and Pornography, Common Sense Media

(2022) .............................................................. passim

Microsoft Community (DGriffith_45),

Microsoft Family Safety stopped working

(Sept. 29, 2024) ...................................................... 21

Microsoft Community (Stephen_Elmer),

Microsoft Family Safety not reporting

activity (Aug. 2, 2024) ............................................ 21

Protect Young Eyes, Android Parental

Controls (2020) ....................................................... 26

Protect Young Eyes, Apple (iOS) Parental

Controls (last updated Oct. 3, 2024).......... 20, 22, 26

Qustodio, How to prevent your child from

using guest accounts on Android devices

(last visited Nov. 22, 2024) .................................... 28

viii

Reddit, Can I turn off ALL internal

browsers?,

https://www.reddit.com/r/AndroidQuestio

ns/comments/yrhnxv/can_i_turn_off_all_in

ternal_browsers/ (last visited Nov. 22,

2024). ...................................................................... 19

Roy M. Mersky & Kumar Percy, The

Supreme Court Enters the Internet Age:

The Court and Technology, Law Library

Resource Xchange, June 1, 2000. ............................ 4

Shane W. Kraus, et al., Compulsive sexual

behavior disorder in the ICD-11, 17 World

Psych. 109 (2018) ................................................... 14

Sofia Kaufman, How to Control Internet

Access at Home (and Block Content),

Aura, July 13, 2023. ............................................... 28

Sophie Pezzutto, How the gig economy and

social media created the ‘pornotropreneur’,

Startup Daily, Jan. 23, 2020. ................................ 10

Testimony of Jamie Carruthers on S.B. 417,

Tex. Sen. Comm. State Affs. (Apr. 3, 2023) .......... 32

Testimony of Luke Montgomery on S.B. 417,

Tex. Sen. Comm. State Affs. (Apr. 3, 2023) .......... 35

The Influence of Pornography on Child

Sexual Assault, Culture Reframed, July

27, 2023. ................................................................. 14

Thomas Claburn, In-app browsers are still a

privacy, security, and choice problem, The

Your Brain on Porn, Brain Studies on Porn

Users & Sex Addicts (last visited Nov. 22,

2024) ....................................................................... 14

INTEREST OF AMICI CURIAE1

Amici Clare Morell and Bradford Littlejohn are

fellows at the Ethics and Public Policy Center, a

nonprofit research institution dedicated to applying

the Judeo-Christian moral tradition to critical issues

of public policy, law, culture, and politics.

Ms. Morell directs EPPC’s Technology and Human

Flourishing Project.2 For the past three years she has

helped craft policy solutions to protect kids from the

online harms of pornography and social media. Her

reports and model legislation contributed to 19 states

passing laws requiring age-verification for porn

websites and nine states passing laws requiring

parental consent for social media. In her policy work

at the state and federal level, she has heard firsthand

from legislators and parents struggling to protect kids

from internet pornography. Parents speak to the

shortcomings of parental controls and the technical

complexity they must navigate to set them up and

ensure they are effectively maintained, sharing

countless examples of how their young kids have

accidentally stumbled upon pornography. She is also

the author of the forthcoming book, The Tech Exit: A

Practical Guide to Freeing Kids and Teens from

1 Pursuant to Rule 37.6, no counsel for any party authored this

brief in whole or in part, nor did any such counsel or party make

any monetary contribution intended to fund the preparation or

submission of this brief.

2 https://eppc.org/program/technology-and-human-flourishing/.

Smartphones, to be published by Penguin Random

House in June 2025.

Mr. Littlejohn assists EPPC’s Technology and

Human Flourishing Project. For more than ten years

as a researcher in the fields of social ethics and

political science, he has written and lectured on the

challenges posed by digital technology, including

internet pornography, and the proper role of parents,

churches, schools, and governments in helping

restrain its abuses.

Amici present this brief to summarize the current

landscape of online pornography and content filtering

and show why filters alone are not enough to empower

parents to protect their children from internet

pornography and its harms. Amici submits that this

overview shows why parents need government help,

the sort of help H.B. 1181 would provide.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Petitioners claim the court below erred by applying

rational-basis review and by disregarding what this

Court said about the merits of content-filtering

software in 2004. Petitioners emphasize that in

Ashcroft v. ACLU, this Court found that “the use of

‘blocking and filtering software’ would be an effective

and less restrictive means of restricting minors’ access

to online sexual content inappropriate for them.” Pet.

at 23 (quoting Ashcroft v. ACLU, 542 U.S. 656, 657

(2004)). Petitioners claim Ashcroft “explained” that

“content-filtering software empowers parents to

control the kinds of material their children are able to

view,” “provides better tailoring than a blunt

governmental mandate,” and is “more effective than

age verification, which is ‘subject to evasion and

circumvention.’” Id. at 40 (quoting Ashcroft, 542 U.S.

at 657). Petitioners further claim that the reasons

Ashcroft gave for preferring content-filtering software

over age verification “ring even truer today,” noting

that “filtering software has only improved” since

Ashcroft. Id. at 40–41.

Respectfully, Petitioners’ reliance on Ashcroft

misses the point. The constitutionality of Texas’ ageverification law does not turn on what this Court said

in 2004, based on a factual record that closed in 1999,3

about the relative merits of content-filtering software.

3 The factual record was already five years old when the Court

decided Ashcroft in June 2004. Ashcroft, 542 U.S. at 671.

That world is long gone. Indeed, when the factual

record in that case closed, this Court didn’t even have

its own website.4

What matters here are the facts on the ground

today. How do children access the internet? How do

children access internet pornography, intentionally or

unintentionally? What is the nature of the porn

children see? How does it affect them? And also,

alongside these questions, how effective has contentfiltering been at empowering parents to protect their

children from these harms?

It is only in the light of the answers to these

questions that a court can assess whether Texas was

right to conclude that H.B. 1181’s age-verification

requirement is warranted “to protect kids from some

of the most prurient sexual content imaginable.” Resp.

at 2.

This brief summarizes the key changes in the

landscape of online pornography and content filtering

since Ashcroft. It offers this overview to explain why

parents find that filters alone are not enough to

empower even the most educated and tech-savvy

4 Roy M. Mersky & Kumar Percy, The Supreme Court Enters the

Internet Age: The Court and Technology, Law Library Resource

Xchange, June 1 2000, https://www.llrx.com/2000/06/featuresthe-supreme-court-enters-the-internet-age-the-court-andtechnology/ (“The Supreme Court recently took a major step into

the electronic era by unveiling its first web site on April 17,

2000.”).

among them to protect their children from explicit

material online.

Over the past quarter century, the technological

landscape has changed profoundly. In 1997, this Court

observed in Reno that accessing pornography required

“a series of affirmative steps” that would be difficult

for children to navigate. Reno v. ACLU, 521 U.S. 844,

854 (1997). But that is no longer the case. Pornography

has become far more pervasive, invasive, violent, and

harmful to minors. Moreover, smartphones and social

media platforms and apps—none of which existed at

the time of Ashcroft—have made it much harder for

parents to protect their children through content

filters.

In short, the challenges parents are facing today

are nothing like the challenges their parents were

facing when this issue was last before the Court. The

Ashcroft Court may have had good cause to believe

that content filtering would be enough to protect

children’s access to explicit content at the time. But

that is certainly not the case today.

For too long, parents have been left to fight a onesided war against Big Tech and Big Porn on their own.

Parents need all the help they can get, including from

legislators willing to pursue a multi-layered approach,

including parental education, device filter mandates,

site-based age verification, and device-based age

verification. Texas has done just that while respecting

First Amendment protections for speech.

When a freight train full of dangerous chemicals

derails and catches fire, the government can and

should do more than encourage parents to buy water

filters. When storm waters threaten to overwhelm a

levee, the government can and should do more than

encourage parents to fill sandbags. And given the

“public health crisis,” Resp. at 1, that internet porn

has wrought, it is more than reasonable for

government to conclude that it can and should do more

than just encourage parents to install filters.

H.B. 1181 is an appropriate and constitutional

government response that is by any measure

proportionate to the problem that legislators and

parents are facing today. The status quo has not been

enough to advance the government’s interest in

protecting children from porn. Age-verification laws

add an important layer of protection over and beyond

what content filters can offer. Parents need this help.

Amici trust that understanding the nature of the

challenge parents are up against will help the Court

better evaluate the standard of review for Texas’

efforts to help parents, protect children, and advance

the common good.

ARGUMENT

I. Parents are struggling to protect their

children from internet pornography and its

harms.

At the time of Reno and Ashcroft,5 no one could

have imagined how technology, the internet, and

online pornography would morph over the next

quarter century. Back then, minors accessed the

internet in computer labs or on the family desktop

computer; today, most kids have a high-speed internet

connection in their pocket wherever they go. The

prevailing notion then was that children would need

to actively search out internet pornography to find it.

Today, internet pornography finds them.

These days, online pornography is ubiquitous. It’s

still found on porn sites, but today those sites have

proliferated and extended their reach through social

media feeds, online advertisements, and smartphone

apps. But it’s not just the reach of porn that has

changed—it’s also the pornography itself and its

physical, mental, and social harms, especially on

minors.

A. Internet pornography is now far more

invasive and ubiquitous.

In the last 25 years, internet pornography has

become ubiquitous. This is due in large part to the way

5 Reno v. ACLU, 521 U.S. 844, 854 (1997); Ashcroft v. ACLU, 542

U.S. 656 (2004).

internet access has shifted from a family’s front room

to a teen’s front pocket.

At the end of the twentieth century, if a family had

internet access at all, it was only through a single

portal: a family desktop computer, complete with a

bulky cathode ray monitor and a dial-up modem. Thus,

when this Court was considering the adequacy of

content filters in 1997, it was asking whether filters

could “help parents control the material that may be

available on a home computer with Internet access.”

Reno v. ACLU, 521 U.S. 844, 854-855 (1997); see also

id. at 878 (“a parent allowing her 17-year-old to use

the family computer.”).

The Court also presumed that internet

pornography was something the user had to go looking

for. It claimed the internet was “not as ‘invasive’ as

radio or television” and cited the district court’s

finding that “communications over the Internet do not

invade an individual’s home or appear on one’s

computer screen unbidden. Users seldom encounter

content by accident.” Reno, 521 U.S. at 844, 869

(cleaned up). Indeed, the Court observed that “the

receipt of information on the Internet requires a series

of affirmative steps more deliberate and directed than

merely turning a dial. A child requires some

sophistication and some ability to read to retrieve

material and thereby to use the Internet unattended.”

Id. at 854.

The challenges parents face today are radically

different. First, the internet has become the most

invasive, portable communications technology in

history, placing nearly any information, image, or

video just a few clicks, taps, or swipes away. Children

have access to a wide-range of internet-connected

devices at home or at school, including smart TVs,

computers, laptops, iPads, gaming consoles, a child’s

smartphone, parents’ smartphones, and friends’

smartphones. Each of these “smart” technologies

might have hundreds of apps, many with their own inapp internet browsers.6 That is a lot more for parents

to oversee.

Second, parents can no longer presume that their

children would only encounter pornography if they

went looking for it. In the late 1990s, the user interface

of web browsing was so slow, clunky, and complicated

that few children could navigate it on their own. But

today, it is more often parents who need their

children’s help understanding devices whose user

interfaces have been made intuitive for children. 7

The smartphone in particular has fundamentally

changed our relationship with technology, with handheld devices and apps “pushing” notifications to keep

users, especially teens, engaged.

6 Thomas Claburn, In-app browsers are still a privacy, security,

and choice problem, The Register, Mar. 27, 2024,

https://www.theregister.com/2024/03/27/inapp_browsers/.

7 Anton Barba-Kay, A Web of Our Own Making: The Nature of

Digital Formation 23 (2023).

Moreover, pornography is not cordoned off in

pornography-specific sites or apps. The porn industry

has adopted the influencer model, with performers

using accounts on TikTok, YouTube, X, Facebook,

Instagram, and other platforms to tease explicit

content and lure users (many of them minors) into

following links to their own sites.8 Popular video

gaming community platforms like Twitch and Discord

also serve as gateways to pornographic content. 9

When a child is tempted into clicking a link to a

porn site, the site’s “sophisticated algorithms are

designed to ‘mousetrap’ users, surveying and

manipulating their preferences and presenting them

with ever more extreme content in order to keep them

engaged.”10

8 Sophie Pezzutto, How the gig economy and social media created

the ‘pornotropreneur’, Startup Daily, Jan. 23, 2020,

https://www.startupdaily.net/advice/opinion/how-the-gigeconomy-and-social-media-created-the-porntropreneur; Ashley

Carman, OnlyFans stars say TikTok is making them rich, The

Verge,

Sept.

17,

2020,

https://www.theverge.com/2020/9/17/21439657/onlyfans-tiktoksubscribers-videos-fans.

9 Kevin Webb, Twitch, the world’s most popular streaming service,

is dealing with a porn problem, Business Insider, Aug. 12, 2019,

https://www.businessinsider.com/twitch-porn-streamingmoderation-problem-2019-8.

10 Center to End All Sexual Exploitation (CEASE), Expose Big

Porn: Uncovering the online commercial pornography industry

and the urgent need for regulation (2021) at 5,

https://cease.org.uk/wpcontent/uploads/2021/07/210607_CEASE_Expose_Big_Porn_Rep

ort.pdf.

Porn sites are good at what they do. Even as the

internet has become increasingly pervasive,

pornography has proliferated as the internet’s single

largest product. In 2020, porn sites received more

website traffic than Twitter, Instagram, Netflix, Zoom,

Pinterest, and LinkedIn combined.11

These changes have more than doubled the chance

that children encounter internet pornography. In

2000, 25% of youth that used the internet regularly

were unwillingly exposed to pornography 12; today that

number has risen to 58%.13

B. Internet pornography is now far more

dangerous and extreme.

The content that circulates on most common

pornography sites today is also different in kind than

what parents were concerned with a generation ago.

According to a sixteen-year-old writing in the Free

Press,

11 See id. at n.16.

12 Kimberly J. Mitchell, et al.. The Exposure of Youth to Unwanted

Sexual Material on the Internet: A National Survey of Risk,

Impact, and Prevention, 34 Youth & Soc’y, 330, 340 (2003),

https://www.unh.edu/ccrc/sites/default/files/media/2022-03/theexposure-of-youth-to-unwanted-sexual-material-on-the-interneta-national-survey-of-risk-impact-and-prevention.pdf.

13 Michael

B. Robb & Supreet Mann, Teens and Pornography,

Common

Sense

Media

(2022),

11,

https://www.commonsensemedia.org/sites/default/files/research/

report/2022-teens-and-pornography-final-web.pdf.

When I talk to adults [about porn], I get the

strong sense they picture a hot bombshell in

lingerie or a half-naked model on a beach. This

is not what I stumbled upon back in fourth

grade. I saw simulated incest, bestiality,

extreme bondage, sex with unconscious women,

gangbangs, sadomasochism, and unthinkable

physical violence. The porn children view today

makes Playboy look like an American Girl doll

catalog.14

Mainstream porn sites “position[] material

depicting sexual violence as normative and

legitimate.”15 A survey by Common Sense Media, a

nonprofit organization that makes entertainment and

technology recommendations for concerned parents,

found that most teens who have viewed pornography

“have been exposed to aggressive and/or violent forms

of pornography. This includes 52% who reported

having seen pornography depicting what appears to be

rape, choking, or someone in pain.”16

Isabel Hogben, I Had a Helicopter Mom. I Found PornHub

Anyway,

The

Free

Press,

Aug.

29,

2023,

https://www.thefp.com/p/why-are-our-fourth-graders-onpornhub.

15 Fiona Vera-Gray, et al., Sexual Violence as a Sexual Script in

Mainstream Online Pornography, 61 British J. Crim. 1243 (2021),

https://academic.oup.com/bjc/article/61/5/1243/6208896; see also

CEASE, Profits Before People: How the Pornography Industry Is

Normalizing and Monetising Sexual Violence (2024),

https://cease.org.uk/wp-content/uploads/2024/09/CEASE_

Profits_Before_People_2024.pdf.

16 Robb & Mann, supra note 13, at 7.

Pornography has also become interactive. Porn

today is not just looking at pictures or watching a

movie but taking part in a simulated interactive

sexual experience. So-called POV (point of view) or JOI

(“jerk-off instruction”) videos encourage users to place

themselves directly into the scenario. Many sites are

partnering with virtual reality providers to produce

fully immersive sexual content.17 The rise of the “cam

girl” model has transformed a large swath of online

pornography into something akin to virtual

prostitution.18 Models perform specific sex acts live on

demand in return for elaborately priced “tips.”19 To

allow, much less invite, children into such interactive

videos is a form of child sexual abuse.

C. Parents are rightly concerned for their

children’s health and well-being.

Not surprisingly, with children spending more and

more time online and online pornography becoming

Leighton Evans, Virtual Reality Pornography: a Review of

Health-Related Opportunities and Challenges, 15 Current Sexual

Health

Reps.

(2023),

https://link.springer.com/article/10.1007/s11930-022-00352-9.

Jennifer Graham, Perspective: OnlyFans’ soft prostitution is

ruining lives in real time, Deseret News, Sept. 11, 2023,

https://www.deseret.com/2023/9/11/23859829/onlyfans-porndegradation-culture-reframed/.

Culture Reframed, OnlyFans is Only Porn: The Online

Ecosystem

OnlyFans

and

Webcamming

(2023),

https://culturereframed.org/wp-content/uploads/2023/04/culturereframed_whitepaper_022023_draft2.pdf.

more intense, children’s exposure to pornography has

led to a “public health crisis.” Resp. at 1.

Pornography, especially violent and dehumanizing

sexual interactions, has profound effects on children’s

mental and physical health. As Respondents note,

more than half of boys think that online porn depicts

sexual reality, and girls exposed early to pornography

are more likely to suffer sexual abuse, coercion, and

aggression. Resp. at 7. Indeed, “42% of 15-16-year olds

expressed the desire to mirror pornography.” Id. This

maps with nurses who report a growing trend of

children sexually abusing other children. 20

Recent studies have also found that pornography is

powerfully addictive, analogous to addictive behaviors

(gambling) and substances (tobacco, alcohol), where

age-verification laws already protect children.21 The

World

Health

Organization

now

recognizes

compulsive sexual behavior disorder, which is

commonly induced by pornography, as a real and

widespread mental health disorder.22

20 The Influence of Pornography on Child Sexual Assault, Culture

Reframed, July 27, 2023, https://culturereframed.org/theinfluence-of-pornography-on-child-sexual-assault/.

Your Brain on Porn, Brain Studies on Porn Users & Sex

Addicts,

https://www.yourbrainonporn.com/relevant-researchand-articles-about-the-studies/brain-studies-on-porn-users-sexaddicts/#brain. (collecting findings from more than 35

neurological studies).

22 Shane W. Kraus, et al., Compulsive sexual behavior disorder in

the

ICD-11,

World

Psych.

109

https://pmc.ncbi.nlm.nih.gov/articles/PMC5775124/;

(2018),

Judy

The reality is that most children are encountering

porn, and many are quickly becoming hooked.

Accidental exposure can quickly become intentional,

and that intentional use soon becomes a weekly or

daily habit or addiction.23

These findings make it all the more critical that

parents have the help they need to protect their

children from porn.

II. Parents have found existing content filters

insufficient.

In Ashcroft, the Court determined that content

filters, which “impose selective restrictions on speech

at the receiving end,” were “likely more effective” at

protecting

children

than

age-verification

requirements, which set “universal restrictions at the

source.” 542 U.S. at 667 (emphasis added). While

content filters have improved, they are still imperfect,

stuck playing cat-and-mouse with the multi-billiondollar-a-year online porn industry.

A content filter is a technology that filters out, or

blocks access to, designated material—in this case,

pornographic images and websites. Content filters can

operate at different levels. For example, they can

Silverstein, Q&A: Compulsive sexual behavior disorder added to

ICD-11 as mental disorder, Healio News, July 17, 2018,

https://www.healio.com/news/psychiatry/20180717/qacompulsive-sexual-behavior-disorder-added-to-icd11-as-mentaldisorder.

23 Robb & Mann, supra note 13, at 12.

operate at the internet router level, the Domain Name

System (DNS) server, or device level. Protective

routers block porn websites automatically, while a

clean DNS server can be set up on any router or any

internet device to block access to IP addresses

associated with inappropriate hostnames. Content

filters at the device level, or software that is either

built into the device settings or installed, blocks access

to pornography websites on the device. Built-in

options include Screen Time on Apple devices,

Microsoft Family on Windows, and Google Family

Link on Android devices (which enables “safe search”

(Google) and “block mature sites” (Chrome)). Parents

can also purchase additional third-party contentfiltering software. Common options include Canopy,

Covenant Eyes, Net Nanny, Mobicip, and BlockerX.

Content filters help parents protect their children

by blocking access to pornography. However, as

discussed below, these filters are far from perfect: they

have significant loopholes, are prone to glitches and

bugs, and often don’t work well together. Because of

these shortcomings, many experts advise parents to

layer several different content filters on top of each

other. But it takes a lot of know-how, time, and effort

to get these technologies to work well together, even

under the best of circumstances.

In short, the accessibility of internet pornography

coupled with the technological complexity of creating

an effective filtering regime render parents in practice

unable to proactively protect their children from

pornography’s harms. This is reflected in statistics

that show that children are increasingly exposed to

pornography and suffering as a result, despite the

content filters lauded by Petitioners and by the Court

in Ashcroft.

A. Content filters have significant loopholes.

While content filtering technology has become

more sophisticated since Ashcroft, see Pet. at 40, so

has the porn industry and the digital ecosystem more

broadly. Filtering technology is always playing catchup with the aggressive and deep-pocketed

pornography industry. New porn sites are launched all

the time, large quantities of new explicit and

degrading content are being uploaded and distributed,

and bad actors are developing clever ways to disguise

this content so that it slips by filters, making it easier

for minors to stumble upon or find.

One loophole in most content filters is that they

“underblock” because they filter porn sites by their url,

not by their content. That means that a determined

child can sidestep filters by viewing a porn site

through another root url. For example, one such

workaround is the widely used Archive.org, which

stores “snapshots” of webpages from all around the

internet, including snapshots of porn sites. Yet filters

still categorize Archive.org as a safe website, which

lets minors reach explicit content on an otherwise-

filtered device merely by typing a porn site’s address

into Archive.org’s Wayback Machine.24

Software-based content filters are also less

effective on mobile devices, which is where around

84% of pornography is viewed these days.25 Content

filters operate on internet browsers, which on

desktops and laptop computers serve as the means of

accessing the internet. But for smartphones, the

internet is often accessed via apps that possess their

own in-app browsers, which are generally outside the

purview of content filters. This makes it easy for

minors to access porn on their phones, even if their

parents have protected the phone’s browser, like

Safari or Google Chrome, with a filter.26

Consider Snapchat, a popular social media

platform whose app is rated 12+ on Apple’s App Store.

A minor with the Snapchat app on his phone can get

24 James Everard, How to Unblock Porn Sites—Watch Safely in

2024,

VPN

Mentor,

Nov.

2024,

https://www.vpnmentor.com/blog/how-to-safely-watch-pornsites-online/ (“You can use the Wayback Machine’s archived

snapshots to unblock porn sites * * * . It bypasses network blocks

because your ISP only sees the Wayback Machine’s URL, so it

can’t block your connection.”).

25 Fight the New Drug, What Devices Do Consumers Use the Most

to Watch Porn? (2024), https://fightthenewdrug.org/what-devicesdo-consumers-use-to-watch-porn/.

26 Jake Cutler, What are Embedded Web Browsers? A Guide for

Parents,

Gabb

Now,

Nov.

https://gabb.com/blog/embedded-web-browsers/.

2023,

to PornHub in just five clicks.27 Third-party filters

would be of no help because Snapchat—like TikTok

and Discord—blocks them.28

Apple’s iOS filter in its “Screen Time” settings has

recently been upgraded to filter most content within

in-app browsers, but Android’s equivalent does not yet

do so.29 But even then, the settings that allow these

parental control apps to operate are not hidden behind

the phone’s password-protected menu of device

settings, so a child can disable them without a parent’s

27 Canopy cannot filter content within non-browser apps. Canopy,

Internet Safety FAQs, https://canopy.us/internet-safety-faq/;

Covenant Eyes has said they are not permitted to filter in other

third-party browsers, including hidden in-app browsers, though

some users have had mixed results on this; Covenant Eyes,

Hidden browsers in apps, Covenant Eyes Serv. Ctr.,

https://support.covenanteyes.com/hc/enus/community/posts/1501

9233976987-Hidden-browsers-in-apps;

Chris

McKenna,

Warning: Pornhub is on Snapchat. And Parents Have No Idea,

Protect

Young

Eyes,

June

30,

2019,

https://protectyoungeyes.com/warning-pornhub-is-on-snapchatand-parents-have-no-idea/.

Some companies, like Bark, have found workarounds on

Androids to access app data from the device itself, but this is not

possible on Apple’s closed system, which means since the majority

of teens have iPhones, third party monitoring software has no

access to their social media activity on apps like Snapchat that

block

access.

Bark,

What

Bark

Monitors,

https://www.bark.us/what-bark-monitors/ (comparing iOS and

Android devices).

Reddit, Can I turn off ALL internal browsers?,

https://www.reddit.com/r/AndroidQuestions/comments/yrhnxv/c

an_i_turn_off_all_internal_browsers/ (last visited Nov. 22, 2024).

permission or knowledge.30 This loophole means

parents must constantly police their child’s phone to

ensure that the filters they installed are still working

as intended.

B. Content filters are prone to glitches and

bugs.

Content filters are also susceptible to bugs and

glitches. Filters can even deactivate entirely after a

software update.31 As a Wall Street Journal reporter

who tested Apple’s controls wrote:

My son’s iPad is set to restrict him from visiting

most websites. And yet I was able to use it to

access the most X-rated parts of the internet.

Porn, violent images, illicit drugs. I could see it

all by typing a special string of characters into

the Safari browser’s address bar. The parental

controls I had set via Apple’s Screen Time?

Useless. Security researchers reported this

particular software bug to Apple multiple times

over the past three years with no luck. * * *

Protect Young Eyes, Apple (iOS) Parental Controls (last

updated

Oct.

2024),

https://protectyoungeyes.com/devices/apple-ios-iphone-ipadparental-controls/.

See, e.g., Apple Community (NeilKY), iOS Updates disable

Parental Controls/Downtime on Kids phone (iOS 16+) (Feb. 17,

2024,

6:07

AM),

https://discussions.apple.com/thread/254647836?sortBy=rank;

Apple Community (sarwag13), parental controls keep resetting

after

update

(Jan.

16,

2023,

1:55

PM),

https://discussions.apple.com/thread/254561788?sortBy=rank.

The bug is a bad one, allowing users to easily

circumvent web restrictions.32

Other parents have likewise discovered that the

restrictions they have set on their children’s iPhones

sometimes don’t stick.33 Apple admitted, “We are

aware that some users may be experiencing an issue

where Screen Time settings are unexpectedly reset.”34

Microsoft’s version, Microsoft Family Safety, has also

recently suffered from similar bugs, with filters

completely deactivating without notification.35

Given the addictive pull of pornography and the

profound impact that even one exposure can have on

32 Joanna Stern, How Broken Are Apple’s Parental Controls? It

Took 3 Years to Fix an X-Rated Loophole, Wall St. J., June 5,

2024,

www.wsj.com/tech/personal-tech/a-bug-allowed-kids-tovisit-x-rated-sites-apple-took-three-years-to-fix-it-17e5f65d .

See, e.g., Apple Community (parentalcontrolsnotworking),

Parental Controls keep resetting and turning off on their own

(Jan.

2023,

1:41

PM)

https://discussions.apple.com/thread/254530018?sortBy=rank.

34 Julie Jargon, Apple Admits to Bug in Screen Time Parental

Controls,

Wall

St.

J.,

July

29,

2023,

https://www.wsj.com/articles/apples-parental-controls-arebroken-55a2aa52.

See, e.g., Microsoft Community (Stephen_Elmer), Microsoft

Family Safety not reporting activity (Aug. 2, 2024),

https://answers.microsoft.com/en-us/windows/forum/all/

microsoft-family-safety-not-reporting-activity/561d54fa-009045d8-81e9-3fe5a675f877; Microsoft Community (DGriffith_45),

Microsoft Family Safety stopped working (Sept. 29, 2024),

https://answers.microsoft.com/en-us/windows/forum/all/

microsoft-family-safety-stopped-working/71d3d560-7abb-4900b8c6-d800cdaccbaf.

adolescent brains, these issues are far more serious

than your run-of-the-mill software hiccup. A single

loophole, glitch, or bug can inadvertently leave an

innocent or curious child exposed to pornography for

the first time. Due to porn’s addictive qualities, a

single encounter often is enough to push a child to

undertake significant efforts to find more ways to find

porn, even after the initial software failure is patched.

C. Content filters often do not work well

together.

Because of all the possible portals of entry

introduced by smartphones and apps, and all the

possible loopholes and bugs, experts advise concerned

parents to use multiple layers of protection, and

several different software solutions to effectively cover

all of a family’s devices. One parents’ advocacy group,

Protect Young Eyes, recommends “4 layers of iPhone

protection.”36

No one software provides the complete solution for

everything a parent would like to be able to block or

monitor on a device. For example, Bark is best for

monitoring children’s communications, texts, and

social media,37 while Covenant Eyes excels at filtering

pornography and providing accountability for any

access.38 However, parents have found that these

36 See Protect Young Eyes, supra note 30.

37 Bark, supra note 28.

Covenant

Eyes,

How

https://www.covenanteyes.com/how-it-works/.

Works,

different technologies do not work well with each

other.

These conflicts occur because content filters work

by routing a device’s data through a Virtual Private

Network or VPN. A VPN is an encrypted connection

over the internet that directs data to and from a device

through a safe intermediate stage, known as a VPN

server, before reaching the wider internet. Many

people use a VPN to hide a user’s private information

or pretend a user is logging on from another location.

Parental control software uses a VPN server to either

block certain kinds of websites or to flag concerns for

parents.

But the nature of VPN technology is such that a

device (whether smartphone, tablet, or laptop) can

only connect to one VPN at a time. Parents can choose

to have more than one filtering program on a device,

but so long as the filtering service operates via VPN,

only one can run at a time. To choose, a parent will

have to select which VPN they want to be operating at

a given time through each device’s settings.

Just as VPNs can be used by parents to facilitate

filtering on smart devices, tech-savvy kids can counter

by installing VPN apps that evade filters, evade

parental controls, hide browsing history, and enable

porn access. App Stores often rate VPN apps for

children (4+), undermining parental controls for app

downloads.39

The limits of VPN filters have pushed some parents

to seek out other technologies, such as the Gryphon

home Wi-Fi Router. The Gryphon router has a built-in

pornography filter that works on any device connected

to the Wi-Fi and thus does not depend on any external

VPN filter.40 A protective Wi-Fi router gives parents a

high-level solution to protect many devices at once, but

it only works when those devices are at home and

logged into the Wi-Fi.

But just as a device cannot use two VPNs at the

same time, the Gryphon router can conflict with VPNbased parental control software. Content-filtering

services have acknowledged this issue. For example,

Covenant Eyes warns that “[i]f you use another

filtering service of parental control software, the other

service may ‘fight’ with our filter. This may result in

no internet access or otherwise ‘safe’ sites being

blocked.”41 Covenant Eyes’ only advice is to “remove

39 Beatric Manuel, VPN vs Parental Control: Does a VPN Bypass

Parental Controls?, PrivacyJournal.net (last updated Nov. 20,

2024), https://www.privacyjournal.net/vpn-vs-parental-control/.

Chris McKenna, The Ultimate Guide to Understanding

Routers,

Protect

Young

Eyes,

Sept.

28,

2023,

https://protectyoungeyes.com/the-ultimate-guide-tounderstanding-routers/.

Covenant Eyes Service Center (Sydney), How does filtering

work with other filters or parental controls? (last updated Oct.

2024),

https://support.covenanteyes.com/hc/enus/articles/12691064666523-How-does-filtering-work-withother-filters-or-parental-controls.

the conflicting service from your device, router, or

network” and “[r]estart the device.” 42

If a child’s device only reaches the internet through

home Wi-Fi (for example, an iPad without its own data

plan), the Gryphon router is adequate, and the setup

is straightforward. But for devices with a data plan,

like a mobile phone, things get complicated quickly.

This technical complexity can force parents to choose

whether to use a filter that will protect every device

connected to the home Wi-Fi, or software that will

protect a given device wherever it goes, or a

combination of both, which adds additional options

and potential failures.

These complexities underscore the demands that

even tech-savvy parents must undertake to set up and

maintain a robust content filtering system.

D. Content filters, even if effective in theory,

are too complicated for parents in

practice.

Respondents claim content filters work fine so long

as they are used properly; the problem is just that

Texas has not done enough to encourage their use. Pet.

at 41. But practically, even with education,

establishing and maintaining a filtering regime

(including keeping up with neverending updates) is

complicated. Filtering sounds good in theory, but

parents consistently find it too hard to maintain and

too hard to trust. Unsurprisingly, 71% of parents are

42 Ibid.

dissatisfied with the tools they have used to keep their

kids safe online.43

While device manufacturers like Google44 and

Apple45 offer parental

control

settings on

smartphones, these filters are not enabled by default.

Neither do these devices prompt parents to set them

up, even when the user is a minor. Even if a parent

knows these controls exist, they are hard to find and

use. One guide developed by Protect Young Eyes, a

leading parental advising organization, outlines

seventeen different steps required to set up Screen

Time on an iPhone or iPad.46

Some parents dissatisfied with pre-loaded and offthe-shelf content filters try to create their own “clean”

DNS server. The Domain Name System (DNS) is the

phonebook for the internet. Web browsers interact

through domain names (like supremecourt.gov), but

behind each such web address is a number-based IP

address (like 192.0.2.1). A DNS translates domain

names into IP addresses so browsers can load internet

resources. A DNS server is essentially a database of

public IP addresses and their associated hostnames

use that information to “resolve” or translate internet

43 Family Online Safety Inst., Tools for Today’s Digital Parents

(2020),

https://www.fosi.org/policy-research/tools-for-todaysdigital-parents.

Protect Young Eyes, Android Parental Controls (2020),

https://protectyoungeyes.com/devices/android-parental-controls/.

45 See Protect Young Eyes, supra note 30.

46 Ibid.

searches into something understood by computers. 47 A

DNS server’s information can be leveraged to

categorize and filter certain IP addresses, including

blocking websites known to host pornography.

Setting up a clean DNS server takes considerable

effort and technological savvy. On a home Wi-Fi

router, a parent must figure out how to change its

default DNS settings, update a list of approved or

unapproved urls or IP addresses, and then make sure

all these new settings are properly saved. A parent

must then make sure that all devices on the home

WiFi have been set up with profiles that ensure correct

use of the DNS settings.48

For devices that might connect with Wi-Fi outside

of the home, a parent has to set up a DNS policy on

each device that mirrors the settings on the home WiFi router. To do this, a parent will have to navigate to

the device’s WiFi settings and then “Configure DNS,”

delete all the default DNS servers and domain names,

and manually add only clean DNS servers.49 The

parent must then rinse-and-repeat on each device.

Configuring the device WiFi to route traffic

through only clean DNS servers still doesn’t ensure

browsing is clean when the device is using 4G/5G

47 Chris McKenna, How to Block Porn on Any Device. For Free,

ProtectYoungEyes,

Sept.

19,

2020,

https://protectyoungeyes.com/how-to-block-porn-on-any-devicefor-free/.

48 Ibid.

49 Ibid.

instead of WiFi. To fill this gap, parents would need to

download and install a “clean browsing DNS” app that

operates using a VPN. But as noted above, this form

of parental control often interferes with the operation

of other device-level controls that rely on VPNs.

After all this extremely complex, time-consuming

work to set up a filtering regime, a parent needs to

then put additional time into covering all the possible

bypasses on each separate device, such as changing

the DNS settings (which are generally not passwordprotected) or downloading VPNs and proxy servers.

A parent must also disable the home router’s

wireless remote administrator feature so children

cannot access router settings from outside the home

network, prevent the installation of unapproved

browser plugins, prevent options on computers or web

browsers to switch to guest mode or create a new

account or profile, and manually add sites that filters

don’t catch (like archive.org) to the blocklist. 50

For parents who are acutely aware of the

limitations of content filters and who are highly

motivated to protect their children from pornography,

CleanBrowsing, How to Block VPN Access at Home,

https://cleanbrowsing.org/help/docs/how-to-block-vpn-access-athome/; Qustodio, How to prevent your child from using guest

accounts on Android devices, https://help.qustodio.com/hc/enus/articles/360005217277-How-to-prevent-your-child-fromusing-guest-accounts-on-Android-devices; Sofia Kaufman, How

to Control Internet Access at Home (and Block Content), Aura,

July 13, 2023, https://www.aura.com/learn/how-to-controlinternet-access-at-home.

doing all that is required to oversee their children’s

devices and internet usage is a demanding, if not

impossible, task. The initial set up is just the

beginning. Because of all the layers and possible

loopholes, maintaining an effective filtering and

monitoring regime is simply too time-consuming for

the vast majority of working parents, especially in

single-parent homes.51

The status quo leaves parents overwhelmed and

unequipped and children unprotected. Texas’ expert

Tony Allen noted that while federal buildings rely on

filtering software, that system is maintained by a

professional IT team “checking that that’s working

and working properly, set up properly, operating

properly, got all the correct fills, it’s got all the correct

updates. That’s their job and that’s what they do,

that’s how they keep you protected in this building.”

JA274.

Even then, that’s often not enough. School districts

with well-funded IT departments have confessed

themselves unable to maintain effective contentfiltering regimes on school-issued devices. 52

51 Common Sense Media, The Common Sense Consensus: Media

Use

Tweens

and

Teens

(2021),

https://www.commonsensemedia.org/sites/default/files/research/

report/8-18-census-integrated-report-final-web_0.pdf.

52 Cameron Probert, West Richland parents say school computer

porn filter not good enough, Tri-City Herald, Sept. 25, 2017,

https://www.tricityherald.com/news/local/education/article17537

4506.html.

Allen stresses that parents don’t have the benefits

of professional IT support:

[S]o you do rely to a certain extent on, first of

all, parents knowing they’re available and then

understanding how to implement them and how

to put them into place. And then even

thereafter, how to keep them updated, how to

deal with the fact that children get older and so,

therefore, what they might want to experience

changes over a period of time. So the studies

and research there has been on filtering that

they work, as a tool they work, but they rely on

parental knowledge and information and

education, and they rely on them keeping them

up to date. And it’s those two latter things that

generally are lacking.

JA274.

E. Content filters have not, in fact, protected

minors from internet pornography.

Even if Petitioners might quibble at the edges

about how effective content filters are on an individual

device, the bottom line is beyond dispute: the status

quo—which relies on parents to select, install, update,

and monitor content filters—has not been enough to

protect children in our society from internet porn and

its harms.

As Justice Breyer, joined by Chief Justice

Rehnquist and Justice O’Connor, noted in Ashcroft, if

a law like H.B. 1181 is subject to strict scrutiny, the

least restrictive alternative analysis must note that

filtering software is not “an alternative legislative

approach to the problem of protecting children from

exposure to commercial pornography. Rather, it is part

of the status quo.” 542 U.S. at 684 (Breyer, J.,

dissenting). Justice Breyer judged that a legislature

could reasonably conclude that layering an ageverification requirement on top of the content-filtering

status quo would better advance the public’s interest

in protecting children from internet pornography. Id.

at 686.

Twenty years of data confirms Justice Breyer’s

conclusion. “The last two decades have [] seen a

dramatic increase in the number of children under 13

exposed to pornography—despite content filtering.”

Resp. at 8. Even where parents competently install a

filter and dedicate the time and attention necessary to

monitor it, their children will often still be exposed to

online pornography.

Consider the testimony of one young porn addict,

Madi. Even though Madi’s parents had installed filters

on her devices and made her hand in her phone at

night, she still easily came across pornography on

social media when she was thirteen years old. 53 This

prompted her, out of natural curiosity, to seek out

pornography more actively, which sent her into a

Fight the New Drug, 100 Consider Before Consuming, Do

Women

Struggle

with

Porn?

(2023),

https://considerbeforeconsumingpodcast.com/do-womenstruggle-with-porn/.

downward spiral of addiction for five years.54 Madi

now warns other parents, “Kids are seeing [porn] if

they’re on social media or have any internet access;

there is almost no way that they are not seeing

pornography at least once a week, [even] once a day.” 55

The status quo leaves children of lower-income

families especially vulnerable. First, such children

have, on average, almost twice as much screentime as

their higher-income peers. 56 Second, lower-income

households are less likely to monitor their children’s

devices. A non-profit focused on protecting children

from commercial sexual exploitation testified at

hearings for H.B. 1181 that there is “a strong

correlation between wealth and privilege and using

filtering technologies. That is, well-heeled parents

generally have the time and resources to use filters

while low-income parents do not.”57

As Texas’ expert Tony Allen stated in his

declaration below, “Internet filtering tools are

ineffective and in most cases, were an insignificant

factor in whether young people had seen explicit

sexual content.” JA207. Though experts on either side

54 Ibid.

55 Ibid.

56 See Common Sense Media, supra note 51 (kids in homes with

annual income less than $35,000 spend on average 7:32 hours

each a day on screens; kids in homes with annual income over

$100,000 spend on average 4:21 hours a day on screens).

57 Testimony of Jamie Carruthers on S.B. 417, Tex. Sen. Comm.

State

Affs.,

2:18:20

(Apr.

2023),

https://senate.texas.gov/videoplayer.php?vid=19131&lang=en.

of this litigation might quibble about the reasons why,

the plain fact is that content filters have not done

enough to protect children from internet pornography

and its harms.

III. Parents cannot protect their children from

internet pornography without government

help, like H.B. 1181.

Petitioners’ arguments about the sufficiency of

content filters, whatever their merits, do not account

for the scope of the state interest at issue. Texas’

interest is not simply enabling parents who want to

protect their children from internet pornography.

Rather, Texas passed H.B. 1181 “to protect kids from

some of the most prurient sexual content imaginable.”

Resp. at 2; see also JA250 (“This legislation would ban

minors under 18 years old from viewing explicit

content online.”); Pet. at 3 (“Petitioners agree that

protecting minors is a compelling government

interest.”). Texas has correctly judged that minors are

harmed by internet pornography regardless of

whether their parents are motivated to install,

monitor, and maintain internet filters. And the state

has an interest in protecting all children from

pornography’s harms.

Parents know today more than ever that

monitoring their children’s devices or even any device

that enters their home is not enough to protect their

children from internet pornography. This approach is

dramatically underinclusive. This was true even

twenty years ago, as Justice Breyer noted in his

Ashcroft dissent:

[F]iltering software depends upon parents

willing to decide where their children will surf

the Web and able to enforce that decision. As to

millions of American families, that is not a

reasonable possibility. More than 28 million

school age children have both parents or their

sole parent in the work force, at least 5 million

children are left alone at home without

supervision each week, and many of those

children will spend afternoons and evenings

with friends who may well have access to

computers and more lenient parents.

542 U.S. at 685 (Breyer, J., dissenting). These

numbers have only grown in the decades since.

Justice Breyer flagged this problem though he only

envisioned children viewing the unfiltered internet at

another family’s home. Since the advent of the

smartphone, however, children might spend not only

afternoons and evenings with friends who have

unprotected devices, but the entire school day as well.

Of children accidentally exposed to online

pornography, 29% reported that they were exposed

through a friend or classmate.58 Indeed, schools

themselves have become part of the problem, with

many mandating school-issued iPads, laptops, or

Chromebooks with internet access and inadequate

protective software. Of the 30% of teens who say they

58 Robb & Mann, supra note 13, at 14.

have viewed porn during the school day, 44% viewed

it on a school-issued device.59

Such was the case of Luke Montgomery who shared

his testimony with the Texas Senate:

When I was in third grade, I was exposed to

pornography for the first time. A classmate of

mine who had an iPhone showed me an image

in the bathroom after class. That day opened a

world to harmful online content for me that

would plague me for multiple years to come.

Early on in fourth grade, I remember staying in

from recess and sneaking into empty classrooms

to access images online on the back

computers.60

Even if parents could effectively filter their

children’s devices, they still couldn’t protect their

children from seeing porn on another child’s or school

device. Asking parents or Texas to rely solely on filters

means that the lowest common denominator will

prevail, with the least-regulated households and

inadequatey protected schools setting the tone for the

community as a whole.

Filters are thus insufficient to meet the

government’s interest in protecting minors from

internet pornography. An Oxford Internet Institute

59 Id. at 16.

60 Testimony of Luke Montgomery on S.B. 417, Tex. Sen. Comm.

State

Affs.,

1:57:46

(Apr.

2023),

https://senate.texas.gov/videoplayer.php?vid=19131&lang=en.

study calculated that, depending on the form of

content, “between 17 and 77 households would need to

be filtered to prevent a single young person from

encountering online sexual material” in any given

year.61 Indeed, filters are so inadequate that one study

estimated that caregiver’s use of content filters only

reduced by 0.5%—one in 200—the chance that a child

would encounter online sexual material. 62

Petitioners call H.B. 1181 a “blunt governmental

mandate” and call instead for more “content-filtering

software [that] empowers parents to control the kinds

of material their children are able to view.” Pet. at 40.

But that misstates the record as to the scope of the

government interest at issue. As Petitioners

acknowledge elsewhere, the “compelling government

interest” is “protecting minors,” not just empowering

motivated parents. Id. at 3.

An age-verification law like H.B. 1181 is a proper

response to this public health crisis. Requiring porn

sites to verify a user’s age before granting access to

content that harms minors would undoubtedly

improve the status quo, eliminating many of the

loopholes and limitations described above. Such a

source-based approach gets to the root of the problem:

the point of exposure, the pornography websites

61Andrew K. Przybylski & Victoria Nash, Internet Filtering and

Adolescent Exposure to Online Sexual Material, 21 Cyberpsych.

Behav.

Soc.

Networking

405

(2018),

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6101267/.

62 Ibid.

themselves. In short, age-verification laws better

advance the state’s compelling interest in protecting

children from pornography. And, of course, they would

be a great help to concerned parents.

CONCLUSION

The Court should affirm the judgment of the court

of appeals.

Respectfully submitted.

ERIC N. KNIFFIN

Counsel of Record

RACHEL N. MORRISON

ETHICS AND PUBLIC

POLICY CENTER

1730 M Street, N.W.

Suite 910

Washington, DC 20036

(202) 682-1200

ekniffin@eppc.org

Counsel for Amici Curiae

NOVEMBER 22, 2024

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.