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, INC., ET AL.,
Petitioners,
v.
KEN PAXTON, ATTORNEY GENERAL OF TEXAS
On Writ of Certiorari to
the United States Court of Appeals
for the Fifth Circuit
BRIEF OF AMICI CURIAE
MAJOR RELIGIOUS ORGANIZATIONS
SUPPORTING RESPONDENT
AND AFFIRMANCE
THOMAS R. LEE
SCHAERR | JAFFE LLP
299 South Main Street
Suite 1300
Salt Lake City, UT 84111
R. SHAWN GUNNARSON
KIRTON | MCCONKIE
36 S. State Street
Suite 1900
Salt Lake City, UT 84111
GENE C. SCHAERR
Counsel of Record
H. CHRISTOPHER BARTOLOMUCCI
HANNAH C. SMITH
JAMES C. PHILLIPS
JAMES A. HEILPERN
JOSHUA J. PRINCE
SCHAERR | JAFFE LLP
1717 K Street NW, Suite 900
Washington, DC 20006
(202) 787-1060
gschaerr@schaerr-jaffe.com
Counsel for Amici Curiae
NOVEMBER 22, 2024
QUESTION PRESENTED
The question presented by this case would more
appropriately be framed as follows:
Assuming adults have a right under the First
Amendment to access pornography (a proposition with
which Amici disagree), and assuming a state law
imposes some burden on such access, may the State
nevertheless restrict minors’ access to pornographic
materials by requiring a commercial entity to take
commercially reasonable steps to verify the ages of its
customers?
ii
TABLE OF CONTENTS
QUESTION PRESENTED ........................................... i
TABLE OF AUTHORITIES ....................................... iv
INTRODUCTION AND INTEREST OF
AMICI CURIAE ....................................................... 1
STATEMENT .............................................................. 3
SUMMARY OF ARGUMENT ..................................... 4
ARGUMENT ................................................................ 6
I.
Allowing
Children
to
Access
Pornography Severely Harms Them,
Their
Parents,
and
the
Faith
Communities to Which They Belong. ............ 6
A.
Faith communities from diverse
religious backgrounds sincerely
believe that viewing pornography is
immoral. .................................................. 6
B.
Children’s access to pornography
harms religious parents’ ability to
raise their children consistent with
their faith............................................... 12
C.
Children’s exposure to pornography
creates many challenges later in life.
............................................................... 17
D.
Ubiquitous smartphone use makes
pornography more accessible to
children than ever before. ..................... 23
iii
II.
Applying Strict Scrutiny Here Would
Improperly Block States from Exercising
Their Police Powers to Protect Children. .... 27
A.
Under Petitioners’ theory, most laws
seeking to protect children from
pornography would be invalid. ............. 27
B.
Under Ginsberg, laws regulating
distribution of obscene materials to
minors are subject to rational-basis
review. ................................................... 30
C.
This Court can affirm States’
authority to regulate minors’ access
to
pornography
without
undermining First Amendment
protections. ............................................ 32
CONCLUSION .......................................................... 35
iv
TABLE OF AUTHORITIES
Cases
Page(s)
AFPF v. Bonta,
594 U.S. 595 (2021) ................................................ 29
Ashcroft v. ACLU,
542 U.S. 656 (2004) .................................... 26, 29, 30
Barr v. American Ass’n of Pol.
Consultants, Inc., 591 U.S. 610 (2020) .................. 35
Butler v. Michigan,
352 U.S. 380 (1957) .................................................. 1
Chaplinsky v. New Hampshire,
315 U.S. 568 (1942) ................................................ 34
Denver Area Educ. Telecomms. Consortium,
Inc. v. FCC, 518 U.S. 727 (1996) ........................... 29
Ginsberg v. New York,
390 U.S. 629 (1968) .............................. 2, 5, 6, 30, 31
Kennedy v. Bremerton Sch. Dist.,
597 U.S. 507 (2022) ................................................ 34
Marsh v. Chambers,
463 U.S. 783 (1983) ................................................ 34
Miller v. California,
413 U.S. 15 (1973) .................................................. 34
Reed v. Town of Gilbert,
576 U.S. 155 (2015) ................................................ 29
Reno v. ACLU,
521 U.S. 844 (1997) ................................................ 29
v
Roth v. United States,
354 U.S. 476 (1957) ................................................ 33
Sable Commc’ns of Cal., Inc. v. FCC,
492 U.S. 115 (1989) ................................................ 29
Town of Greece v. Galloway,
572 U.S. 565 (2014) ................................................ 34
United States v. Playboy Ent. Grp., Inc.,
529 U.S. 803 (2000) ................................................ 29
United States v. Rahimi,
144 S. Ct. 1889 (2024) ............................................ 32
Utah v. Watts,
2021 UT 60, 498 P.3d 365 ...................................... 34
Vidal v. Elster,
602 U.S. 286 (2024) ................................................ 32
Walz v. Tax Comm’n of City of N.Y.,
397 U.S. 664 (1970) ................................................ 34
West Virginia v. EPA,
597 U.S. 697 (2022) ................................................ 31
Williams-Yulee v. Florida Bar,
575 U.S. 433 (2015) ................................................ 33
Statutes
Tex. Civ. Prac. & Rem. Code §129B.001 ..................... 3
Tex. Civ. Prac. & Rem. Code §129B.002 ..................... 3
Tex. Civ. Prac. & Rem. Code §129B.004 ..................... 3
vi
Other Authorities
Jane Adolphe,
Pope Francis Is Right: Pornography
Consumption Opens a Gate to the
Demonic, Nat’l Cath. Reg. (Dec. 3, 2022) ................ 8
Alma 39:9 (Book of Mormon) .................................... 10
Alejandra Arango et al.,
Social Connectedness and
Adolescent Suicide Risk,
65 J. Child Psych. & Psych. 785 (2023)................. 22
Babylonian Talmud, Shabbat 64b,
(Adin Even-Israel (Steinsaltz) trans.) ................... 11
M. Russell Ballard,
Like a Flame Unquenchable,
Ensign (May 1999) ................................................. 14
Bhagavad-gita, Ch. 2, vv.62-63 ................................. 12
Bhagavad-gita, Ch. 3, v.37 ........................................ 12
Ashutosh Bhagwat,
What if I Want My Kids to
Watch Pornography?: Protecting Children
from “Indecent” Speech,
11 Wm. & Mary Bill of Rts. J. 671 (2003) ............. 28
Natasha Burgert & Valerie Williams,
What Is The Best Age For A Child’s First
Smartphone?, Forbes Health (Oct. 9, 2023) .......... 24
Catechism of the Catholic Church, § 2211
(2d ed. rev’d 2023) .................................................. 13
vii
Catechism of the Catholic Church, § 2222
(2d ed. rev’d 2023) .................................................. 13
Catechism of the Catholic Church, § 2224
(2d ed. rev’d 2023) .................................................. 13
Catechism of the Catholic Church, § 2354
(2d ed. rev’d 2023) .................................................... 8
Catechism of the Catholic Church, § 2396
(2d ed. rev’d 2023) .................................................... 7
Laura Ceci,
Worldwide visits to Pornhub from April 2022
to January 2024, by device, statista
(Apr. 5, 2024).......................................................... 26
The Church of Jesus Christ of Latter-day
Saints, Church Policies and Guidelines:
Pornography, General Handbook § 38.6.13 .......... 10
The Church of Jesus Christ of Latter-day
Saints, How does using pornography affect
me? .......................................................................... 18
The Church of Jesus Christ of Latter-day
Saints, Topics & Questions: Pornography............. 14
Gabriela Coca & Jocelyn Wikle,
What Happens When Children Are Exposed
To Pornography?, Inst. for Fam. Stud.
(Apr. 30, 2024) ........................................................ 25
Commentary on Qur’an 66.6
(Ibn Kathir abridged)............................................. 15
Deuteronomy 4:9 (ASV) ............................................. 15
Exodus 20:14 (KJV) ..................................................... 7
viii
Michael Flood,
The Harms of Pornography Exposure Among
Children and Young People,
18 Child Abuse Rev. 384 (2009) ............................ 21
Focus for Health Found.,
How Pornography Impacts Violence Against
Women and Child Sex Abuse ................................. 20
Genesis 18:19 (CJB) ................................................... 15
How Kids Bypass Parental Controls
in 2024: A Parent’s Guide,
SafeTelecom:KosherOS Blog (Oct. 8, 2024) .......... 16
Job 31:1 (NIV).............................................................. 7
Ronald J. Krotoszynski, Jr.,
Childproofing the Internet,
41 Brandeis L.J. 447 (2003)................................... 16
LDS Fam. Servs.,
Safeguarding Our Homes, Protecting Our
Children, The Church of Jesus Christ of
Latter-day Saints ................................................... 14
Letter from the First Presidency,
The Church of Jesus Christ of Latter-day
Saints, to All Members of the Church
(Jan. 29, 2020) ........................................................ 14
Amanda Lenhart,
Is the Age at Which Kids Get Cell Phones
Getting Younger?, Pew Rsch. Ctr.
(Dec. 1, 2010) .......................................................... 24
Luke 15:11-32............................................................. 12
ix
Magdalena Mattebo et al.,
Pornography Consumption and
Psychosomatic and Depressive
Symptoms Among Swedish Adolescents:
A Longitudinal Study,
123 Upsala J. Med. Scis. 237 (2018) ...................... 21
Ethan A. Marshall & Holly A. Miller,
Age and Type of First Exposure to
Pornography: It Matters for Girls and Boys,
45 Deviant Behav. 377 (2023) ............................... 20
Elena Martellozzo et al., Middlesex Univ.,
for Nat’l Soc’y for Prevention of Cruelty
to Children and Children’s Comm’r for Eng.,
“I Wasn’t Sure It Was Normal to Watch It…”:
A quantitative and qualitative examination
of the impact of online pornography on the
values, attitudes, beliefs, and behaviours of
children and young people,
Forensic Psych. Servs. (2016) .......................... 21, 25
Matthew 5:28 (KJV) ..................................................... 7
Gustavo S. Mesch,
Social bonds and Internet pornographic
exposure among adolescents,
32 J. Adolescents 601 (2009) ................................. 22
Midrash Tanchuma, Tzav 13:13 ............................... 10
Mishneh Torah, Hilchot Teshuvah 4:1 ..................... 15
Mobile Fact Sheet: Mobile Phone Ownership
Over Time, Pew Rsch. Ctr. (Nov. 13, 2024)........... 23
x
Clare Morell,
Opinion, Parents need help to protect their
kids from online pornography,
The Hill (July 6, 2024) ........................................... 16
Nat’l Ass’n of Evangelicals,
Resolution: Pornography and Obscenity
(Jan. 1, 1998) ............................................................ 9
Larry J. Nelson et al.,
“I Believe It Is Wrong But I Still Do It”:
A Comparison of Religious Young Men Who
Do Versus Do Not Use Pornography,
2 Psych. Religion & Spirituality 136 (2010).......... 22
Numbers 15:39 (The Contemporary Torah) ............. 10
Tony Perez,
How Kids are Bypassing Porn Content
Filters, CleanBrowsing (Mar. 6, 2020) .................. 16
L. David Perry, Am. Coll. of Pediatricians,
The Impact of Pornography (Aug. 2024) ............... 16
Samuel L. Perry & George M. Hayward,
Seeing is (Not) Believing: How Viewing
Pornography Shapes the Religious Lives of
Young Americans, 95 Soc. Forces 1757 (2017)...... 17
1 Peter 2:11 (KJV) ...................................................... 17
Philippians 4:8-9 (Phillips) ......................................... 9
Proverbs 6:25 (NIV) ..................................................... 7
Qur’an 17:32 .............................................................. 11
Qur’an 24:30-31 ......................................................... 11
xi
Qur’an 66:6 (Mustafa Khattab trans.) ...................... 15
Remojo,
Is Porn Haram? And Other Questions
Related to the Islamic View of Pornography ......... 11
Aliah Richter et al.,
Youth Perspectives on the Recommended
Age of Mobile Phone Adoption: Survey Study,
5 JMIR Pediatrics & Parenting e40704
(2022) ...................................................................... 23
Victoria Rideout et al.,
The Common Sense Census: Media
Use by Tweens and Teens, 2021,
Common Sense (2022)............................................ 24
Michael B. Robb & Supreet Mann,
Teens and Pornography, 2022,
Common Sense (2023)............................................ 24
S. Baptist Convention,
Resolutions: On Pornography and
Sexual Purity (June 1, 2015) ............................. 9, 13
S. Baptist Convention,
Resolutions: On the God-Given Rights
and Responsibilities of Parents
(June 12, 2024) ................................................. 13, 14
S. Baptist Convention,
Resolutions: On the Plague of Internet
Pornography (June 1, 2001) .............................. 8, 14
Seventh-day Adventist Church Gen. Conf.,
Official Statements: Pornography
(July 5, 1990)...................................................... 9, 10
xii
Daniel J. Solove,
The Virtues of Knowing Less: Justifying
Privacy Protections Against Disclosure,
53 Duke L.J. 967 (2003) ......................................... 28
Geoffrey R. Stone,
Sex and the First Amendment: The Long
and Winding History of Obscenity Law,
17 First Amend. L. Rev. 134 (2018) ...................... 33
Fiona Vera-Gray et al.,
Sexual violence as a sexual script in
mainstream online pornography,
61 British J. Criminology 1243 (2021) .................. 19
Emily A. Vogels et al.,
Teens, Social Media and Technology 2022,
Pew Rsch. Ctr. (Aug. 10, 2022) .............................. 23
What Devices Do Consumers Use the Most to
Watch Porn?, Fight the New Drug ........................ 25
Wenqi Zheng et al.,
Pornography Exposure Profiles Differentiate
Sexual Aggression and Its Risk Factors:
A Person-Centered Approach,
14 Psych. Violence 280 (2024) ............................... 19
INTRODUCTION AND
INTEREST OF AMICI CURIAE 1
In a more innocent age, this Court rejected laws
that would “reduce the adult population *** to reading
only what is fit for children.” Butler v. Michigan, 352
U.S. 380, 383 (1957) (emphasis added). But today,
because of smartphones and other streaming devices,
States face the opposite problem: Absent meaningful
legal guardrails, virtually all children are condemned
to regularly seeing sexual materials unfit even for
adults. And many children so exposed experience a
cascade of negative outcomes, including increased risk
of poor mental health, sexism, objectification, sexual
violence, and a reduced ability to form durable marital
relationships. That is why Texas acted reasonably—
and laudably—in requiring pornographic websites to
verify their visitors’ ages.
The validity of such laws is of great concern to
Amici—major religious organizations and faith
communities including the National Association of
Evangelicals, 2 the American Islamic Congress, the
Anglican Church in North America, the United States
Conference of Catholic Bishops, the Union of Orthodox
Jewish Congregations of America, The Church of
Jesus Christ of Latter-day Saints, the African
Methodist Episcopal Church, the Salvation Army
USA,
BAPS
Swaminarayan
Sanstha,
the
1 This brief was not authored in whole or in part by counsel for
any party, and no person or entity other than Amici Curiae or
their counsel has made a monetary contribution toward the
brief’s preparation or submission.
2 The
name of each Amicus is hyperlinked to its mission
statement.
2
International Society for Krishna Consciousness, the
Queens Federation of Churches, the Religious
Freedom Institute’s Islam and Religious Freedom
Action Team, and HinduACTion.
Amici are concerned, not only about the
psychological and social harms arising from children’s
exposure to pornography, but also about the spiritual
harm that pornography exposure inflicts on them and
their parents. Amici consider pornography an evil
influence that impedes people’s relationships with the
divine. And, while Amici believe such spiritual and
other injuries accompany pornography use regardless
of the viewer’s age, those harms are compounded in
children. Children are unprepared to understand both
the content of pornographic media and why viewing
such materials is harmful not only emotionally and
psychologically, but also spiritually.
Consistent with their beliefs about the harms of
pornography, Amici are diligently arming parents
with tools to protect children from it. And in this effort,
Amici and the parents who form their religious
communities need all the help they can get—including
from the State: Given today’s technology, and the
spiritual harms pornography inflicts, laws like H.B.
1181 are essential to religious parents’ ability to raise
their children in their chosen faith.
This Court can and should allow Texas to provide
that help: In decisions such as Ginsberg v. New York,
390 U.S. 629, 639 (1968), the Court has already held
that parents are “entitled to the support of laws
designed to aid” them in “discharg[ing]” their primary
responsibility to protect children from pornography,
3
and the Court has applied rational-basis review to
laws so designed. And here, the Fifth Circuit correctly
applied Ginsberg to hold that Texas retains the right
to enact legislation which, by requiring proof of a
user’s age, assists parents in that critical work. As a
matter of law—and sound policy—that is the right
conclusion. The Court should affirm.
STATEMENT
The Texas Legislature enacted H.B. 1181 as part
of its ongoing effort to “combat the spread of hardcore
pornography to minors.” Br. in Opp’n 8. H.B. 1181
applies whenever “more than one-third” of a website’s
“material” that is “knowingly and intentionally”
published “is sexual” and “harmful to minors.” Tex.
Civ. Prac. & Rem. Code §129B.002(a).
The law defines “[s]exual material harmful to
minors” consistent with this Court’s First Amendment
precedents. It includes any material (1) that an
“average person applying contemporary community
standards would find, taking the material as a whole
and with respect to minors, is designed to appeal to or
pander to the prurient interest”; (2) that, “in a manner
patently offensive with respect to minors, exploits, is
devoted to, or principally consists of descriptions of
actual, simulated, or animated displays or depictions”
of sexual activity or nudity; and (3) that “taken as a
whole, lacks serious literary, artistic, political, or
scientific value for minors.” Id. §129B.001(6). Where
the law applies, a website must verify its users are at
least 18 years old. Id. §129B.002(a), §129B.004(1).
Petitioners are a group of online pornographers
that challenged H.B. 1181 before it became effective,
4
securing a preliminary injunction against the law’s
age-verification requirement. The Fifth Circuit
reversed the district court’s injunction against that
requirement after finding that H.B. 1181 survived the
rational-basis review this Court applied in Ginsberg.
Pet.App. 1a-27a.
SUMMARY OF ARGUMENT
Amici are convinced the Fifth Circuit reached the
correct result and should be affirmed. They write
separately to highlight two points.
First, in deciding this important case, the Court
should bear in mind that many religious groups hold
strong beliefs about the unique evils presented by
pornography and therefore seek to support the efforts
of parents—the backbone of religious communities—
in fulfilling their sacred duty to protect their children
from those evils. In an era when technological
advancements make pornography available anytime
and anywhere, religious parents need all the help they
can get to protect their children. Parents’ attempts
both to instill religious beliefs in their children and to
protect their children from the evils of pornography
are furthered by H.B. 1181 and similar laws.
Second, both this Court’s decisions and a sound
history-and-tradition approach to interpreting the
First Amendment caution against unduly cabining
States’ ability to limit children’s exposure to
pornography. For example, if Petitioners were correct
that strict scrutiny applies to laws that (unlike
H.B. 1181) genuinely burden adults’ ability to
consume pornography, States could not readily give to
“parents *** who have *** primary responsibility for
5
children’s well-being *** the support of laws designed
to aid discharge of that responsibility.” Ginsberg v.
New York, 390 U.S. 629, 639 (1968). Such a result
would flout Ginsberg’s express holdings that
(1) legislatures can “properly conclude” that parents
are “entitled to the support” of laws that limit the
exposure of pornography to children and (2) the
resulting laws are subject only to rational-basis
review. Ibid.
And here, Texas’ law easily passes such review—
as well as any other standard—because it is narrowly
tailored to help protect children from all the harms
identified above. That it also protects children from
enormous spiritual harm and facilitates religious
parents’ ability to raise their children in their chosen
faith is an important bonus.
Nor will reaffirming Ginsberg’s vitality weaken
protection for First Amendment rights such as the
freedom of speech and the free exercise of religion.
Petitioners concede (at 3, 41-42) that the materials
affected by Texas’ law are obscene, at least for
children. And this Court has long held that the
creation and viewing of obscenity falls outside the
First Amendment’s ambit. So there is no genuine risk
that affirming the Fifth Circuit’s decision will put this
Court on a slippery slope that threatens genuine First
Amendment rights.
Accordingly, the Court should affirm the decision
below and, in so doing, reaffirm that—whatever flaws
Ginsberg may have—it provides the legal standard by
which laws like H.B. 1181 should be assessed.
6
ARGUMENT
I.
Allowing Children to Access Pornography
Severely Harms Them, Their Parents, and
the Faith Communities to Which They
Belong.
Texas, in common with all other States, has a
compelling interest in shielding minors within its
boundaries from exposure to pornography. That
interest, as Respondent explains (at 35-42) provides
ample reason to affirm. But another reason is that,
when minors have unlimited access to pornography
despite their parents’ best attempts to shield them
from it, such access harms people and communities of
faith. As this Court recognized in Ginsberg, States
have a legitimate interest in ensuring that those “who
have *** primary responsibility for children’s wellbeing” have “the support of laws designed to aid
discharge of that responsibility.” Ginsberg, 390 U.S. at
639. That interest, properly understood, extends to
religious and non-religious parents alike.
A.
Faith
communities
from
diverse
religious backgrounds sincerely believe
that viewing pornography is immoral.
Many religious groups share the belief that
viewing pornography is immoral. While most ancient
scriptural texts do not explicitly reference
pornography, they outline clear principles of sexual
morality. And many modern faith communities
understand these ancient doctrinal principles and
values to prohibit the creation and viewing of
pornography—in large part because of the spiritual
7
threat pornography poses to individuals, families, and
society.
1. Christian Teachings. For example, many
Christian groups (including Roman Catholics,
Southern Baptists, Evangelicals, and The Church of
Jesus Christ of Latter-day Saints) consider the
viewing of pornography to be sinful. The Bible
specifically commands its readers “not to look
lustfully” 3 at others, “not [to] lust in [their] heart after
[a person’s] beauty or let [a person] captivate [them]
with her eyes.” 4 And, grounded in the Old Testament
commandment not to “commit adultery,” 5 Jesus’ New
Testament teachings also require purity of thought—
emphasizing, for example, that “whosoever looketh on
a woman to lust after her hath committed adultery
with her already in his heart.” 6 Entwined with these
biblical commandments is the belief that pornography
offends God by trivializing the sacredness of sexual
acts. And that is why many Christian groups consider
viewing pornography to violate God’s commands.
The Roman Catholic Church, for example, warns
that pornography is one of the sins “gravely contrary
to chastity.” 7 The Church’s Catechism teaches that
pornography perverts sexual acts by removing them
“from the intimacy of the partners,” objectifying
3 Job 31:1 (NIV).
4 Proverbs 6:25 (NIV).
5 Exodus 20:14 (KJV).
6 Matthew 5:28 (KJV).
7 Catechism of the Catholic Church, § 2396 (2d ed. rev’d 2023)
(“CCC”), https://tinyurl.com/5fkvwb97.
8
participants, and “immers[ing] all who are involved in
the illusion of a fantasy world.” 8 Given these beliefs,
the Roman Catholic Church considers pornography to
do “grave injury to the dignity of its participants
(actors, vendors, the public), since each one becomes
an object of base pleasure and illicit profit for others.” 9
The Church thus urges civil authorities to “prevent the
production and distribution of pornographic
materials.” 10 And the Church admonishes its
membership to repent for viewing pornography. 11
Similarly,
Southern
Baptists
consider
pornography to be “a major contributor to deviant
sexual behavior,” a precursor to “sexual addiction,”
and devastating not only to “relationship[s] between
husbands and wives,” but also “between adults and
children.” 12 For these reasons, Southern Baptists
believe pornography use is contrary to properly
ordered sexuality 13 and urge “those who have fallen in
sexual sin” to “look to [Jesus Christ] in faith and
repentance.” 14
8 Id. § 2354.
9 Ibid.
10 Ibid.
11 Jane
Adolphe, Pope Francis Is Right: Pornography
Consumption Opens a Gate to the Demonic, Nat’l Cath. Reg. (Dec.
3, 2022), https://tinyurl.com/dh9db7yk (collecting sources
confirming that pornography use is a grave matter).
12 S. Baptist Convention, Resolutions: On the Plague of Internet
Pornography (June 1, 2001), https://tinyurl.com/26sf8zw2
(hereinafter “SBC, Internet Pornography”).
13 Ibid.
14 S. Baptist
Convention, Resolutions: On Pornography and
9
Evangelical
Christians
likewise
condemn
pornography as “powerfully corrosive” not only to
society at large, but also to those involved “in the
production of it as well as *** those who use it.” 15 That
belief is grounded in the view that such “materials
exploit persons made in God’s image, destroy healthy
relationships and distort God’s gift of loving, mutual
sexuality between husband and wife.” 16 For these
reasons, they consider pornography use to be “sinful”
and encourage their members to help “those who have
been harmed” by it. 17
Seventh-day Adventists, for their part, “deem
pornography
to
be
destructive,
demeaning,
desensitizing, and exploitative.” 18 In their Official
Statement on Pornography, the Church expresses
particular concern with pornography’s tendency to
ruin
relationships,
including
the
marital
relationship. 19 Adventists are thus counseled to “fix
[their] minds on the things which are holy and right
and pure and beautiful and good” 20 and to support
Sexual Purity (June 1, 2015), https://tinyurl.com/mrr3keww
(hereinafter, “SBC, Pornography”).
15 Nat’l
Ass’n of Evangelicals, Resolution: Pornography and
Obscenity (Jan. 1, 1998), https://tinyurl.com/37pvxvyf.
16 Ibid.
17 Ibid.
18 Seventh-day
Adventist Church Gen. Conf., Official
Statements: Pornography (July 5, 1990), https://tinyurl.com/
4xsa66wr (hereinafter Seventh-day Adventist, Pornography”).
19 Ibid.
20 Id. (quoting Philippians 4:8-9 (Phillips)).
10
those “seeking
pornography.” 21
freedom
from
an
addiction
to
And finally, The Church of Jesus Christ of Latterday Saints “condemns pornography in any form”
because, among other reasons, consuming it “drives
away the Spirit of the Lord.” 22 The Church, like other
Christian faiths, also highlights the damage caused by
pornography to “individual lives, families, and
society.” 23 And, reiterating counsel from the Book of
Mormon, the Church requires those who have gone
“after the lusts of [their] eyes” to “repent and forsake
[their] sins.” 24
2. Jewish Teachings. Many adherents to
Jewish tradition likewise affirm that viewing
pornography is morally wrong. The Torah emphasizes
responsibility for thoughts of the heart. 25 It teaches
that Jews should remember the commandments of
God and must not “follow [their] heart[s] and eyes in
[their] lustful urge.” 26 Jewish tradition even speaks of
an entire generation of Jews who required atonement
because “they nourished their eyes from nakedness,”
21 Id.
22 Church of Jesus Christ of Latter-day Saints, Church Policies
and Guidelines: Pornography, General Handbook § 38.6.13,
https://tinyurl.com/bdh3cpmn.
23 Ibid.
24 Alma 39:9 (Book of Mormon).
25 Midrash Tanchuma, Tzav 13:13.
26 Numbers 15:39 (The Contemporary Torah), https://tinyurl.com/
ywj3ya5j.
11
hence there was needed an “atonement *** for the sin
of looking.” 27
3. Islamic Teachings. Like other Abrahamic
faiths, Islam likewise prohibits the viewing of
pornography. Islamic teachings emphasize sexual
purity and the avoidance of indecency. The Qur’an
commands Muslims to “lower their gaze and guard
their chastity.” 28 It further warns to “not go near to
fornication” because “[i]t is an indecent act, an evil
way.” 29 And Islamic scholars generally interpret these
verses “as having relevance and applications to
viewing modern-day pornography,” which they view as
“a form of sexual immorality that can lead to sinful
thoughts and actions that contradict the teachings of
Islam.” 30 Thus “the Islamic perspective on
pornography *** is one of strong disapproval and
condemnation,” viewing it is a “sin[] detrimental to
one’s soul and conduct.” 31
4. Non-Abrahamic Religious Groups. Nor is
the belief that pornography is harmful unique to
Abrahamic traditions.
For example, the ancient Sanskrit text
Bhagavad-gita, or the Song of God, which is sacred to
all Hindus (including members of the International
27 Babylonian
Talmud, Shabbat 64b, (Adin
(Steinsaltz) trans.), https://tinyurl.com/rsdpvk5c.
Even-Israel
28 Qur’an 24:30-31, https://tinyurl.com/y7d9b96b.
29 Qur’an 17:32, https://tinyurl.com/25k9cjkc.
30 Remojo, Is Porn Haram? And Other Questions Related to the
Islamic View of Pornography, https://tinyurl.com/nhcp9knu (last
visited Nov. 20, 2024).
31 Ibid.
12
Society for Krishna Consciousness), warns of the
danger of lust and uncontrolled desires, especially
sexual desire. Lust is described as “the sinful, alldevouring enemy in the world.” 32 Pornography, while
not mentioned by name, exemplifies the danger posed
by “contemplating the objects of the senses,” which
causes a person to fall into ignorance and the
trappings of material illusion and to forget one’s
relationship with the divine. 33
In short, many faith communities consider the
viewing of pornography a sinful act. For that reason
alone, legislation on that subject is a matter of keen
interest to those communities.
B.
Children’s access to pornography harms
religious parents’ ability to raise their
children consistent with their faith.
Members of these religious groups also believe
they have a duty to teach their children how to live in
harmony with religious doctrines of sexual purity.
That responsibility has, of course, always been
difficult to fulfill, with many religious texts offering
examples of children leaving their families to live
contrary to their religious upbringing. E.g., Luke
15:11-32 (Jesus’ parable of the prodigal son). But that
only heightens the obligation felt by believers to raise
their children in the faith, regardless of whether they
later exercise their moral agency to live differently.
Religious parents are thus harmed when pornography
is readily available to children—because parents are
32 Bhagavad-gita, Ch. 3, v.37, https://tinyurl.com/2rwashez.
33 Bhagavad-gita, Ch. 2, vv.62-63.
13
then less able to protect their children from its
spiritually and psychologically destructive influence.
And this is true for all the faith groups described
above.
1. Among Christian groups, for example, the
Roman Catholic Church teaches that parents must
“educate their children to fulfill God’s law” and “avoid
the compromising and degrading influences which
threaten human societies,” such as pornography. 34
Church teachings also highlight the community’s
responsibility to ensure protection against the dangers
of pornography. 35
Southern Baptists likewise believe that parents
are the primary stewards of their children, especially
on issues of morality. 36 Consistent with that sacred
duty, Southern Baptists encourage families “to
exercise deliberate care and concern for instructing
[their] children how to wisely use online resources for
good and to show appropriate discernment in
protecting [their] children from harmful influences.” 37
The Southern Baptist Convention has also explicitly
called for governments to do what Texas has done
here: to enact laws supporting the family and
34 CCC, supra note 7, §§ 2222, 2224.
35 Id. § 2211.
36 S. Baptist Convention, Resolutions: On the God-Given Rights
and
Responsibilities
of
Parents
(June
12,
2024),
https://tinyurl.com/y2w8rstd (hereinafter “SBC, Parents”).
37 SBC, Pornography, supra note 14.
14
nurturing children by guarding them against exposure
to pornography. 38
Similarly, The Church of Jesus Christ of Latterday Saints teaches that “parents have a sacred duty to
teach their children and instill righteous values in
them” and to protect them “from the influence of the
adversary.” 39 It thus urges parents “to teach children
to avoid any pornographic photographs or stories” and
to help their “[c]hildren and youth *** to know *** that
pornography of any kind is a tool of the devil; and if
anyone flirts with it, it has the power to addict, dull,
and even destroy the human spirit.” 40 And the Church
“invite[s] parents to have family discussions to develop
guidelines about how to use media and technology in
positive and safe ways,” and to ensure that such
conversations “provide opportunities for parents to
teach that the powers associated with creating
families”—powers that pornography perverts—“are
sacred and central to God’s plan.” 41
2. Jewish parents bear a similarly strict
responsibility. They are expected to instruct their
38 SBC, Internet Pornography, supra note 12; SBC, Parents, supra
note 36.
39 The
Church of Jesus Christ of Latter-day Saints,
Topics & Questions: Pornography, https://tinyurl.com/bdcu4nmw
(last visited Nov. 21, 2024).
40 LDS
Fam. Servs., Safeguarding Our Homes, Protecting Our
Children, The Church of Jesus Christ of Latter-day Saints
(quoting M. Russell Ballard, Like a Flame Unquenchable, Ensign
86 (May 1999)), https://tinyurl.com/2fmavjak.
41 Letter from the First Presidency, The Church of Jesus Christ
of Latter-day Saints, to All Members of the Church (Jan. 29,
2020) (on file with author).
15
children “to keep the way of Adonai and to do what is
right and just.” 42 This obligation is further reflected in
God’s exhortation to Moses: “[T]ake heed to thyself,
and keep thy soul diligently, lest thou forget the things
which thine eyes saw, and *** make them known unto
thy children and thy children’s children.” 43 This divine
injunction includes a requirement that parents who
“see[] [their] son becoming associated with evil
influences”—such as pornography—rebuke him, even
as it condemns parents who “refrain[] from rebuking”
in such circumstances. 44
3. Islam likewise directs parents to protect their
families from, and teach them to avoid, all sexual
immorality. The Qur’an teaches: “O believers! Protect
yourselves and your families from a Fire whose fuel is
people and stones.” 45 According to a common
interpretation, this verse directs parents to teach their
families “what Allah has made obligatory for them and
what Allah has forbidden for them” 46—including any
kind of illicit sexual activity, such as pornography.
Islamic teachings also oblige parents to prevent
disobedience to those commandments. 47
4. As pornography has become more widespread,
it has become increasingly difficult for parents—
42 Genesis 18:19 (CJB).
43 Deuteronomy 4:9 (ASV).
44 Mishneh Torah, Hilchot Teshuvah 4:1.
45 Qur’an
yzbvrvh4.
66:6 (Mustafa Khattab trans.), https://tinyurl.com/
46 Commentary
on Qur’an
https://tinyurl.com/2mky5fy4.
47 Ibid.
66.6
(Ibn
Kathir
abridged),
16
including parents striving to raise their children
consistent with their religious traditions—to prevent
their children from viewing it. 48 And the Internet has
made it increasingly difficult to create laws that fully
protect children from pornography. 49
For example, one expert reports that “kids are
becoming
increasingly
tech-savvy,
often
outmaneuvering [their parents’] best efforts to protect
them online.” 50 This means that “[n]o matter how hard
[parents] try” to protect their children from
pornography, “children *** are sly and constantly
finding ways to circumvent the controls [their parents]
implement.” 51 Another commentator explains that,
“[a]lthough parents can block adult websites and
nudity from being accessed in a web browser, these
filters don’t work inside of apps. When a child can get
to PornHub in five clicks inside Snapchat, all without
leaving the app, such filters become meaningless.” 52
Given their children’s technical savvy, parents
need multiple defenses. Anything that removes one
line
of
defense—such
as
age-verification
48 L. David
Perry, Am. Coll. of Pediatricians, The Impact of
Pornography (Aug. 2024), https://tinyurl.com/5yb3uezr.
49 Ronald
J. Krotoszynski, Jr., Childproofing the Internet, 41
Brandeis L.J. 447, 456 (2003).
50 How Kids Bypass Parental Controls in 2024: A Parent’s Guide,
SafeTelecom:KosherOS Blog (Oct. 8, 2024), https://tinyurl.com/
ydcyrzf4.
51 Tony
Perez, How Kids are Bypassing Porn Content Filters,
CleanBrowsing (Mar. 6, 2020), https://tinyurl.com/mr2vk72n.
52 Clare Morell, Opinion, Parents need help to protect their kids
from online pornography,
https://tinyurl.com/28kdjcvs.
The
Hill
(July
6,
2024),
17
requirements—hinders the ability of religious parents
(and others with similar moral views) to protect their
children. And that is a matter of serious concern to
faith communities.
C.
Children’s exposure to pornography
creates many challenges later in life.
Religious concerns about the increase of
children’s exposure to pornography are exacerbated by
the long-term adverse effects of pornography use.
Amici have a great deal of real-world experience with
these effects.
1. For the religious groups discussed above, the
consequences stemming from their youth’s having
unfettered access to pornography are enormous, even
eternal. One study, for example, found that “increases
in pornography viewing are negatively related to
religious service attendance, *** prayer frequency,
and closeness to God, while positively related to
religious doubts.” 53
This study reflects what many religious groups
have always known about the spiritual dangers of
pornography. To quote the Apostle Peter, “fleshly
lusts”—which are exacerbated by pornography—“war
against the soul.” 54 Thus, as Amicus The Church of
Jesus Christ of Latter-day Saints puts it in its
guidance to members, pornography “brings darkness
into [the] lives” of those who use it and is “ particularly
53 Samuel
L. Perry & George M. Hayward, Seeing is (Not)
Believing: How Viewing Pornography Shapes the Religious Lives
of Young Americans, 95 Soc. Forces 1757, 1774-1775 (2017),
https://tinyurl.com/f47xtm34.
54 1 Peter 2:11 (KJV).
18
harmful in how it affects [a person’s] relationship with
God and [that person’s] ability to feel” divine
guidance. 55
Amici have seen this sad cycle play out repeatedly
as community members fall prey to pornography, only
to turn away from their faith rather than abandon
their pornography addictions. Religious parents are
thus rightly concerned that pornography use has a
direct secularizing, anti-religious effect on their
children.
Besides facing such potentially eternal spiritual
consequences, children who view pornography face a
host of other concrete injuries. These are not only welldocumented in the scientific literature discussed
below, but they are also confirmed by Amici’s own
experiences helping their members recover from
pornography addiction and the other serious harms
pornography produces. For example, in Amici’s
experience, pornography exposure distorts intimate
relationships,
including
the
marital
sexual
relationship—often leading to divorce.
2. Pornography’s adverse impact on marriage is
exacerbated by the fact that, as the record in this case
demonstrates, pornography often depicts unhealthy
and even violent sexual practices, including dominant
behaviors, incest, and rape. J.A.158-159. And these
depictions influence the behavior of those who view
them. Indeed, a recent study found that even sexually
mature men who viewed such violent pornography
55 The
Church of Jesus Christ of Latter-day Saints, How does
using pornography affect me?, https://tinyurl.com/2s8dk6mj (last
visited Nov. 21, 2024).
19
were much more likely to exhibit sexual aggression. 56
And violent pornography cannot be avoided on
pornographic websites.
Another recent study analyzed content on
popular “mainstream” pornographic websites—
including many run by Petitioners. It found that one
in eight titles on the landing pages of those sites
described acts that “would fall under the most widely
used policy definition of sexual violence.” 57 The study
authors noted that, because they looked only at the
landing pages of some of the most popular
pornographic websites, the study’s results reflected
not the “practices of individual users,” but instead “the
actions of the sites themselves.” 58 The study further
found that exposure to such sexual material affects the
user’s perception of sexual norms, contributing to
normalization of deviant sexual behavior for those
exposed. 59
And, as Amici have seen, when sexually violent
behaviors become normalized in a marriage, the
spouses’ sexual relationship will almost inevitably be
damaged—as will the stability of the marriage itself.
The harm from exposure to violent pornography
is only compounded when such material is viewed by
56 Wenqi
Zheng et al., Pornography Exposure Profiles
Differentiate Sexual Aggression and Its Risk Factors: A PersonCentered Approach, 14 Psych. Violence 280, 285 (2024),
https://tinyurl.com/2n3r4pvw.
57 Fiona Vera-Gray et al., Sexual violence as a sexual script in
mainstream online pornography, 61 British J. Criminology 1243,
1257 (2021), https://tinyurl.com/ye22nxyk.
58 Id. at 1246.
59 Id. at 1257.
20
children. To be sure, exposure to pornography at any
age increases the risk of unhealthy and violent sexual
practices. But the risk is higher when the exposure
occurs at younger ages. 60
For example, adolescent boys exposed to
pornography are “more prone to violence, aggression,
and sexual coercion, and are more susceptible to
sexual coercion by peers and adults.” 61 This, in turn,
leads to “higher divorce rates, infidelity, and feelings
of sexual incompetence.” 62 And the age when males
first see pornography directly “shapes their sexual
behavior and tendency to seek power over women” by
increasing the likelihood that young men will expect
young girls to engage in pornographic—and often
violent—sexual acts and coercing young girls to meet
their expectations. 63
For their part, adolescent girls exposed to
pornography are “more likely to tolerate emotional,
physical, and sexual abuse.” 64 One study of British
children found that more than a third of girls (39%)
believe that even the most violent pornography
realistically reflects normal sexual behavior. 65 Such
60 Ethan A. Marshall & Holly A. Miller, Age and Type of First
Exposure to Pornography: It Matters for Girls and Boys, 45
Deviant Behav. 377, 387 (2023), https://tinyurl.com/ft3hssme.
61 Focus for Health Found., How Pornography Impacts Violence
Against Women and Child Sex Abuse, https://tinyurl.com/
yvnkec8x (last visited Nov. 21, 2024).
62 Ibid.
63 Ibid.
64 Ibid.
65 Elena Martellozzo et al., Middlesex Univ., for Nat’l Soc’y for
21
beliefs lead to altered expectations of sexual
experiences, imitation of deviant behavior shown in
pornographic material, and unhealthy attitudes
toward sex—all of which profoundly harm women.
These direct consequences of exposure to
pornography are troubling in any context. But within
a marriage, they imperil the marriage’s quality and
durability. Amici see these consequences regularly as
they counsel men and women in troubled marriages.
3. Exposure to pornography—violent or not—is
also associated with increased mental health problems
such as depression, especially for adolescents. 66 And
scientific studies confirm Amici’s own experience with
these threats to their members’ mental health.
For example, a 2009 study found that
pornography exposure can lead to emotional
disturbances that affect the way children interact with
others. 67 Another study found that adolescents who
are exposed to pornography are “less socially
integrated and more socially marginal[, and] ***
express less commitment to their families, fewer proPrevention of Cruelty to Children and Children’s Comm’r for
Eng., “I Wasn’t Sure It Was Normal to Watch It…”: A quantitative
and qualitative examination of the impact of online pornography
on the values, attitudes, beliefs, and behaviours of children and
young
people
9,
Forensic
Psych.
Servs.
(2016),
https://tinyurl.com/4j7sphjj.
66 Magdalena
Mattebo et al., Pornography Consumption and
Psychosomatic and Depressive Symptoms Among Swedish
Adolescents: A Longitudinal Study, 123 Upsala J. Med. Scis. 237,
237, 243 (2018), https://tinyurl.com/2fmsxfyz.
67 Michael
Flood, The Harms of Pornography Exposure Among
Children and Young People, 18 Child Abuse Rev. 384, 391-392,
393-394 (2009), https://tinyurl.com/3pfhcfy9.
22
social attitudes, and less attachment to school.” 68 And
lower social integration is correlated with negative
mental health outcomes such as depression, anxiety,
and suicide. 69
Still another study weighed the effect of exposure
to pornography on a person’s sense of identity. 70 The
study concluded that “[r]eligious young men who use
pornography may have more problems with identity
formation if they are having to struggle to find a place
for pornography use in their identity, especially as it
relates to family formation and dating, as well as the
perception of oneself as a religious individual who
thinks pornography is wrong.” 71 Here again, this risk
was “particularly problematic” when pornography use
happened during “emerging adulthood”—exactly the
problem addressed by Texas’ effort to limit childhood
pornography consumption. 72
These consequences of adolescent pornography
exposure are but a few of the harms discussed in the
literature. And they accord with Amici’s own
experiences assisting their members as they try to
68 Gustavo
S. Mesch, Social bonds and Internet pornographic
exposure among adolescents, 32 J. Adolescents 601, 616 (2009),
https://tinyurl.com/yr2ndm67.
69 Alejandra Arango et al., Social Connectedness and Adolescent
Suicide Risk, 65 J. Child Psych. & Psych. 785, 786 (2023),
https://tinyurl.com/59vvpa7j.
70 Larry J. Nelson et al., “I Believe It Is Wrong But I Still Do It”:
A Comparison of Religious Young Men Who Do Versus Do Not Use
Pornography, 2 Psych. Religion & Spirituality 136, 144 (2010),
https://tinyurl.com/4d95xe85.
71 Ibid.
72 Ibid.
23
forsake pornography. In short, both science and
Amici’s
experience
show
that
pornography
undermines the spiritual and mental health of
children exposed to it.
D. Ubiquitous smartphone use makes
pornography
more
accessible
to
children than ever before.
Childhood access to pornography has been
supercharged by the smartphone, which now
permeates all levels of society. Whatever benefits
smartphones provide, their ubiquity comes at great
cost: Smartphones now allow everyone—minors and
adults alike—24/7 access to hardcore pornography.
And, although parents have other tools, regulations
like the Texas law here give parents meaningful, even
critical, assistance in their efforts to protect their kids
from pornography’s dangers.
1. Gone are the innocent days when parents
could safeguard their children from pornography
simply by scrutinizing which VHS tapes come into
their houses or keeping the family computer in a
shared space. Today, smartphones are owned not only
by 91% of adults, 73 but also by 53% of 11-year-olds 74
and an astounding 95% of teens. 75 And children are
73 Mobile
Fact
Sheet: Mobile
Phone
Ownership
Over Time, Pew Rsch. Ctr. (Nov. 13, 2024), https://tinyurl.com/
yypjzyuc.
74 Aliah Richter et al., Youth Perspectives on the Recommended
Age of Mobile Phone Adoption: Survey Study, 5 JMIR Pediatrics
& Parenting e40704, at 1 (2022), https://tinyurl.com/y8havv45.
75 Emily
A. Vogels et al., Teens, Social Media and Technology
2022, Pew Rsch. Ctr. (Aug. 10, 2022), https://tinyurl.com/
44wzd39a.
24
getting smartphones younger than ever. A 2021 study
found that 42% of children have smartphones by age
10, 76 up from 2009 when just 9% of children had cell
phones of any type by that age. 77
Thus, even if parents deny their own children a
smartphone—as many concerned about pornography
will do—those children likely have friends whose
parents did not make that choice and whose phones
thus serve as a conduit for exposure. With such
unfettered access to the Internet, pornography can be
accessed in the car, at the park, in school restrooms,
and, indeed, almost anywhere.
2. Because a significant amount of pornography
is viewed by accident, the growth of smartphone use
not only makes pornography more accessible, it also
makes it more invasive. A 2022 study found that an
astounding 73% of teens “reported that they ha[d]
consumed pornography.” 78 And 15% of respondents
who were 10 or younger reported the same, with the
average teen “report[ing] having first consumed
pornography when they were 12.” 79
76 Natasha Burgert & Valerie Williams, What Is The Best Age For
A Child’s First Smartphone?, Forbes Health (Oct. 9, 2023),
https://tinyurl.com/uum8kkk7 (citing Victoria Rideout et al., The
Common Sense Census: Media Use by Tweens and Teens, 2021,
Common Sense (2022)).
77 Amanda Lenhart, Is the Age at Which Kids Get Cell Phones
Getting Younger?, Pew Rsch. Ctr. (Dec. 1, 2010), https://tinyurl.
com/4u8ccktn.
78 Michael
B. Robb & Supreet Mann, Teens and Pornography,
2022, at 5, Common Sense (2023), https://tinyurl.com/razb6m48.
79 Ibid.
25
Many children are also exposed through no fault
of their own. In one British study, children were asked
about the first time they were exposed to
pornography. 80 Of survey respondents, 32% of
children reported they saw it by accident. 81 And 22%
reported they were shown pornography by someone
else without expecting it or having asked for it. 82
Further, even those who view pornography
accidentally the first time may not be able to avoid it
in the future. That is because youthful “[p]ornography
exposure *** not only harms children in the short term
but can develop into an addiction.” 83 All this means
that, even when parents prevent visible forms of
pornography consumption in their homes, parents
may still fall short of shielding their children from
exposure or even addiction.
3. Smartphones are largely to blame for this
early exposure. As one study concluded, “[i]n 2020,
mobile devices made up 84% of all [Petitioner]
Pornhub’s traffic worldwide.” 84 By October 2023,
smartphones had nearly entirely eclipsed other
devices as the chosen portal for this illicit activity as
80 Martellozzo et al., supra note 65, at 23.
81 Id. at 25.
82 Ibid.
83 Gabriela Coca & Jocelyn Wikle, What Happens When Children
Are Exposed To Pornography?, Inst. for Fam. Stud. (Apr. 30,
2024), https://tinyurl.com/49rnb8sf.
84 What
Devices Do Consumers Use the Most to Watch Porn?,
Fight the New Drug, https://tinyurl.com/m3e2naej (last visited
Nov. 21, 2024).
26
“approximately 97 percent of the traffic
Pornhub.com came from mobile devices.” 85
to
That devices owned by 95% of teenagers are now
being used to view more than 90% of pornography
online is especially alarming for Amici, whose youth
are regularly using smartphones to access that
material. And the fact that smartphones can be used
to freely find pornography online belies any claim that
the modest protections for children reflected in
H.B. 1181 and similar laws in other States will
materially burden adults.
4. For all these reasons, smartphones have
revolutionized the problem of childhood exposure to
pornography since this Court last addressed that issue
in Ashcroft v. ACLU, 542 U.S. 656 (2004). There, the
Court was largely addressing stable “home computers”
often placed in a central location, not small devices
that can be hidden in a child’s pocket. Id. at 667. So
Ashcroft is readily distinguished on that basis alone.
In short, given the rise of smartphones, if States
like Texas cannot respond legislatively to the
increased risks of ubiquitous pornography in the
hands of children, then parents and religious
communities will be left to fight this vicious plague
alone. And it is likely to be a losing battle.
85 Laura Ceci, Worldwide visits to Pornhub from April 2022 to
January 2024, by device, statista (Apr. 5, 2024), https://tinyurl.
com/4zxmn8du.
27
II. Applying Strict Scrutiny Here Would
Improperly Block States from Exercising
Their Police Powers to Protect Children.
Thankfully, this Court’s decisions do not compel
that result, or the strict scrutiny standard for which
Petitioners and their Amici advocate. To the contrary:
Consistent with this Nation’s history and tradition of
regulating obscenity, this Court’s decision in Ginsberg
establishes that rational-basis review is the proper
standard for laws that, even if they incidentally
burden adult access to pornography, are designed to
protect children from its dangers.
A.
Under Petitioners’ theory, most laws
seeking to protect children from
pornography would be invalid.
Most laws seeking to protect children from
pornography are likely to have at least some incidental
effects on adults. Although those effects are
vanishingly small here, if, as Petitioners urge, strict
scrutiny applied to H.B. 1181, many analogous laws
would likely be invalid—or at least subjected to
protracted litigation before they could take effect.
1. Given the realities of the digital age, we no
longer live in a world where laws directly limiting the
sale of pornography to minors can adequately further
society’s compelling interest in limiting exposure to
minors. As discussed above, even when parents are
conscientious, children can often find pornography
online. If children are to be meaningfully protected, an
all-hands-on-deck approach is required.
Such an approach, which may require multiple
technological safeguards for children, may impose at
28
least some burden on adult access to pornography,
however small. Thus, if even H.B. 1181’s commercially
reasonable steps to ensure that only adults can access
pornography are enough to trigger strict-scrutiny
review—despite imposing no more than a de minimis
burden on adults—it is hard to imagine what other
incidental burdens would not trigger such review.
Petitioners effectively concede as much: While
rattling off (at 37-41) a long list of ways they consider
H.B. 1181 to fail narrow tailoring, they offer no
example—for there is none—of a law that would
protect children without incidentally imposing at least
a de minimis burden on adults who wish to view
pornographic materials.
2. Because most laws regulating child access to
pornography may incidentally impose such minor
burdens on adults, the logical consequence of
Petitioners’ proposed rule is that any attempt to
protect children from pornography must be narrowly
tailored. And, of course, strict scrutiny is “extremely
difficult to satisfy” 86 because “speech restrictions
rarely outweigh speech under strict scrutiny.” 87
The difficulty of satisfying strict scrutiny is
established in this Court’s other obscenity cases, in
which laws subject to strict scrutiny rarely, if ever,
survive this Court’s review. See Sable Commc’ns of
86 Ashutosh
Bhagwat, What if I Want My Kids to Watch
Pornography?: Protecting Children from “Indecent” Speech, 11
Wm. & Mary Bill of Rts. J. 671, 672-673 (2003).
87 Daniel
J. Solove, The Virtues of Knowing Less: Justifying
Privacy Protections Against Disclosure, 53 Duke L.J. 967, 983
(2003).
29
Cal., Inc. v. FCC, 492 U.S. 115, 131 (1989); Denver
Area Educ. Telecomms. Consortium, Inc. v. FCC, 518
U.S. 727, 753, 753-755, 760, 766 (1996); Reno v. ACLU,
521 U.S. 844, 874, 879 (1997); Ashcroft, 542 U.S. at
665, 673; United States v. Playboy Ent. Grp., Inc., 529
U.S. 803, 806-807, 827 (2000). Amici agree with Texas’
showing (at 25-29) that the laws at issue in those cases
are distinguishable from H.B. 1181 in that they
“banned protected speech for all listeners” rather than
“requir[ing] the speaker to serve as the gatekeeper to
ensure those individuals who have a constitutional
right to do so (and only those individuals) can access
the material.”
But these cases are nevertheless helpful in
demonstrating that the burden of proving sufficient
tailoring to satisfy strict-scrutiny review is hard for
States to carry: The potential that a given law will
incidentally burden adults makes it difficult to
establish the tight fit between means and ends that
strict scrutiny requires. After all, a law that furthers
the State’s interest in protecting children from
pornography, but fails to regulate every way that
children
access
it,
will
face
claims
of
underinclusiveness. See, e.g., Reed v. Town of Gilbert,
576 U.S. 155, 172 (2015). And more robust laws that
would be more successful in protecting children may
impose higher burdens on adults and thus will face the
inverse problem of facial overbreadth challenges. See,
e.g., AFPF v. Bonta, 594 U.S. 595, 615 (2021).
3. Congress learned these lessons the hard way.
Although Congress sought to protect children from
pornography through the Child Online Protection Act,
this Court in Ashcroft declared the statute
30
unconstitutional because there were less restrictive
means available. Ashcroft, 542 U.S. at 660, 673. A
State’s nominal authority to prevent childhood
pornography exposure is little help if it inevitably
faces a burden of proof that, in most cases, is
impossible to satisfy. That general fact is no less true
even though, as Texas shows (at 35-38), H.B. 1181
would survive even strict scrutiny.
In sum, if Petitioners’ reading of this Court’s cases
were correct, it would virtually guarantee that any law
seeking to protect children from pornography on the
Internet will face strict scrutiny—thus guaranteeing
that most such laws will fail.
B.
Under
Ginsberg,
laws
regulating
distribution of obscene materials to
minors are subject to rational-basis
review.
Fortunately, this Court can (and should) ensure
that States are able to protect minors from the dangers
of pornography by reaffirming that Ginsberg’s
rational-basis standard remains good law. That will
ensure that States retain meaningful tools to protect
children from the scourge of pornography.
1. Ginsberg applied rational-basis review to a
New York law that forbade selling magazines or
pictures considered obscene for minors to minors. 390
U.S. at 633, 639. The Ginsberg Court recognized that
“[t]he well-being of its children is of course a subject
within the State’s constitutional power to regulate.”
Id. at 639.
Ginsberg further explained that “two interests”
justified the State’s power. Ibid. First, “the parents’
31
claim to authority in their own household to direct the
rearing of their children” justified such laws because
States “could properly conclude that parents and
others *** who have this primary responsibility for
children’s well-being are entitled to the support of laws
designed to aid discharge of that responsibility.” Ibid.
And second, States have “an independent interest in
the well-being of [their] youth.” Id. at 640.
2. Those two interests are no less compelling
today. As Texas persuasively explains (at 18-22),
nothing has changed since Ginsberg that would justify
abandoning the application of rational-basis review to
laws regulating children’s ability to access
pornography. Ginsberg’s holding as to the correct legal
standard should control.
Moreover, only the rational-basis standard
applied in Ginsberg would give States the leeway
necessary to further the joint parental/state interests
in protecting children from pornography. 390 U.S. at
641-643. As in other areas, States must be free to
experiment with laws regulating childhood access to
pornography to ensure that children are effectively
protected. See, e.g., West Virginia v. EPA, 597 U.S.
697, 739 (2022) (Gorsuch, J., concurring) (states must
be “laborator[ies]” for “novel social and economic
experiments” (citation omitted)).
If States are not so empowered, they will be
unable to respond to the many ways that children can
be exposed to pornography even when their parents
diligently try to protect them. After all, technology is
constantly changing. And, as technology evolves, laws
that might adequately protect children today may not
do so in the future. Only rational-basis review gives
32
States enough discretion to enact laws that respond to
such technological changes without always trying to
hit a moving target. This Court should endorse the
Fifth Circuit’s conclusion on that important point.
C.
This Court can affirm States’ authority
to
regulate
minors’
access
to
pornography without undermining
First Amendment protections.
Ginsberg also reached the correct result as a
matter of first principles. As Ginsberg correctly
recognized, America has a long history of regulating
obscenity. Given that history, Texas’ regulation of
minor’s access to pornography can stand without
calling into question the protection of other types of
expression that, unlike obscenity, have historically
been protected.
1. This Court has consistently turned to
America’s history and tradition for guidance in
assessing the existence and scope of individual rights
under the Constitution. In United States v. Rahimi,
144 S. Ct. 1889 (2024), for example, all nine Justices
understood their role to be to “ascertain whether [a]
new law is relevantly similar to laws that our tradition
is understood to permit.” Id. at 1898; accord id. at 1930
(Thomas, J., dissenting) (“A firearm regulation that
falls within the Second Amendment’s plain text is
unconstitutional unless it is consistent with the
Nation’s historical tradition of firearm regulation.”).
The Court has likewise encouraged the practice of
looking at “history and tradition *** when considering
the scope of the First Amendment.” Vidal v. Elster, 602
U.S. 286, 301 (2024). Indeed, the Court has often
33
recognized that a “history and tradition of regulation
are important factors in determining” whether
expression is protected. Williams-Yulee v. Florida Bar,
575 U.S. 433, 446 (2015) (citation omitted).
Consistent with these cases, the Court can—and
should—turn to history and tradition to determine
how, if at all, the First Amendment protects
pornography, especially pornography to which
children have access.
2. The relevant history shows that America has a
long tradition of regulating obscenity—if not
forbidding it outright. And that is because, until
recently, “it was universally assumed that, whatever
obscenity was, it was not protected by the First
Amendment” at all. 88
Consistent with that understanding, Congress
has long regulated obscenity unrestricted by the First
Amendment. Thus, in Roth v. United States, 354 U.S.
476 (1957), the Court itself recognized that, between
1842 and 1956, Congress had enacted 20 different
obscenity laws. Id. at 485. State legislatures also
regulated obscenity starting as early as 1712 and, by
1957, every state had obscenity laws. Id. at 482-483,
485.
So strong was the historical record of regulating
obscenity that, by the time the Court articulated its
now-controlling obscenity standard, it could say,
correctly, that it was “categorically settled *** that
obscene material is unprotected by the First
88 Geoffrey R. Stone, Sex and the First Amendment: The Long and
Winding History of Obscenity Law, 17 First Amend. L. Rev. 134,
139 (2018).
34
Amendment.” Miller v. California, 413 U.S. 15, 23
(1973) (emphasis added, citations omitted). And
Miller, while paying homage to that history, sharply
departed from it by imposing “free speech standards”
that “lack any overt mooring in” either “the text or
original meaning of the Constitution,” Utah v. Watts,
2021 UT 60, ¶ 63, 498 P.3d 365, 380 (Lee, A.C.J.,
concurring) (cleaned up), or the Nation’s history and
tradition of obscenity regulation.
3. That history and tradition contrasts with our
history and tradition of protecting other expression,
such as religious speech. Religious freedom, unlike the
freedom to consume obscene materials, stems from
America’s colonial history, with roots going at least as
far back as the Maryland Toleration Act in 1649. Since
then, the Court has acknowledged an American
history and tradition in legislative prayer, Town of
Greece v. Galloway, 572 U.S. 565, 575-576 (2014);
legislative chaplains, Marsh v. Chambers, 463 U.S.
783, 786-792 (1983); church tax exemptions, Walz v.
Tax Comm’n of City of N.Y., 397 U.S. 664, 680 (1970);
and private prayer in public spaces, Kennedy v.
Bremerton Sch. Dist., 597 U.S. 507, 540 (2022).
Political speech and other forms of expression have a
similarly strong tradition of protection, unlike
obscenity’s history and tradition of regulation outside
First Amendment protection. See, e.g., Chaplinsky v.
New Hampshire, 315 U.S. 568, 571-572 (1942)
(recognizing the exceptions to speech protections as
“well-defined and narrowly limited”).
Under a historical approach, the difference
between obscenity and other forms of expression could
not be starker. As Justice Breyer explained, obscenity
35
is one of the few categories of speech that are
“generally unprotected by the First Amendment
entirely because of [its] content.” Barr v. American
Ass’n of Pol. Consultants, Inc., 591 U.S. 610, 644
(2020) (Breyer, J., concurring in part and dissenting in
part). To invalidate Texas’ law based on perceived
incidental burdens on adult access to obscene
materials would elevate protections for smut far
beyond what our history and tradition justify.
In short, consistent with long tradition, this Court
should allow Texas to regulate minors’ access to
material obscene for them, as States have always
done. And the Court can do so without undermining
the protections afforded to other forms of expression
because obscenity has a distinctly unprotected status
in America’s history and tradition.
CONCLUSION
Texas rationally concluded that it could protect
children from the evils of pornography by requiring
pornographers to verify the age of those seeking to
access it. In so doing, Texas furnished religious
parents with an important tool that helps them fulfill
their religious duty to protect their children from
pornography. That tool, if lost, would increase the risk
that children will be subjected to pornography’s
spiritually, emotionally, and mentally damaging
influence. The Court should affirm.
36
Respectfully submitted,
GENE C. SCHAERR
Counsel of Record
H. CHRISTOPHER BARTOLOMUCCI
HANNAH C. SMITH
JAMES C. PHILLIPS
JAMES A. HEILPERN
JOSHUA J. PRINCE
SCHAERR | JAFFE LLP
1717 K Street NW, Suite 900
Washington, DC 20006
(202) 787-1060
gschaerr@schaerr-jaffe.com
THOMAS R. LEE
SCHAERR | JAFFE LLP
299 South Main Street
Suite 1300
Salt Lake City, UT 84111
R. SHAWN GUNNARSON
KIRTON | MCCONKIE
36 S. State Street, Suite 1900
Salt Lake City, UT 84111
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.