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

No. 23-1122

IN THE

Supreme Court of the United States

FREE SPEECH COALITION, ET AL.,

Petitioners,

V.

KEN PAXTON, IN HIS OFFICIAL CAPACITY AS ATTORNEY

GENERAL FOR THE STATE OF TEXAS,

Respondent.

On Writ of Certiorari to the United States Court of

Appeals for the Fifth Circuit

BRIEF OF NURSE HEIDI OLSON AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

Jeffrey A. Wald

NELSON MULLINS RILEY

& SCARBOROUGH LLP

380 Knollwood Street, Suite 530

Winston-Salem, NC 27103

336-774-3335

jeffrey.wald@nelsonmullins.com

Counsel for Amicus Curiae

(i)

TABLE OF CONTENTS

Table of Authorities ................................................... ii

Interest of Amicus Curiae .......................................... 1

Summary of Argument .............................................. 2

Argument.................................................................... 6

I. Online Pornography Is Fueling An

Increase In Child-On-Child Sexual

Violence. ........................................................... 6

A. The Harm To Children Is Of A

Different Degree And Magnitude

Than In Ginsburg....................................... 6

B. Child-On-Child Sexual Assault Is A

Rising Crisis ............................................... 8

II. H.B. 1181 Survives Constitutional

Scrutiny. ........................................................ 18

A. The Speech At Issue Has No—Or at

Most Low—Constitutional Value ............ 18

B. H.B. 1181 Is Constitutional Under

Ginsburg ................................................... 20

C. H.B. 1181 Imposes A Minimal

Burden On Adult Access To

Protected Sexual Material ....................... 23

Conclusion ................................................................ 25

(ii)

TABLE OF AUTHORITIES

Cases

Page(s)

Ashcroft v. Am. C.L. Union, 542 U.S. 656

(2004) ............................................................. 7, 19

Erznoznik v. City of Jacksonville, 422 U.S.

205 (1975) ........................................................... 7

F.C.C. v. Pacifica Found., 438 U.S. 726

(1978) ................................................................. 18

Florida v. Jardines, 569 U.S. 1 (2013) .................... 4

FW/PBS, Inc. v. Dallas, 493 U.S. 215 (1990) ....... 19

Ginsberg v. State of New York, 390 U.S. 629

(1968) ............................................................. 6, 21

Ginzburg v. United States, 383 U.S. 463

(1966) ................................................................. 19

Lange v. California, 594 U.S. 295 (2021) ................ 4

Los Angeles v. Alameda Books, Inc., 535 U.S.

425 (2002) .......................................................... 19

McIntyre v. Ohio Elections Comm’n, 514 U.S.

334 (1995) ........................................................... 5

R.A.V. v. City of St. Paul, 505 U.S. 377

(1992) ................................................................. 18

United States v. Playboy Entertainment

Group, Inc., 529 U.S. 803 (2000) ...................... 19

(iii)

United States v. X-Citement Video, Inc., 513

U.S. 64 (1994).................................................... 19

Young v. American Mini Theatres, Inc., 427

U.S. 50 (1976)................................................ 5, 18

Statutes

Tex. Civ. Prac. & Rem. Code § 129B (H.B.

1181) ........................................................... passim

Other Authorities

Amy Adler, Arousal by Algorithm, 109

Cornell L. Rev. 787, 811 (2024) ........................ 20

Kyriak Alexandraki, Vasileios Stavropoulos,

Emma Anderson, Mohammed Qasim

Latifi, & Rapson Gomez, R, Adolescent

Pornography Use: A Systematic Literature

Review of Research Trends 2000-2017,

Current Psychiatry Reviews 47-48 (2018) ......... 11

M. Brand, Theories, prevention, and treatment

of

pornography-use

disorder,

Suchttherapie, 20(1) (2019) ................................ 13

Children’s Mercy Kansas City, Redcap

database (2015-2023) ............................................ 9

David Finkelhor & Anne Shattuck,

Characteristics

of

Crimes

Against

Juveniles, Crimes against Children

Research Center (2012) ........................................ 9

(iv)

Padraic Flanagan, Almost two-thirds of young

people are addicted to online porn, research

suggests, Daily Mail (2024), available at

https://www.dailymail.co.uk/news/article12988023/thirds-young-people-addictedonline-pornography.html .................................... 13

Niki Fritz, Vinny Malik, Bryant Paul, &

Yanyan Zhou, A Descriptive Analysis of the

Types, Targets, and Relative Frequency of

Aggression in Mainstream Pornography,

Archives of Sexual Behavior 3041-3053

(2020). .................................................................. 12

René Girad, Anorexia and Mimetic Desire,

Michigan State University Press (2013) ............ 14

René Girard, Deceit, Desire, and the Novel:

Self and Other in Literary Structure, The

Johns Hopkins University Press (1965) ............ 14

K. Jenson, Top two reasons why children’s

brains are vulnerable to pornography

(2012),

available

at

https://www.protectyoungminds.org/2012/

06/01/top-two-reasons-why-childrensbrains-are-vulnerable-to-pornography............... 13

Jonathan Van Maren, Celebrities Against

Pornography, First Things (Nov. 6, 2023),

available at

https://www.firstthings.com/webexclusives/2023/11/celebrities-againstpornography ........................................................ 3

(v)

https://fightthenewdrug.org/states-withporn-public-health-resolutions/ ............................ 4

Robin McDowell, et al., AP Uncovers 17,000

Reports of Sexual Assaults at Schools

across US (May 1, 2017), available at

https://www.boston.com/news/nationalnews/2017/05/01/ap-uncovers-17000reports-of-sexual-assaults-at-schoolsacross-us/ ............................................................... 9

National Analysis of Police-Recorded Child

Sexual Abuse & Exploitation (CSAE)

Crimes Report (2024), available at

https://www.vkpp.org.uk/assets/Files/Publ

ications/National-Analysis-of-policerecorded-CSAE-Crimes-Report-2022external.pdf ......................................................... 10

National Center on the Sexual Behavior of

Youth. Adolescents, available at from

https://www.ncsby.org/adolescents .................... 10

Peggy Orenstein, The Troubling Trend in

Teenage Sex, New York Times (2024).

Available

at

https://www.nytimes.com/2024/04/12/opin

ion/choking-teen-sex-braindamage.html#:~:text=Herbenick’s%20sur

veys%20girls%20and%20women,two%20a

nd%20a%20half%20times .................................. 12

Heidi Olson, Why So Many Teen Girls Are

Planning on Becoming OnlyFans Stars,

(vi)

Fight the New Drug (Oct. 17, 2023),

available

at

https://fightthenewdrug.org/many-teengirls-planning-on-becoming-onlyfansstars/ .................................................................... 17

Lucia F. O’Sullivan, Lori A. Brotto, E. Sandra

Byers, Jo Ann Majerovich, Judith A.

Wuest, Prevalence and Characteristics of

Sexual Functioning Among Sexually

Experienced Middle to Late Adolescents,

Journal of Sexual Medicine 630-641 (2014)

............................................................................. 14

Jochen Peter & Patti M. Valkenburg,

Adolescents and Pornography: A Review of

20 Years of Research, The Journal of Sex

Research 509, 522 (2016) .................................... 10

Michael B. Robb & Supreet Mann, Teens and

Pornography, Common Sense Media

(2022),

available

at

https://www.commonsensemedia.org/sites

/default/files/research/report/2022-teensand-pornography-final-web.pdf .......................... 15

Natahsa Singh, Talk to Your Kids About Porn,

The Atlantic (2018), available at

https://www.theatlantic.com/ideas/archive

/2018/08/talking-to-kids-aboutporn/568744/........................................................ 13

Nicky Stanley, Christine Barter, Marsha

Wood, Nadia Aghtaie, Cath Larkins, Alba

Lanau, A., & Carolina Overlien, C,

(vii)

Pornography, Sexual Coercion and Abuse

and Sexting in Young People’s Intimate

Relationships: A European Study, Journal

of Interpersonal Violence, 2919-2944

(2018) ................................................................... 10

Chyng Sun, Matthew B. Ezzell, & Olivia

Kendall, Naked Aggression: The Meaning

and Practice of Ejaculation on a Woman’s

Face, Violence Against Women 1710-1729

(2017) ................................................................... 12

Eugene Volokh, Freedom of Speech, Shielding

Children, and Transcending Balancing,

1997 Sup. Ct. Rev. 141, 195 (1997) .................... 24

Paul J. Wright, Pornography and the Sexual

Socialization

of

Children:

Current

Knowledge and a Theoretical Future,

Journal of Children and Media 305-312

(2014) ................................................................... 12

Michele L. Ybarra & Richard E. Thompson, R,

Predicting the Emergence of Sexual

Violence in Adolescence, Prevention

Science: The Official Journal of the Society

for Prevention Research 403, 412 (2018) ........... 10

A quantitative and qualitative examination of

the impact of online pornography on the

values, attitudes, beliefs, and behaviors of

children and young people, available at

https://dera.ioe.ac.uk/id/eprint/27973/1/M

DX%20NSPCC%20OCC%20pornography

%20report%20June%202016.pdf........................ 15

(viii)

REPORT: 1 in 10 Minors Say Peers Have

Used AI to Generate Nudes of Other Kids,

available at https://www.thorn.org/pressreleases/report-1-in-10-minors-say-peershave-used-ai-to-generate-nudes-of-otherkids/ ..................................................................... 17

-1INTEREST OF AMICUS CURIAE1

Amicus curiae Heidi Olson, RN, MSN, CPN,

SANE-P is a Certified Pediatric Nurse and Certified

Pediatric Sexual Assault Nurse Examiner (SANE),

and the Founder and President of Paradigm Shift

Training and Consulting, which equips healthcare

workers with skills-based training to be able to

identify human trafficking and exploitation. Ms.

Olson has a wide range of experience in pediatric and

forensic nursing and has taught as an adjunct clinical

instructor for the University of Missouri at Kansas

City and the University of St. Mary.

Ms. Olson previously managed a SANE Program

at a large children’s hospital where she performed or

reviewed over 1500 pediatric forensic exams, many of

them trafficking cases, communicated with law

enforcement, child protective services, and a large

multidisciplinary team, as well as educated hundreds

of staff members on relevant topics regarding sexual

violence. She also serves as an expert witness for the

prosecution during trials for victims of sexual assault.

In 2019, Ms. Olson implemented an evidencebased screening process in the Emergency

Department, which has resulted in hundreds of

vulnerable children being identified as victims of

exploitation. She started and led the human

trafficking work group at a children’s hospital and has

organized and presented at multiple human

trafficking events in Kansas City. She has testified in

favor of bills that have been passed into law on the

1 No counsel for a party authored this brief in whole or in part,

and no person other than amicus and its counsel made any

monetary contribution intended to fund the preparation or

submission of this brief.

-2state level, and at a briefing on Capitol Hill about

protecting children online.

Ms. Olson has also done groundbreaking work to

sound the alarm about the role of pornography in

influencing child-on-child sexual assault. Over the

last few years, she has presented internationally

hundreds of times about recognizing human

trafficking,

child-on-child

sexual

assault,

pornography, and exploitation. She has also been

featured in several documentaries regarding these

topics, including Vulnerable Innocence, which has

won 24 awards. Ms. Olson won the Cry Purple award

in 2023, which is given to citizens who are doing

outstanding

anti-trafficking

work

in

their

communities. In 2024, she testified before the United

Nations to discuss the causation between exposure to

online pornography and child-on-child sexual assault,

and the importance of safeguards such as online age

verification.

Ms. Olson submits this brief for two reasons. First,

to emphasize how pornography is influencing childon-child sexual assault, which is just one of the many

harms caused by exposure to online pornography.

Second, to propose that considering the extreme harm

to children in being exposed to online pornography,

the low First Amendment value of commercialized

pornography, and the minimal burden imposed on

adult access to such pornography by Texas’ ageverification law (H.B. 1181), the law passes

constitutional muster under any of several

constitutional tests.

-3SUMMARY OF ARGUMENT

The harms caused by childhood exposure to

pornography—which are the harms that H.B. 1181

seeks to counter—are not fictitious. Texas has not

passed an unnecessary or unwarranted law. Instead,

the problems caused by childhood exposure to online

pornography are widespread, serious, and escalating.

Many of these harms are well known and have

received increased media attention in the last several

years, even from the likes of notable celebrities such

as Billie Eilish, Kanye West, Bill Maher, and others.2

These problems include addiction, mental health

crises, exploitation, exposure to violent sexual

content, degradation of women, intimacy problems

including impotence, and relationship challenges.

The harms are also widespread given that most

teenagers report having viewed pornography.

Respondent’s Brief (“RB”) 8. But one of the more

serious, yet lesser-known, problems caused by online

pornography is the role it plays in child-on-child

sexual assault. Study after study has confirmed that

the two are causally related, with exposure to online

pornography,

including

increasingly

graphic,

demeaning, and violent content, leading children to

abuse other children.

Against this backdrop, Texas and other States

have passed age-verification laws. Far from an

outright ban on pornography, these laws simply seek

to limit childhood exposure to harmful sexual

material, while ensuring that the burden imposed on

2 Jonathan Van Maren, Celebrities Against Pornography, First

Things

(Nov.

6,

2023),

available

at

https://www.firstthings.com/web-exclusives/2023/11/celebritiesagainst-pornography.

-4adult access to such content is minimal. Because the

harm to children caused by exposure to pornography

is so widespread, pornographic content is so

pervasive, and most kids have ready and easy access

to such pornography through multiple devices at

home, school, and elsewhere, there is no single, onesize-fits-all approach. No one pretends that ageverification laws will end childhood exposure to

pornography, or the problems associated with said

exposure. Nor should anyone pretend that content

filtering or education will alone suffice (as they clearly

have not for the past 20 years). Instead, to address the

seriousness of the harm, every available remedy

should be employed, including age-verification,

content filtering, education, and every other

constitutional means. Because age-verification is a

safe,

effective,

inexpensive,

and

minimally

burdensome response to a severe public-health crisis,3

H.B. 1181 passes muster under any level of First

Amendment scrutiny.

This Court should also reject Petitioner’s anyburden-on-adult-access-to-porn-is-unconstitutional

argument. This is not, nor should it be, the

constitutional standard. Instead, amicus proposes

that the greater the burden, the greater the scrutiny.

The lesser the burden, the lesser the scrutiny.

Because the burden here is minimal—a minute or two

to age verify—there is no constitutional violation.

Finally, this Court should again clarify that not all

First Amendment rights are created equal. In the

Fourth Amendment context, “‘the home is first among

3 Since 2016, at least 16 States have declared that pornography

is a public-health crises, see https://fightthenewdrug.org/stateswith-porn-public-health-resolutions/.

-5equals.’” Lange v. California, 594 U.S. 295, 303 (2021)

(quoting Florida v. Jardines, 569 U.S. 1, 6 (2013)).

Likewise, when it comes to First Amendment Free

Speech analysis, political speech occupies the “core of

the protection afforded by the First Amendment” and

the “First Amendment affords the broadest protection

to such political expression in order to assure the

unfettered interchange of ideas for the bringing about

of political and social changes desired by the people.”

McIntyre v. Ohio Elections Comm’n, 514 U.S. 334,

346–47 (1995) (cleaned up, quotation omitted). On the

other hand, “there is surely a less vital interest in the

uninhibited exhibition of material that is on the

borderline between pornography and artistic

expression than in the free dissemination of ideas of

social and political significance.” Young v. American

Mini Theatres, Inc., 427 U.S. 50, 61 (1976); see also

id., at 70–71 (“[E]ven though we recognize that the

First Amendment will not tolerate the total

suppression of erotic materials that have some

arguably artistic value, it is manifest that society’s

interest in protecting this type of expression is of a

wholly different, and lesser, magnitude than the

interest in untrammeled political debate.”) (opinion of

Stevens, J., joined by Burger, C.J., and White and

Rehnquist, JJ.). If the borderline between

pornography and artistic expression receives less

First Amendment protection than political speech,

then surely the graphic, exploitative content that is

part and parcel of the contemporary commercial

pornography industry should receive even less

protection.

Given the severe and widespread harm suffered by

children at the hands of pornography, this Court

should again reaffirm that, when the health and

-6safety of children are at stake, adults do not have an

unfettered, unrestricted First Amendment right to

obtain and view pornography. Instead, this Court

should clarify that laws protecting children from

sexual material harmful to minors are constitutional

when they place only a minimal burden on an adult’s

ability to access commercial pornography.

ARGUMENT

I. ONLINE PORNOGRAPHY IS FUELING AN INCREASE

IN CHILD-ON-CHILD SEXUAL VIOLENCE.

A. The Harm To Children Is Of A Different

Degree And Magnitude Than In

Ginsburg.

There is no dispute that Texas has a compelling

interest in protecting the well-being of children by

preventing them from accessing harmful sexual

material. By conceding this point (Petitioner’s Brief

“PB” 3), Petitioner likely wants this Court to simply

accept the government’s compelling interest and

move on. But the Court should not do that. Instead,

the Court should closely examine the harm caused by

online pornography—which many States have

declared constitutes a public-health crisis—in

analyzing what’s at stake.

In Ginsberg v. State of New York, this Court

“recognized that the State has an interest to protect

the welfare of children and to see that they are

safeguarded from abuses which might prevent their

growth into free and independent well-developed men

and citizens.” 390 U.S. 629, 640–41 (1968) (cleaned

up). “The only question remaining,” for this Court was

-7“whether the New York Legislature might rationally

conclude, as it has, that exposure to the materials

proscribed by s 484—h constitutes such an ‘abuse.’”

Id. Notably, the specific content at issue in Ginsburg

were “girlie” magazines, which were not obscene for

adults—aka, magazines which showed “female

buttocks with less than a full opaque covering,” or the

“female breast with less than a fully opaque covering

of any portion thereof below the top of the nipple.” Id.

at 632 (cleaned up). Even though this Court

acknowledged that there was significant scholarly

debate about whether this content was indeed

harmful to children, nonetheless, this Court upheld

the statute, concluding that it was not an irrational

piece of legislation. Id. at 641–43.

That the government has an interest—indeed, a

compelling one—in protecting children from the

harmful impact of sexual material has never been

questioned by this Court in the intervening 68 years

since Ginsburg was decided. See, e.g., Erznoznik v.

City of Jacksonville, 422 U.S. 205, 212 (1975) (“It is

well settled that a State or municipality can adopt

more stringent controls on communicative materials

available to youths than on those available to

adults.”); Ashcroft v. Am. C.L. Union, 542 U.S. 656,

675 (2004) (“Ashcroft II”) (“our cases have recognized

a compelling interest in protecting minors from

exposure to sexually explicit materials”) (Stevens, J.,

concurring).

At least three differences stand out regarding the

world of Ginsburg and our world justifying greater

protection of children, not less. First, the heyday of

magazines has long since passed. Ours is a digital

world. Children do not need to sneak off to the

bookstore or magazine rack to obtain pornographic

-8material. It is most likely readily available on several

devices inside their home, or in their pocket.

Second, as Respondent and other amici highlight,

the type of content available to children is vastly

different than the “girlie magazines” at issue in

Ginsburg. See RB 3–6. Nor is the content primarily

pictorial images. Instead, contemporary pornography

involves hardcore pornographic videos. The days of

boys getting their hands on a Playboy, or “girlie

magazine” seem quaint compared to the grotesque,

violent, and abusive hardcore video pornography

available at nearly every child’s fingertip today.

Third, as discussed in more depth, infra, there is

no longer a good-faith debate about the harm caused

by childhood exposure to pornography. See RB 6–9.

These harms are widespread, serious, and escalating

and include mental health trouble, relationship

problems, addiction, exploitation, and toxic attitudes

about sexual intimacy.

In short, the last half century reveals the need for

greater protection of children from harmful sexual

material, not less. This is perhaps nowhere clearer

than in the troubling increase of child-on-child sexual

violence fueled by online pornography.

B. Child-On-Child Sexual Assault Is A Rising

Crisis.

Across the United States (and globe) an alarming

number of children are sexually assaulting other

children. While research on this topic is very limited,

especially in the United States, what exists is

startling. A 2017 Associated Press investigation

“uncovered approximately 17,000 instances of childon-child sexual assaults which occurred in US schools

-9between fall of 2011 to spring 2015,” making sexual

assaults on school property seven times more likely to

be child-on-child rather than committed by adults.4

There is a correlative and causative link between

exposure to pornography and child-on-child sexual

abuse. For example, analysis at a Child Advocacy

Center in the Midwest of intake and assessment data

of children suspected of sexual or physical child abuse

revealed that “children who disclosed exposure to

pornography had 3.3 times greater likelihood of

engaging in harmful sexual behavior compared to

those who did not.”5 Further, a decade of data from

the hospital where Ms. Olson works shows that

anywhere from one-third to almost one-half of those

committing a sexual assault against a child are

minors themselves. In fact, the age range most likely

to commit sexual assaults are 11–15-year-old-males,6

with 14-year-old males at the highest risk to engage

in this behavior.7

This is not only a concern in the United States.

The trend is being echoed across many different

countries, including in the United Kingdom, which

4 Robin McDowell, et al., AP Uncovers 17,000 Reports of Sexual

Assaults at Schools across US (May 1, 2017), available at

https://www.boston.com/news/national-news/2017/05/01/apuncovers-17000-reports-of-sexual-assaults-at-schools-acrossus/.

5 Rebecca Dillard, Kathryn Maguire-Jack, Kathryn Showalter,

Kathryn G. Wolf & Megan M. Letson, Abuse Disclosures of Youth

with Problem Sexualized Behaviors and Trauma Symptomology,

Child Abuse and Neglect 201-211 (2019).

6 Children’s Mercy Kansas City, Redcap database (2015-2023).

7 David Finkelhor & Anne Shattuck, Characteristics of Crimes

Against Juveniles, Crimes against Children Research Center

(2012).

- 10 published data this year that confirms that the

majority of their perpetrators are minors.8

Many people believe that children who sexually

abuse other children are nearly always victims of

sexual abuse themselves. This is not true. In some

cases, the offender has a history of sexual abuse. But

there are additional variables contributing to childon-child sexual assault. This includes having a

history of neglect, attachment trauma, or physical

abuse.9 Increasingly, a common theme front-line

responders are hearing from offenders is that

pornography has influenced them to sexually harm

other children.

Current research shows that adolescents who use

pornography are more likely to commit sexual

violence.10 Boys who regular view pornography are at

increased risk for sexual coercion and abuse.11 In

people aged 10-21, continuing exposure to violent

pornography tends to lead to sexual harassment,

8 National Analysis of Police-Recorded Child Sexual Abuse &

Exploitation (CSAE) Crimes Report (2024), available at

https://www.vkpp.org.uk/assets/Files/Publications/NationalAnalysis-of-police-recorded-CSAE-Crimes-Report-2022external.pdf.

9 National Center on the Sexual Behavior of Youth. Adolescents,

available at from https://www.ncsby.org/adolescents.

10 Jochen Peter & Patti M. Valkenburg, Adolescents and

Pornography: A Review of 20 Years of Research, The Journal of

Sex Research 509, 522 (2016); Michele L. Ybarra & Richard E.

Thompson, R, Predicting the Emergence of Sexual Violence in

Adolescence, Prevention Science: The Official Journal of the

Society for Prevention Research 403, 412 (2018).

11 Nicky Stanley, Christine Barter, Marsha Wood, Nadia

Aghtaie, Cath Larkins, Alba Lanau, A., & Carolina Overlien, C,

Pornography, Sexual Coercion and Abuse and Sexting in Young

People’s Intimate Relationships: A European Study, Journal of

Interpersonal Violence, 2919-2944 (2018).

- 11 sexual assault, coercive sex, attempted rape, and

rape.12 Finally, adolescents who view pornography

are more likely to have been sexually assaulted

themselves, and boys who regularly view

pornography are more likely to perpetrate sexual

assault.13 These statistics are sobering, but not

surprising, given the amount of degrading and violent

pornography readily available online.

Of course, behind the statistics are real people,

real stories, and real trauma. For example, Ms.

Olson’s team took care of a 4-year-old male who

disclosed a traumatic sexual assault to his parents

that happened at the hands of his 11-year-old sister.

She played pornography on her iPad during the

assault, so he could watch and learn what to do during

the next assault.

Her team also took care of a 12-year-old female

elementary student, who was brutally raped in a

parking lot by a 16-year-old male she had met online.

She did not think she had been assaulted, because in

her words she had been, “looking at and masturbating

to porn every single day” for the last 7 years. This

started when her parents gave her an iPad at the age

of 5, and she accidentally stumbled on porn. The

violent images had desensitized her to the point that

she could not recognize her own abuse.

Like this five-year-old girl, many kids stumble

upon porn accidently the first time they see it, and

what they are being exposed to is extremely violent

Ybarra, Predicting the Emergence of Sexual Violence in

Adolescence, at 412.

13 Kyriak Alexandraki, Vasileios Stavropoulos, Emma Anderson,

Mohammed Qasim Latifi, & Rapson Gomez, R, Adolescent

Pornography Use: A Systematic Literature Review of Research

Trends 2000-2017, Current Psychiatry Reviews 47-48 (2018).

12

- 12 and shockingly degrading. According to a 2020 study,

45% of the content on Pornhub depicts physical

aggression, with 97% of that violence directed at

women.14 The five most common types of aggression

seen in pornography are spanking, gagging, slapping,

hair pulling, and choking.15 Other popular themes

include debasing acts, including ejaculation on the

face.16 Simply viewing this content would be bad

enough. But children are particularly susceptible to

what they see in pornography. The more they view

pornography, the more they want to perform the

violent acts they are seeing.17

As the New York Times recently pointed out, many

teenagers are violently strangling each other during

sexual encounters and assaults. These teens are

copying what they see in pornography, without the

faintest idea that strangulation can cause brain

damage and even be lethal.18

Niki Fritz, Vinny Malik, Bryant Paul, & Yanyan Zhou, A

Descriptive Analysis of the Types, Targets, and Relative

Frequency of Aggression in Mainstream Pornography, Archives

of Sexual Behavior 3041-3053 (2020).

15 Fritz, A Descriptive Analysis of the Types, Targets, and

Relative Frequency of Aggression in Mainstream Pornography,

at 3041-3053.

16 Chyng Sun, Matthew B. Ezzell, & Olivia Kendall, Naked

Aggression: The Meaning and Practice of Ejaculation on a

Woman’s Face, Violence Against Women 1710-1729 (2017).

17 Paul J. Wright, Pornography and the Sexual Socialization of

Children: Current Knowledge and a Theoretical Future, Journal

of Children and Media 305-312 (2014).

18 Peggy Orenstein, The Troubling Trend in Teenage Sex, New

York

Times

(2024).

Available

at

https://www.nytimes.com/2024/04/12/opinion/choking-teen-sexbraindamage.html#:~:text=Herbenick’s%20surveys%20girls%20and

%20women,two%20and%20a%20half%20times.

14

- 13 It should not be surprising that so many kids are

acting out popular porn themes, because a recent

study estimated that two-thirds of adolescents in the

United Kingdom are currently addicted (not just

exposed) to online pornography (which includes high

rates of female addiction).19 Research confirms that

pornography is addictive, and the adolescent brain is

very vulnerable when it comes to seeing sexually

explicit material.20

The addictiveness of pornography is due in large

part to mirror neurons in the brain. According to Dr.

Sharon Cooper, a forensic pediatrician, “[i]magery

definitely affects children . . . when a child sees this

image of adult pornography the mirror neurons that

are in their brain will convince them that they are

actually experiencing what they are seeing.”21 That is

a frightening reality when one in three kids state they

have seen hardcore porn by the age of 12.22 When

children see pornography, these mirror neurons cause

children’s brains to become prematurely sexualized,

which can cause children to act out or want to imitate

Padraic Flanagan, Almost two-thirds of young people are

addicted to online porn, research suggests, Daily Mail (2024),

available

at

https://www.dailymail.co.uk/news/article12988023/thirds-young-people-addicted-onlinepornography.html.

20 See, e.g., M. Brand, Theories, prevention, and treatment of

pornography-use disorder, Suchttherapie, 20(1), (2019).

21 K. Jenson, Top two reasons why children’s brains are

vulnerable

to

pornography

(2012),

available

at

https://www.protectyoungminds.org/2012/06/01/top-tworeasons-why-childrens-brains-are-vulnerable-to-pornography.

22 Natahsa Singh, Talk to Your Kids About Porn, The Atlantic

(2018),

available

at

https://www.theatlantic.com/ideas/archive/2018/08/talking-tokids-about-porn/568744/.

19

- 14 what they are seeing.23 Ms. Olson and fellow sexual

assault nurse examiners experienced this reality

firsthand when they took care of a 13-year-old female

who had been raped by her 16-year-old brother. He

stated, “I was looking at porn in my room and couldn’t

stop thinking about it” as he began his assault.

Not only is pornography affecting the brains of

children, but it is also causing erectile dysfunction.

One Canadian study showed that nearly one-third of

16–21-year-olds

surveyed

reported

having

experienced erectile or sexual dysfunction related to

porn use.24

While statistics vary on the age at which children

are being exposed to pornography, a 2022 survey

showed that 73% of 13–17-year-olds had seen

pornography, 54% were 13 or younger when first

exposed, and 5% had first seen porn at 10 or

23 This understanding of mirror neurons is consistent with René

Girard’s theory of mimetic desire, which is particularly

instructive here. Why would a 14-year-old boy want to strangle,

anally penetrate, or otherwise sexually assault a young girl? The

answer, according to Girard, is mimetic desire—a desire

imitated from a model. In short, our most intimate desires are

copied from what we see around us. If you mostly observe

monogamous, loving, selfless relationships, you are more likely

to desire such a relationship for yourself. But if you watch

readily available online porn that is sadomasochistic, violent, or

otherwise perverse, it is more likely that you’ll be inclined to

desire and participate in these types of sexual acts yourself. See

generally René Girard, Deceit, Desire, and the Novel: Self and

Other in Literary Structure, The Johns Hopkins University Press

(1965); René Girad, Anorexia and Mimetic Desire, Michigan

State University Press (2013).

24 Lucia F. O’Sullivan, Lori A. Brotto, E. Sandra Byers, Jo Ann

Majerovich, Judith A. Wuest, Prevalence and Characteristics of

Sexual Functioning Among Sexually Experienced Middle to Late

Adolescents, Journal of Sexual Medicine 630-641 (2014).

- 15 younger.25 Even if parents or other guardians

diligently limit access to pornography at home, many

children have easy access to porn on school-issued

devices. A study done last year showed that one in

three children are accessing pornography at school

and almost half of the children surveyed are using

their school-issued device to do so.26 Ms. Olson is

aware of multiple stories of children showing each

other porn in class, on the bus, and at sleep overs,

making it nearly impossible for parents to monitor

what kids are seeing when they are not at home.

Ms. Olson is also aware of a high school in rural,

mid-America that monitored their students’ schoolissued laptops for one month. This school only had 140

students, and in one month there were 13,000 hits to

Pornhub. For perspective, that is every student going

to Pornhub, three times a day, every day, for 30 days

on their school-issued device. Clearly, education and

content filtering, alone, are not working.

A recent study in the United Kingdom showed that

when kids view porn, they think what they are seeing

is a realistic portrayal of sex. Many boys in the study

revealed that they wanted to imitate the behavior

they had seen while watching porn.27 If a large

percentage of pornography shows violence towards

25 Michael B. Robb & Supreet Mann, Teens and Pornography,

Common

Sense

Media

(2022),

available

at

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

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

26 Robb, Teens and Pornography.

27 “…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 behaviors of children and

young

people,

available

at

https://dera.ioe.ac.uk/id/eprint/27973/1/MDX%20NSPCC%20OC

C%20pornography%20report%20June%202016.pdf.

- 16 women, and pornography is setting the arousal

template for children, the downstream prognosis of

health, safety, and societal well-being is dire.

To give a concrete example, Ms. Olson and her

team treated a 14-year-old female who was gang

raped in a public bathroom by three 14-year-old

males. Some of her peers were outside of the

bathroom as the assault unfolded. Instead of her

peers intervening, they cheered and clapped when she

walked out of the bathroom, as if the gang rape was a

badge of honor. Why? Because in porn it is.

Further, her team saw a 10-year-old male who had

been brutally sexually assaulted by his 14-year-old

cousin. His cousin live-streamed the assault on

Instagram without a second thought. The 10-year-old

had genital injuries, because the assault was so

violent. Again, this assault is nearly unimaginable

absent the pervasive and corruptive influence of

online violent pornography.

Pornography is teaching kids that self-exploitation

is normal and even desirable. Many kids are so

desensitized to seeing naked bodies, it’s not a red flag

when strangers ask them for nudes online. In fact, it’s

a compliment, because someone thinks they are “hot.”

Ms. Olson’s team has taken care of teenagers who are

being sex trafficked through sites like OnlyFans, but

who fail to recognize that they are being exploited,

because the creation of pornography and the view of

the body as a mere consumer product has not only

become the norm, but the goal. Further unsettling is

the fact that many teen girls aspire to quit school

- 17 when they turn 18, start an OnlyFans account, and

live a supposed glamourous, wealthy lifestyle.28

Her team has seen 11- and 12-year-olds who have

exchanged hundreds of nude photos and videos in

exchange for things like gift cards or money. Under

many jurisdictions, this is considered sex trafficking

for minors. However, due to the normalization of

pornography, these children have no idea that they

are being exploited.

As technology rapidly changes, so too do the trends

with pornography exposure and exploitation. A recent

survey of teens revealed that 1 in 10 of them have

used artificial intelligence to generate nude

photographs of their classmates.29 The impact on both

the perpetrator and victim of these so-called

“deepfakes” cannot be overstated.

One of the most unsettling trends is females

asking for sexual violence during sexual encounters.

Teenage boys have recently disclosed that girls are

asking to be strangled and to be ejaculated on their

faces. Again, the imitation of online pornography

accounts for these changing—for the worse—sexual

mores. These young girls don’t want to be seen as

“boring.” In their words, it’s lame if you only want

“vanilla sex.”

The examples could go on and on, but by now the

point should be clear: contemporary online

Heidi Olson, Why So Many Teen Girls Are Planning on

Becoming OnlyFans Stars, Fight the New Drug (Oct. 17, 2023),

available

at

https://fightthenewdrug.org/many-teen-girlsplanning-on-becoming-onlyfans-stars/.

29 REPORT: 1 in 10 Minors Say Peers Have Used AI to Generate

Nudes of Other Kids, available at https://www.thorn.org/pressreleases/report-1-in-10-minors-say-peers-have-used-ai-togenerate-nudes-of-other-kids/.

28

- 18 pornography is fueling a public-health crises.

Arguably the most concerning aspect of this crises is

the role that pornography plays in child-on-child

sexual assault. Governments should combat this

crisis with every available constitutional means,

including, as Texas has done, age-verification laws.

II. H.B. 1181 SURVIVES CONSTITUTIONAL SCRUTINY.

A. The Speech At Issue Has No—Or at Most

Low—Constitutional Value.

Amicus agrees with Respondent that H.B. 1181

survives any level of constitutional scrutiny. See RB

30-38. But regardless of the level of scrutiny imposed,

amicus respectfully asks this Court to again affirm

that not all speech is created equal. Some speech has

more constitutional value than other speech. As noted

by Justice Stevens, this Court’s “First Amendment

decisions have created a rough hierarchy in the

constitutional protection of speech.” R.A.V. v. City of

St. Paul, 505 U.S. 377, 422 (1992) (Stevens, J.,

concurring). Under this Court’s jurisprudence, “[c]ore

political speech occupies the highest, most protected

position; commercial speech and nonobscene, sexually

explicit speech are regarded as a sort of second-class

expression; obscenity and fighting words receive the

least protection of all.” Id.30

Thus, non-obscene pornography or other sexually explicit

material, even if entitled to some First Amendment protection,

has less value and receives less protection than core speech. See,

e.g., F.C.C. v. Pacifica Found., 438 U.S. 726, 743 (1978)

(concluding that while certain scatological and sexual references

“may be protected, they surely lie at the periphery of First

Amendment concern”) (Stevens, J., plurality); Young v. Am. Mini

30

- 19 The “speech” at issue here—”sexual material

harmful to minors”—has at least two marks against

it. First, at best it is “nonobscene, sexually explicit

speech.” But in fact, much of the pornography

targeted by the law is not only obscene for minors but

obscene for adults as well.

Second, the law only targets commercial speech,

again, entitling the speech to less protection than core

First Amendment speech such as political, religious,

philosophical, or scientific speech.

Justice Scalia believed, consistent with this

Court’s decision in Ginzburg v. United States, “that

commercial entities which engage in the sordid

business of pandering by deliberately emphasizing

the sexually provocative aspects of their nonobscene

products, in order to catch the salaciously disposed,

engage in constitutionally unprotected behavior.”

Ashcroft v. Am. C.L. Union, 542 U.S. 656, 676 (2004)

(Scalia, J. concurring) (cleaned up) (quoting Ginzburg

v. United States, 383 U.S. 463, 467 (1966)); see also

United States v. Playboy Entertainment Group, Inc.,

529 U.S. 803, 831 (2000) (Scalia, J., dissenting); Los

Angeles v. Alameda Books, Inc., 535 U.S. 425, 443–

444 (2002) (Scalia, J., concurring); FW/PBS, Inc. v.

Dallas, 493 U.S. 215, 256–261(1990) (Scalia, J.,

Theatres, Inc., 427 U.S. 50, 70–71 (1976) (Stevens, J., plurality)

(“even though we recognize that the First Amendment will not

tolerate the total suppression of erotic materials that have some

arguably artistic value, it is manifest that society’s interest in

protecting this type of expression is of a wholly different, and

lesser, magnitude than the interest in untrammeled political

debate that inspired Voltaire’s immortal comment”); United

States v. X-Citement Video, Inc., 513 U.S. 64, 83–85 (1994)

(Scalia, J., dissenting) (describing pornography as “material of

minimal First Amendment concern”).

- 20 concurring in part and dissenting in part). There can

be little doubt that online pornography producers and

sellers, who use complex algorithms to intentionally

addict users,31 including children, to their content,

are engaged in the “sordid business of pandering . . .

to catch the salaciously disposed.” Accordingly, far

from being engaged in the height of First Amendment

protected speech—as Petitioners would have this

Court believe—they are arguably engaged in

constitutionally

unprotected

behavior—aka,

constitutionally valueless speech. See id. at 676

(“Since this business could, consistent with the First

Amendment, be banned entirely, COPA’s lesser

restrictions raise no constitutional concern.”) (Scalia,

J., dissenting).

But to the extent that Petitioners’ First

Amendment

rights

are

implicated,

amicus

respectfully asks this Court to judge those rights

against one of two tests: either 1) the Ginsburg

rational-basis test, or 2) a less-than-substantialburden-is-constitutional test. Under either test, H.B.

1181 passes muster.

B. H.B. 1181

Ginsburg.

Is

Constitutional

Under

Amicus will not rehash the arguments in

Respondent’s brief, and fellow amici, articulating why

the Ginsburg rational-basis test applies. But amicus

does wish to make two points about Ginsburg.

First, as noted supra, in the year 2024 there is

greater need to protect children from harmful sexual

31 See RB 3 (citing Amy Adler, Arousal by Algorithm, 109 Cornell

L. Rev. 787, 811 (2024)).

- 21 material, not less, compared to 1968. The “girlie”

magazines at issue in Ginsburg are almost wholesome

compared to the unlimited amounts of graphically

violent, sexually explicit, morally profane matter on

the internet. That pornography has moved from a

physical news rack to an ethereal “cloud” only

heightens the need to protect children from the near

omnipresence of pornography in today’s online world.

Second, this Court should reject Petitioners’ claim

that Ginsburg is inapposite because it allegedly “did

not place any restriction on adults’ access to sexual

materials; it did not, for example, require sellers to

conduct age verification for adult customers.”

Petitioners’ Brief (“PB”) 20. But the obvious import of

the law was to require age verification, lest a seller of

sexual material harmful to children wished to be

criminally prosecuted.

Further, Ginsburg, the bookseller, argued that

adult access to pornography was at stake, reasoning

that “[p]ragmatic consequences also challenge the

validity of the statute on the ground that such statute

restrains the distribution of literature to persons not

affected by the literature.” Ginsberg v. New York,

Appellant’s Brief 1967 WL 113634, at *18–19 (1967)

(emphasis added). Specifically, he argued that the

“policing problem would become an impossible

burden, leading the bookseller to abandon sale even

to adults” and thereby “adults would be deprived of

such literature, because it was not available for

distribution to adolescents.” Id.; see also id. at *7 (“In

addition, a practical reason renders this statute a

restraint on expression: the burden placed on a

bookseller, especially a busy one like Ginsberg, who

periodically receives new titles and stocks 200

different ones, sells stationery, cigarettes, candy,

- 22 lunch, and other similar products, to ascertain

whether the literature meets statutory clearance and

also ascertain at his peril, the age of the purchaser,

intimidates the vendor to the point where he would be

discouraged from distributing publications to

anyone.”).

These arguments are remarkably like the

arguments raised by Petitioners, who claim that H.B.

1181 burdens adults’ right to access sexual material,

not because of the seconds or minutes it takes to age

verify, but by secondary effects. Specifically,

Petitioners claim—without evidence—that “many

adults” will be reluctant to submit their personally

identifying information to age verify because of the

risk of “inadvertent disclosures, leaks, or hacks.” PB

26. Not only is this claim utterly speculative and

inconsistent with how age verification works (see

Brief of Amicus Curiae Age Verification Providers

Association), but it is like the arguments made by

Ginsburg—and rejected by this Court. Ginsburg’s

argument that the New York law restrained adult

access to protected First Amendment sexual content

by burdening the booksellers’ obligations, is the

mirror image of Petitioners’ argument that H.B. 1181

restrains adult access to protected First Amendment

sexual content by burdening the content-purchaser’s

obligations. In both instances, the seller of sexual

material is raising the speculative constitutional

rights of third-party purchasers. As in Ginsburg, this

Court should reject the argument, apply rationalbasis review, and uphold the constitutionality of the

law.

- 23 C. H.B. 1181 Imposes A Minimal Burden On

Adult Access To Protected Sexual

Material.

Alternatively, this Court could uphold H.B. 1181

on the ground that it imposes a minimal—and

perhaps de minimus—burden on adult access to

protected sexual material. Conspicuously absent from

Petitioners’ brief is any discussion of the scope of the

burden imposed by H.B. 1181 on adult access to

protected material. Again, Petitioners do not argue

that the only direct burden on adult access imposed

by H.B. 1181—the few seconds or minutes it takes to

age verify—is constitutionally meaningful. Instead,

Petitioners

base

their

constitutional-burden

argument solely on the secondary effects of the law,

claiming that adults without a government-issued

identification, and adults afraid of having their

personal information hacked, will not age verify and

thus will have more limited access to sexual material.

Petitioners have not attempted to quantify the scope

of the alleged burden, but instead appear to argue

that any burden on adult access to protected sexual

material triggers strict scrutiny. PB 23 (“Strict

scrutiny applies to laws that burden adults’ right to

access sexual expression that is constitutionally

protected for them, even if those laws are aimed at

preventing minors’ exposure to that content.”).

This Court should clarify that, in analyzing a law

aimed at protecting children from harmful sexual

material, the amount of burden on adult access to

protected speech matters. The greater the burden on

adult access to protected speech, the more scrutiny is

justified. The lesser the burden, the lesser the

scrutiny. Such an approach is consistent with the

- 24 notion, discussed supra, that not all Free Speech

rights are created equal. It is also consistent with the

indisputable grave harm that children suffer at the

hands of pornography, as discussed supra.

If, as here, the speech at issue is low value speech,

then this Court should require a party challenging the

law to prove a substantial burden on adult access to

the protected—but low value—speech to successfully

challenge the law. But if a law only poses a minimal

burden on adult access to low-value speech—as

here—then ordinarily the law should pass

constitutional muster. This approach is consistent

with one proposed by leading First Amendment

scholar, Professor Eugene Volokh.32

In short, the Court should reject Petitioners’ anyburden-on-adult-access-to-pornography-isunconstitutional argument. Instead, this Court

should adopt the anything-less-than-substantialburden-is-constitutional approach advanced here.

Under this approach, H.B. 1181 is clearly

constitutional.33

32 See Eugene Volokh, Freedom of Speech, Shielding Children,

and Transcending Balancing, 1997 Sup. Ct. Rev. 141, 195 (1997)

(arguing that the “best solution” to the challenge of protecting

children from sexually explicit content while also protecting

adults’ right to access protected material “is one that tolerates

certain less-than-substantial burdens on a narrow class of

speech, but that categorically invalidates any burdens that are

substantial”).

33 See Volokh,1997 Sup. Ct. Rev. at 183 (arguing that under this

approach, the law in Ginsburg would be upheld because the

“restriction bans only constitutionally valueless speech to

minors, and imposes only a slight burden on valuable

communications”).

- 25 CONCLUSION

For the foregoing reasons and the reasons stated

in Respondent’s brief, the Court should affirm the

decision of the Fifth Circuit and uphold the

constitutionality of H.B. 1181.

- 26 -

Respectfully submitted,

NELSON MULLINS RILEY

& SCARBOROUGH LLP

/s/ Jeffrey A. Wald

Jeffrey A. Wald

380 Knollwood Street, Suite 530

Winston-Salem, NC 27103

336-774-3335

jeffrey.wald@nelsonmullins.com

Counsel for Amicus Curiae