The War on Porn Regular Updates about the Assault on The Adult Industry
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When I got my start in the online sector of the adult entertainment business, back in the mid-nineties, there was no video streaming. Individual photos often took web users several minutes to download. And you hardly heard a peep from anyone suggesting that the fledgling industry needed to be reined in.
To be fair, many people were only vaguely aware of what was available on the internet at the time, let alone worried about what their kids might be looking for on there – and frankly, the web was so slow, using it exceeded the patience of a lot of kids, anyway.
Oh, how things have changed.
What evolved fastest, of course, was the technology underpinning the internet. As high-speed connectivity became the norm rather than the exception and video streaming capabilities increased year over year, online porn went from something enjoyed by a small subset of early adopters to a massive, multibillion dollar industry. Along with those changes in technology came ever louder calls for the online adult industry to be more tightly regulated – or regulated at all, in the still-early-internet days of the mid-nineties.
In the United States, Congress began cooking up proposals to prevent minors from accessing online porn. While these proposals enjoyed broad bipartisan support (within the legislature, at least), what they didn’t get was much support from the courts.
Early attempts to impose things like age verification requirements were slapped down by the courts, most notably in cases like Reno v. ACLU, decided in 1997. In Reno, the Supreme Court held that certain provisions of the Communications Decency Act of 1996 (“CDA”) violated the First Amendment. Specifically, the court found that the CDA’s “indecent transmission” and “patently offensive display” provisions trod upon the freedom of speech protected by the First Amendment.
What changed in 2025, as the Supreme Court again considered an age verification proposal, this time a state law passed in Texas (“HB 1181”), was in part the continued forward march of technology. But more crucially, what changed was the court’s disposition as to which “standard of review” ought to be applied.
In previous cases involving online age verification proposals, the court has applied “strict scrutiny,” a high bar that requires the government to show its actions (and laws) are “narrowly tailored” to further a “compelling government interest” and are the “least restrictive means” to further that interest.
In the case Free Speech Coalition v. Paxton, which the Supreme Court decided in June, the district court had applied strict scrutiny and found that HB 1181 failed to satisfy the standard. When the case reached the Supreme Court, however, the majority decided the court had erred in applying strict scrutiny and that the correct standard to apply was “intermediate scrutiny,” which sets the bar much lower for the government.
Writing for the majority, Justice Clarence Thomas asserted that HB 1181 has “only an incidental effect on protected speech.”
“The First Amendment leaves undisturbed States’ traditional power to prevent minors from accessing speech that is obscene from their perspective,” Thomas wrote. “That power includes the power to require proof of age before an individual can access such speech. It follows that no person – adult or child – has a First Amendment right to access such speech without first submitting proof of age.”
Since the law “simply requires adults to verify their age before they can access speech that is obscene to children,” Thomas found that HB 1181 “is therefore subject only to intermediate scrutiny, which it readily survives.”
The three justices who dissented from the majority’s position didn’t see things quite the same way, naturally. In her dissent, Justice Elena Kagan criticized the majority’s holding as “confused” and highlighted the ways in which it departed from the court’s previous rulings in similar cases.
“Cases raising that question have reached this Court on no fewer than four prior occasions – and we have given the same answer, consistent with general free speech principles, each and every time,” Kagan observed. “Under those principles, we apply strict scrutiny, a highly rigorous but not fatal form of constitutional review, to laws regulating protected speech based on its content. And laws like H. B. 1181 fit that description: They impede adults from viewing a class of speech protected for them (even though not for children) and defined by its content. So, when we have confronted those laws before, we have always asked the strict scrutiny question: Is the law the least restrictive means of achieving a compelling state interest? There is no reason to change course.”
Whether there was reason to change course or not, surely now the course has been changed. Make no mistake, laws like HB 1181 are here to stay – and they will be followed by other measures designed to restrict access to sexually-explicit materials online, as well as regulation which goes much further and sweeps in an even broader range of controversial content.
The old cliché about the “canary in the coal mine” has often been applied to pornography in the context of free speech discussions. Even those who don’t like or approve of porn have often warned that crackdowns on sexually explicit expression can presage attempts at regulating other forms of speech.
If indeed those of us who work in the adult industry are part of a sentinel species, the warning to our peers in the broader world of entertainment and self-expression could not be more clear, as we look out to 2026 and beyond: Here in the world of online porn canaries, we’re choking on this new regulatory push – and most likely, some of you other birds are going to be feeling short of breath too, soon enough.
