How do we protect kids from online harm? How do we keep the digital realm safe for the children and adolescents? And does restricting the access to adult content constitute a breach of freedom of expression and right to information? While there’s no defined logical deduction for arriving at a conclusion, lawsuits and discourses have brought spotlight on this matter.

In January this year, the Supreme Court of the United States heard arguments in the First Amendment Case, i.e. Free Speech Coalition et al. vs. Paxton. Free Speech Coalition is a trade group in the adult industry which has joined hands with several other adult content firms, in addition to an anonymous content creator, to sue Texas. In question is a law that mandates age verification on websites that have at least one-third of its content deemed harmful to children – or basically sexual content as defined in the bill.

Which law is it?

This law primarily covers pornography websites, while exempting social media platforms and search engines. Anyone can guess that a child who wants to consume adult content may simply mark his or her age as above 18 on these websites. Therefore, the law requires the websites to implement methods by which users will be required to use government identification or private transaction data to authenticate their age as above 18. Any company that does not implement the measures and is found to have caused harm to a minor through its adult content will be held liable for damages.

What’s the debate about?

The debate is multifaceted. First, there are states such as Texas that do not offer digital driver license – something that can be used for age verification – and therefore, users will need to resort to measures implemented by third parties. There is an additional debate saying that disclaimers describing the potential harms of consuming adult content constitute compelled speech and may not be aligned with the principle of freedom of expression. In such a circumstance, should courts permit such laws that enforce a disclaimer on the websites? Content-based regulation of speech needs to be justified vis-à-vis the freedom of speech.

A counterpoint says that on rational basis, lower level of scrutiny and regulation does not infringe the right to speech, at least of the adults. Moreover, the government has a legitimate interest in protecting the children and therefore, if the government protects kids without affecting the right of speech of adults, saving minors from digital harm gains ground.

What are the contentions?

People are still debating how much of burden can be imposed on right of and access to free speech in the pursuit of protecting children. Future of online speech and access to information will be heavily influenced by any law in this regard. Moreover, there is no definition of what is meant by “one-third of the website” in the Texas law, and it may mean different things to different people. Laws in this regard will also affect how information of reproductive health, LGBTQ+, and sexual assault is accessed. Furthermore, what is appropriate for a 13-year-old may not be suitable for a 4-year-old, and therefore bringing all age groups under the same law may not be the best idea.

Some policymakers and experts suggest that age-defined laws may be insufficient and rather, device-based regulations can help better, as kids can be given different category of devices that do not allow a certain type of content – basically, adult content.

While the Texas court and the governments around the world are yet to arrive at a consensus on how kids can be protected from online harm, it continues to be a point of contention whether age-defined regulations on certain category of digital platforms constitute a violation against or safeguard for right to free speech.