Free speech, in theory, is the right to unfettered self-expression. However, cries to protect the vulnerable give rise to free speech’s unjust limitations. The 2023 Texas House Bill 1181 (H.B. No. 1181) is a sobering reminder of this sort of abuse. 

H.B.No.1181 requires any website in which over a third of its content is considered “sexual material harmful to minors” to “verify that an individual attempting to access the material is 18 years of age or older.” The bill has, however, been subject to attack for the very reason any obscenity case is put under fire: its potential effect on protected speech. 

Circumscribing sexually explicit material has been problematic in both state and appellate courts due to the tension between protecting adults’ rights to viewership and concealing obscenity from non-consenting passersby, especially children. The widespread availability of pornography on the internet makes curtailing potential underaged viewership difficult. 

John Stuart Mill’s On Liberty rightly proclaimed that, “The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” In other words, imposing limits on speech is only warranted if the speech in question causes harm to others; otherwise, its regulation is unjust. Mill’s principle does not define ‘harm.’ Fortunately, the Supreme Court has provided guidance for what does constitute legal harm:  “imminent lawless action.” Since there is no direct connection between children’s viewing of pornography and sexual violence, any such attempt to restrict free speech through legislating regulations on pornography is inappropriate. One must turn to the Supreme Court decisions regarding obscenity cases for guidance. 

 Sexually-oriented media is the problem child of free speech. The Supreme Court has struggled to define the unprotected category and dissenters have questioned whether they even should. In Miller v. California, Justice William Douglas urged the court not to create overbroad legislation in an effort to define obscenity: “Obscenity—which even we cannot define with precision—is a hodge-podge. To send men to jail for violating standards they cannot understand, construe, and apply is a monstrous thing to do in a nation dedicated to fair trials and due process.” Even Justice Potter Stewart, who endorsed restricting some sexually explicit material, struggled to define the “hardcore pornography” he intended to rule on in Jacobellis v. Ohio, conceding, “I’ll know it when I see it.” Obscenity, apparently, is in the eye of the beholder—hardly a reliable legal threshold for free speech.

 Miller v. California finally limited ‘obscenity’ to mean “works which depict or describe sexual conduct,” and states were given basic guidelines to define that conduct for themselves. This definition still does not distinguish constitutionally-protected sexual content from  unprotected obscenity. However, the courts have felt so strongly about shielding non-consenting passersby from being subject to unwanted “bypasses [of] the brain for the groin” that the chilling effect it may have on protected speech seems worth the risk. Texas’ recent legislation is a product of a history of ill-defined boundaries between the protected and unprotected.  

Content-based restrictions are subject to strict scrutiny, meaning that the law must be both “narrowly tailored” and have a “compelling government interest” to justify its establishment. While Texas legislators may feel reasonably compelled to ban children from accessing online obscenity, the statute is not restrictive enough to justify itself due to its substantial loopholes and problematic setup which pose a de facto ban on protected content for a population of adults. Assuming that the age verification system works as intended every time, there are still easily accessible methods for minors to circumvent these barriers and reach the restricted content, such as downloading a Virtual Private Network (VPN) to set their device to a different state when attempting to log into a protected website in Texas. 

Ironically, the restriction may limit adults’ access to the content as much as it does childrens’. Fifteen percent of American adults (or 3.45 million people) do not have a government-issued photo ID, rendering them incapable of verifying their age and blocking their access to the protected material through honest means. Moreover, any adult would be reasonably reluctant to hand their information over to the state, especially under compulsion.

 The number of potentially impacted adults may seem like mere collateral damage in the hypothetical holy war that the Texas legislature intends to address with this bill. However, the question is whether speech can justifiably be restricted in this way—if any amount of people over the age of eighteen were burdened to the point of being discouraged from visiting the website, H.B.No. 1181 imposes unjust limits on personal expression. Mill’s limitations, applied to the First Amendment, assert that if legislation suppresses any speech that is not harmful, it is bad legislation. If hiding content from children also means barricading it from those with a right to see it, the material should not be blocked at all. Content that may be acceptable to consenting adults in the privacy of their homes could theoretically have damaging impacts on a child accidentally stumbling upon it. But Texas cannot be given the jurisdiction to restrict speech in this way if it sets a significant barrier between adults and content they have the right to access.

On September 20, 2024, Daniel Weitzner, Eron Tromer, and Sarah Scheffler, et al. submitted an amicus curiae brief in an effort to get H.B.No. 1181 overturned due to its substantial burden on adults accessing the material. Protecting free speech necessitates that any imposed limits be carefully tailored to protect the larger interest of maintaining First Amendment principles, and this bill simply does not. H.B.No.1181 is ill-considered and restricts speech with an unnecessarily broad brush—free expression is not something to be sacrificed on the altar of protecting the innocent from content that they may or may not see.