Madi grew up in a religious home, blessed with attentive parents who took the dangers of technology seriously. They installed filters on her devices and required her to hand in her phone every night. Yet, when she was thirteen, she encountered pornography for the first time through her social media feed. She probed further, finding ways around the parental controls. Before long, she was in the throes of a porn addiction that lasted for five years.
Madi’s story is hardly unique. It is the story of millions of American children, and of millions of American adults who encountered porn in adolescence and have carried the burdens of addiction into marriages, jobs, and churches—often with disastrous effects. Many stories have grimmer endings, observable in rising teen suicide rates, as boys are caught in sextortion scams and girls become targets of revenge porn and deepfakes. Pedophiles use social media to groom adolescents with exposure to pornography, and for some young people, saturated in porn from elementary school onward, OnlyFans looks like a promising career path.
Now nineteen and free of her addiction, Madi tells her story in order to help parents understand the prevalence of porn on the internet: “Kids are seeing [porn] if they’re on social media or have any internet access; there is almost no way that they are not seeing pornography at least once a week, [even] once a day.”
Though awareness of this problem is increasing, for the last twenty years lawmakers have done little about it, chastened by a pair of devastating Supreme Court rulings in 1997 and 2004, which placed the rights of pornographers above those of children. Though the Court recognized that the government had a compelling interest in protecting children from exposure to pornography, it decided that the “the least restrictive means” to do so was to leave it to parents to employ porn filters. The ensuing quarter-century-long experiment on the most vulnerable members of society, with portals to pornography multiplying through smartphones, school-issued Chromebooks, and social media apps, has been an unmitigated disaster.
Legislators have finally begun to push back. Several states have passed laws that seek to bring the internet in line with real life: If you can’t enter a brick-and-mortar strip club until age eighteen, neither can you enter a virtual one. The new laws rightly put the onus on porn websites, rather than parents, to age-gate their obscene content. In January, one of those laws, Texas’s HB 1181, will go before the Supreme Court, challenged by a porn industry consortium doing business as “The Free Speech Coalition” (Free Speech Coalition v. Paxton).
For conservatives, the case might seem a straightforward one, and indeed it is heartening to see how overwhelming (and often bipartisan) the legislative majorities in favor of these laws have been. Yet the pornographers have positioned themselves as champions of two familiar conservative priorities: free speech and “parents’ rights.” They argue that age-verification laws for porn sites will restrict the free speech of adults and limit parents’ rights to make decisions about what their children see.
Many of the amicus briefs in support of Texas tackled the free-speech argument, explaining that age verification for adult sites need not unduly burden adult speech and privacy online. But the porn industry’s “leave it to parents” appeal also demands scrutiny.
In the past few years, the “parents’ rights” movement has ramified in several directions. As parents, we have a right to say no to our kids’ wearing masks, attending CRT indoctrination at school, being forced to share a bathroom with a student of the opposite sex, or being subjected to “transgender healthcare” without our consent. But the principle has proved double-edged, as when a group of progressive parents challenged Florida’s ban on minors at drag shows. One venue primly insisted that it was committed to “respecting the rights of parents to decide what content is or is not appropriate for their own children.” Similarly, progressive groups have invoked parents’ rights against red-state bans on “transgender healthcare” for minors. If I want to be party to a double mastectomy for my daughter, who’s to stop me?
As with all “rights” discourse, parents’ rights is a slippery concept, once unmoored from an objective sense of the right. If we are not careful, conservatives will fall prey to an ideal of parents’ rights as a maximization of individual freedom, of the number of switches parents may flip when customizing their lives and those of their children, at the expense of the common good and the social fabric. If some parents seek for their children a sheltered tech-free homeschooling experience until age eighteen, great. If other parents choose a tablet at age two, a phone at age seven, the first porn exposure at age nine, and gender-transition hormones at age thirteen, who’s to contradict them?
The reality is that children’s welfare is not the concern of parents alone. Rather, as Joseph Doyle wrote in 1962, “The state has not only a right, but a duty, as parens patriae, to care for those citizens who cannot care for themselves. This includes not only orphans, but also those [children] who, while under the supervision of others, do not receive the minimum standards of care set by the state.” Among these minimum standards, we submit, is protection from pornography. The Court has already acknowledged that the protection of children from porn is a compelling state interest, and yet its leaving of protection solely to parents has meant in practice that the state does not ensure this standard of care. Free Speech Coalition v. Paxton, which raises again the possibility of the state’s help in protecting children from obscenity, thus provides a case study in the moral limits of markets and the partnership between parental and state authority.
We offer four arguments that, though especially germane to the current case, may guide conservative thinking more broadly concerning the intersection of parents’ rights and the state in regulating technology: 1) Digital technology inherently disempowers parents; 2) parental will does not always correspond to parental ability; 3) technologies pose collective action problems; 4) tasking parents alone with protection is a social injustice, as it leaves the most vulnerable children the least protected.
The maximalist understanding of parents’ rights—like the maximalist understanding of any rights—runs aground on its own contradictions, exposing the truth of Plato’s maxim that “extreme freedom leads to extreme slavery.” Imagine a world in which everything that was legal for adults was legal for children, but everything was also subject to parental veto. Parents could decide whether or not their kids attended school, drove motorcycles, smoked cigarettes, drank alcohol, frequented strip clubs, purchased firearms, or took prescription drugs. Children would be free to roam, exactly to the extent that their parents permitted.
A more brutal war of all against all is hard to imagine. In every generation, parents of teenagers have fought against their children’s desires to enjoy freedoms for which they were not ready. But at least society has traditionally confined these battles to a narrow front. For society has recognized that there are many experiences, products, and technologies that children should not be allowed to pursue—and some that even adults should not pursue, though adults may sometimes be left to the consequences of their own follies.
And conservatives recognize that the costs of certain “freedoms” are borne not only by the individual but by the community, which the state has a duty to protect. A dystopia of full access for all ages, gate-kept only by exhausted parents, is a scenario we have rightly rejected in the cases of guns, drugs, alcohol, gambling, or tobacco. But it is exactly what we have embraced in the case of the internet and digital technology.
During the Industrial Revolution, the household at least remained a relative sanctuary from technology’s disruptive effects on society. Indeed, to protect the household against destruction through child factory labor, legislators insisted that parents did not have the right to send their ten-year-olds to sweatshops, and that factory owners had no right to lure them there. Radio and television chipped away at the integrity of the household, but with devices expensive, channels few, and broadcasters governed by norms of decency (and FCC regulations), the new burden on parents was generally bearable.
Even the desktop computer with dial-up modem did not alter the balance of power dramatically. But after 2000, the changes came fast: broadband internet, cheap laptops, smartphones, tablets, social media. “Everybody’s getting one,” children told their parents, in the self-fulfilling logic of every consumer fad. But the smartphone fad was here to stay, and with it, a wholly different regime of political economy. The average age of first smartphone ownership is now ten years.
“Economy” comes from the Greek for “household law,” and in our pursuit of profit and limitless information, we subjected the household to a new law: the law of surveillance capitalism. Henceforth, market imperatives dictated that children would have presumptive access to a firehose of “content” from every quarter of the globe, so that their preferences could be molded first into cravings and then into addictions, to be tracked, marketed, and monetized.
Parents were assured that “parental controls” left them in control, but even the most dedicated parents found the technological ground shifting beneath their feet. Given the nonstop battles to protect their sixth-graders from body-shaming campaigns, deepfake sexting, gangbang videos, and “influencers” peddling self-harm, it is no wonder that we are facing an epidemic of parental burnout severe enough to warrant a surgeon general’s warning.
Most parents aren’t crazy. They know it’s not great for their twelve-year-olds to learn about sexuality from incest videos on Pornhub. And just as the market responds to the demand for porn, so it has responded to the demand for parental controls and content-filtering software. Parents today can, in theory, set up filters on their Wi-Fi routers, on their kids’ laptops, on their smartphones, and within individual apps. They can monitor their kids’ browsing, block known adult websites, or even use “whitelisting,” as we do in our homes—allowing access only to specific websites known to be safe.
This proliferation of options, however, is a response to the even more rapid proliferation of access points. In 2004, when the Supreme Court last considered the question of protecting kids from online porn, many children still accessed the internet through a family desktop computer with a dial-up modem. Today, the average home has multiple internet-connected devices: smart TVs, laptops, iPads, gaming consoles, and smartphones for every member of the family, not to mention school-issued devices. Each of these “smart” technologies may have hundreds of individual apps, many with their own in-app internet browsers, which means there may be thousands of points of entry to the internet in a single home. A minor using Snapchat, for instance, can reach Pornhub in just five clicks without ever leaving the app.
The abundance of portals requires several different parental control solutions, few of which are intuitive or wholly reliable. Apple’s Screen Time filter, one of the best, requires seventeen steps to set up properly, has been known to stop working without warning, and even when fully functional can be hacked by tech-savvy teens. Better-designed third-party parental control apps are barred from accessing and regulating many of the most popular—and dangerous—apps, such as Discord, Snapchat, and TikTok. And if a parent, recognizing that no one solution is comprehensive, tries to install more than one external control app on the same device, the apps will often conflict with one another.
Parents thus find themselves losing the arms race against Big Tech and Big Porn. This is dire, since children do not need to go looking for pornography; it finds them on social media. The porn industry has adopted the social media influencer model, with porn performers promoting their content on platforms such as TikTok, YouTube, X, Facebook, and Instagram, in order to entice users (many of them minors) to click through to their own sites.
When a child clicks a link to a porn site, the site’s “sophisticated algorithms are designed to ‘mousetrap’ users,” as one UK report explains, “surveying and manipulating their preferences and presenting them with ever more extreme content in order to keep them engaged.” This strategy works because, as the testimony of neuroscience has revealed, porn has a way of hacking the human brain, especially the adolescent brain, overwhelming its “reward” circuits with floods of dopamine, creating powerful feedback loops that leave the viewer hungry for more intense stimulation. The addictive properties of online porn rival those of powerful chemical substances. The World Health Organization now recognizes compulsive sexual behavior disorder (often induced by pornography) as a mental health disorder.
Pornography’s addictive properties raise the stakes. Not only are children ill equipped to make rational choices about whether to consume a product, but their developing brains are more likely than adult brains to become hooked, with lifelong consequences. Adults may abuse alcohol, tobacco, and porn (indeed, for porn, there is no good “use,” but the law cannot suppress every vice), but they are less likely to become addicted if the first exposure occurs after age eighteen, when their brains are more fully developed. And the addictive qualities of porn make a mockery of parental controls: Once a child has encountered porn for the first time (perhaps through a friend, or on a parent’s device, or before the parents realized they needed to put controls on the child’s device), his or her brain will be programmed to hunt for it again and again, so that any and every loophole or glitch is an opening to ongoing porn consumption.
Too often, portals to porn come in the form of friends. For many American children, the dark journey with pornography begins on the school bus, at recess, or even at youth group. Even when parents set up content-filtering regimes for their own families, they cannot control what other families in their communities are doing. With 95 percent of teens carrying around mini-computers in their pockets, it is all too easy for a peer with an unfiltered smartphone to expose another child to pornography. An Oxford Internet Institute study thus estimated that for a single child to be shielded from online pornography in any given year, at least seventeen households in his or her network (and possibly as many as seventy-seven) would need to be employing filters.
Tragically, many children’s first exposure to pornography comes from those whom the state has charged with their care and protection. Many schools mandate the use of school-issued iPads, laptops, or Chromebooks that have internet access and, often, inadequate protective software. School districts have confessed that even with well resourced IT departments, they struggle to maintain effective filters on school-issued devices. One survey of teens found that not only had 30 percent of teens viewed porn during the school day, but of those teens, 44 percent had viewed it on a school-issued device. Asking parents to put their faith in filters thus means defaulting to the lowest common denominator, with less vigilant households and hapless school administrators creating an environment of almost effortless access to pornography.
Our laws have long acknowledged the reality of collective action problems and the collective harms they produce. We do not leave it up to individual parents to decide when their kids are ready to drive, because even if most parents could be trusted to exercise caution and careful oversight, a handful of irresponsible underage drivers, left at liberty by lax parenting, would render the roads unsafe for everyone. Just so, as long as a handful of young adults are permitted to carry around gangbang videos in their backpacks and pockets, every child is at risk.
A society of mature, healthy, well adjusted children does not arise out of nowhere. It is not a free-market mechanism based on rational choice in which spontaneous orders naturally emerge. It requires immense social coordination and a shared commitment to expectations and norms. The best norms are those so obvious and deeply rooted as not to need codification in law. Once, we might have been able to count on unwritten norms to protect schoolchildren from hardcore pornography. Which of our grandparents imagined that you needed to specify such things? But today, the law must correct outdated legal precedents and rectify our civilizational abdication to a porn industry that is exploiting technological developments to recruit and addict ever more and younger users.
Collective problems require collective solutions. Children learn what is “normal” by watching one another. Today, too many think it is normal to watch porn over one another’s shoulders. We must use the law to support parents who want to protect their children from such poison but can’t do it on their own, and to correct and compensate for parents who shrug their shoulders.
Recall the Thucydidean maxim, “The strong do what they will, and the weak suffer what they must.” Only strong families with present, attentive, tech-savvy parents have a shot at shielding their children from pornography. Children growing up in homes with two working parents, too busy to man the Screen Time ramparts, or worse, in broken homes with an overstretched single parent, stand little chance. During the hearings for Texas’s HB 1181, one nonprofit testified to “a strong correlation between wealth and privilege and using filtering technologies. That is, well-heeled parents generally have the time and resources to use filters while low-income parents do not.”
The divide is evident already in technology use, as several studies document a pervasive socioeconomic disparity in screen time. Children from lower-income households have, on average, three more hours of screen time each day than their higher-income peers (7 hours and 32 minutes, compared to 4 hours and 21 minutes). This should not surprise us. Raising children is exhausting work, especially in a world that chastises parents for letting kids skateboard unsupervised around the neighborhood. For a working single mom, an iPad makes an awfully cheap babysitter. And since monitoring parental controls is its own part-time job, it’s no wonder that parents who are already working overtime may not be able to keep up.
The porn industry, like the purveyor of any addictive drug, also knows that children from poverty and broken homes are its softest target. Not only are they less likely to be protected by parents or strong social networks, they are less likely to have experienced healthy relationships and more likely to take porn’s mockery of reality at face value. They provide not only the greatest demand for the product but also, in time, its greatest supply, as young men and women are lured into the industry by its promise of quick money and cheap affirmation. It is strange that many observers, otherwise outspoken about social justice, have been silent about the links between pornography and poverty.
The costs of leaving children unprotected are too high for the state not to take action. We all recognize that in some extreme cases, parental neglect may be so severe as to justify the state’s assuming direct care for children. How much more is the state entitled to protect children proactively from the lasting harms of pornography?
A brief exposure, like Madi’s, may lead to years of painful addiction and the warping of a child’s understanding of sexuality. As Texas noted in its brief before the Supreme Court, more than half of boys think that porn depicts sexual reality, and girls who are exposed early to pornography are more likely to suffer sexual abuse, coercion, and aggression. Nurses, doctors, teachers, and principals are seeing children act out the sexual content they have consumed online. ERs are handling cases of four-to-eight-year-old girls who have been sexually assaulted by eleven- and twelve-year-old boys.
The costs, then, are borne not by individuals alone, but by society. The systemic exposure of our children to pornography is a matter of grave concern for the health of our republic. For decades, with abortion and increasingly with euthanasia, our society has sacrificed the bodies of the weakest and most vulnerable in order to maximize the pleasures and minimize the burdens of young adults. With pornography, we sacrifice the souls of fragile children to the same end.
“It takes a village to raise a child,” declared Hillary Clinton in 1996, to the mockery of conservatives. Better a village than a cyber-village populated with pimps. The digital ecosystem poses an urgent collective action problem, and we cannot ask parents to shoulder the full burden of bringing children safely to adulthood. Nor can we leave the children of less attentive parents unprotected. It is the responsibility of the state, as the parens patriae, to remove the most serious threats to children. Within a properly walled garden of childhood, parents should have the right and freedom to determine what kinds of plants to cultivate. We do them no favors by giving them the “right” to decide which wolves should roam there.
For too long, the legal regime surrounding pornography has left parents to fight alone against Big Tech and Big Porn. It has refused to recognize the exploitative behavior of these industries. But the government has a duty to aid parents in protecting minors from parties who mean them harm and from addictive substances and behaviors—and to protect those minors whose parents are unwilling or unable.
Laws like Texas’s HB 1181 are hardly a silver bullet. They won’t stop pornography from being distributed within social media sites, for instance. But this reality simply underscores the need for maximal legislative discretion in fighting the porn hydra. The perfect should not be the enemy of the good, and a transformation of the incentive structure is a very good start. To date, tech companies have feared prosecution for suppressing adult “speech” more than prosecution for allowing minors to view (or be featured in) pornography. If the Supreme Court upholds HB 1181, this can finally change.
Moreover, states that require pornography sites to age-verify send a message to society. A government that treats all content as presumptively available frames value judgments on pornography as a matter of mere consumer choice. It puts pornography in the same category as soft drinks. But porn, as research shows, is not digital sugar; it is digital fentanyl. A government that legally blocks pornography for children will put the moral burden where it belongs, telling producers: You have no right to show this to children.
Though age verification still leaves adults free to view pornography, it may also provoke a rethinking of the harms of pornography for all age groups, much as the age-restriction of tobacco did. The pornography industry knows this all too well. It is this prospect, not a newfound concern for “consumer privacy,” that explains the industry’s intense resistance to age verification. The hydra of pornography thrives in the darkness. Now is the time to haul it into the light.
Clare Morell and Brad Littlejohn are Fellows at the Ethics and Public Policy Center, and are both amici curiae in the case Free Speech Coalition v. Paxton.
