Last week, the Supreme Court heard arguments in one of the most important First Amendment cases of our time: TikTok v. Garland. Brought by TikTok and its users, the suit challenges a law passed last Congress that will functionally ban the platform in the U.S.starting January 19. If upheld, the law won’t just impact the more than 170 million Americans who use TikTok, it will also endanger the constitutional rights of every American to speak and receive information online.

As explained in the friend-of-the-court brief the ACLU and its partners filed with the Supreme Court, under the First Amendment the government must meet an extraordinarily high bar to ban an entire communications platform. To ban TikTok, the government must show that the ban is the only way to prevent serious, imminent harm to national security and that the ban limits no more speech than necessary to accomplish that purpose. The government has not come close to meeting that standard.

The law at issue gives the president unprecedented power to shut down Americans’ speech and access to information under the guise of protecting national security. It requires TikTok’s parent company, ByteDance, to sell the app or face a ban, while also granting the president broad authority to force divestiture and ban other communications platforms with corporate parents based in China.

The Department of Justice (DOJ) argues the law has two purposes: to limit the Chinese government’s ability to “covertly” manipulate what Americans see on TikTok, and to prevent the Chinese government from accessing Americans’ data. But, given the lack of evidence that TikTok is being exploited in either of these ways, neither satisfies the First Amendment high bar.

The government’s first justification boils down to fear of Chinese government propaganda. Indeed, more than 20 legislators justified their support for banning TikTok in these terms; citing the risk of foreign propaganda as well as other concerns about the content carried on TikTok, such as the content available to minors and the alleged suppression of pro-Ukraine videos.

As a general rule, the government can’t simply ban speech it dislikes. When Congress restricts speech based on its content or viewpoint, and especially when it bars speech in advance, it triggers the strictest test under the First Amendment. That test requires, among other things, real evidence of serious harm. But the DOJ has acknowledged there is no evidence that China is covertly manipulating TikTok’s content in the U.S.

Regardless, courts have long held that the government cannot keep Americans from accessing foreign propaganda. In 1965, the court struck down a law that required the postmaster general to detain “communist political propaganda,” which could be delivered to recipients only after they specifically requested it from the U.S. post office. In its decision, the court reasoned that even this “mere burden” was an unconstitutional effort to “control the flow of ideas to the public.”

Congress’s second justification for the law—to protect Americans’ data from the Chinese government—also fails under the First Amendment. While it is true that TikTok collects large amounts of user data, the government hasn’t pointed to any actual or imminent national security harm from this collection or explained how TikTok’s collection differs from that of countless other companies. But a ban would not effectively address Americans’ data security anyway, because the Chinese government, or other foreign entities, can purchase Americans’ personal data on the open market.

The law’s supporters have, at times, minimized the ban’s impact on the First Amendment, citing the mistaken belief that TikTok users can simply move to another platform. From a constitutional perspective, this is nonsense. The government can’t justify shutting down The Washington Post because readers can simply buy The New York Times instead. Others have likened the TikTok ban to existing restrictions on foreign ownership of radio licenses, arguing that if those rules are constitutional, so is this ban. That’s misleading. Those rules govern the allocation of a limited set of broadcast frequencies. The internet doesn’t have such constraints; it can accommodate an endless number of apps and platforms, offering Americans unlimited sources of information.

Banning TikTok is unprecedented, unconstitutional, and un-American. If the Supreme Court allows the government to shut down an entire platform on such a flimsy evidentiary record, it would set a disturbing precedent for future government restrictions on online speech. It would also increase the risk that sweeping invocations of “national security” will trump our constitutional rights.

The government does not get to control how Americans express themselves—on or offline—based on vague and hypothetical harms. This is the hallmark of authoritarian regimes, not the U.S.. The Supreme Court must block the ban and defend the freedoms at the heart of our democracy.

In almost 20 states across the country, access to some of the most popular sites on the internet is cordoned off because the government doesn’t like what they publish: sexual content. To get past the gate, users might have to show their driver’s license, offer up financial information, or submit to a biometric scan, putting personal and identifying data in the hands of private actors that aren’t always equipped to keep them safe. Even if users are willing to jump through these invasive, risky hoops, the sites may no longer function in the state. This is the new reality for many sites that publish sexual material online, including pornography, at least until the Supreme Court weighs in.

You might think this is a new issue, but it’s not. The Supreme Court already decided it, more than 20 years ago, in cases litigated comprehensively by the ACLU and others. The Court said then that websites cannot be compelled to verify the age of their users.

Yet here we are again, thanks to a trend of age-verification laws around the country, including in Texas. These laws chill adults from accessing content online that they have a First Amendment right to see. And though proponents claim they protect minors, they don’t: Texas’ law, for instance, leaves precisely the same sexual content unregulated on search engines and social media platforms, and stands to push kids into darker corners of the internet. Such laws also degrade privacy and anonymity and threaten the free and open internet for everyone, regardless of age.

The ACLU has always defended people’s right to access information, including sexual content, and pushes back against government regulations of speech that the government doesn’t like. That’s why we’re joining the law firm Quinn Emanuel Urquhart & Sullivan and the ACLU of Texas at the Supreme Court on January 15 to demonstrate that Texas’s age-verification law, HB 1181, demands rigorous scrutiny and is unconstitutional. Below, we break down how Texas’s misguided attempt to child-proof the internet threatens all of our civil liberties.

Texas’s HB 1181 became law in 2023. It requires all websites with “over one-third sexual material harmful to minors” to use “reasonable age verification methods” to determine if their visitors are over the age of 18. As defined by the law, those methods must rely on a government-issued ID, like a driver’s license, digital ID–which Texas does not have–or transactional data, like “records from mortgage, education, and employment entities.”

“Sexual material harmful to minors” is a broad category encompassing anything that an average person would consider too sexual and too devoid of value for anyone under 18–whether they’re a toddler or a teenager.

As long as one-third of the content on a site qualifies, it doesn’t matter how political, educational, or otherwise valuable the rest of the site is. It’s like prohibiting minors from entering an entire bookstore or movie theater just because it carries adult books or shows R-rated movies. The law even puts educational websites that include sex ed materials or information about LGBTQ identities at risk.

The law also requires covered sites to prominently display “sexual materials health warnings” penned by the Texas legislature, including the unscientific statement that pornography “is proven to harm human brain development, desensitizes brain reward circuits, increases conditioned responses, and weakens brain function.” (This requirement is currently enjoined as a result of the lower court rulings.)

Texas has been allowed to implement most of the law, except for the health warnings. Websites that violate the law will be met with fines of up to $10,000 per day. And if a site allows a minor to access any prohibited sexual material, they can be fined an additional $250,000. Pornhub, one of the world’s most-visited websites, has stopped operating completely in Texas because of the burdensome requirements.

The law does very little to protect kids, but it does threaten all of our First Amendment rights, regardless of age. It reflects the government’s distaste for specific topics and messages–those about sex–and so it has to pass a very strict test to satisfy the First Amendment. The government argues that the law just has to be reasonable since its goal is to protect kids, but accepting that argument could open the door to all manner of speech regulation. Pornography is often the canary in the coalmine when it comes to protecting free speech.

While proponents of age-verification laws liken them to showing your ID before buying pornography in person, the reality of online age verification is much more invasive. In the physical world, age-gating is easy: To comply with laws that make it illegal to sell pornography to minors, employees can just see that a person is old enough to buy it, or they can glance at the person’s birthday on their ID. The online version of this process is far more burdensome, time-consuming, and risky.

Uploading an ID, entering bank account information, or submitting to facial recognition technology specifically to access sexual content will make most people think twice, particularly when it means potentially creating a record of online activity that reveals our sexual preferences, interests, and questions. Laws like Texas’s put adults one data breach away from having their sensitive information exposed to marketing companies, private actors, and even the government. Importantly, users who don’t have the right proof-of-age, or who are improperly identified as minors, may be blocked from seeing the content altogether.

If Texas required people to prove their age before, say, reading Shakespeare, there would be no question that it would be violating the First Amendment. That this case is about sexual speech doesn’t change that.

Forcing people to identify themselves to access information online threatens the internet’s very spirit, and it compromises our rights to privacy and free speech without preventing children from accessing porn. In an age marked by data breaches and digital surveillance, linking your identity to your browsing history will inevitably discourage speech—and if that is deemed okay for sexual content, it could keep spreading to any number of other topics or mediums. Several states have already passed similar laws restricting access to social media for minors, and if those regulations continue to pass, the future of the internet looks a lot more fenced in.

Defining sexual material that is “harmful” to minors — and even what counts as “obscene” for adults — is notoriously difficult to do. That vagueness is also easy to abuse, including to cut kids off from important information. Over the years, everything from books with LGBTQ characters to reproductive health information have been mislabeled by some as “obscene” and dangerous for minors to consume. Texas’s law, and others like it, could make it easier to keep kids away from educational content–and they would do it without actually blocking kids from seeing pornography.

That’s because, in light of the law's threshold and exemptions, it doesn’t even reach social media and search engines–the places where minors are most likely to encounter explicit content. The law explicitly exempts search engines, and its one-third threshold means that most major social media platforms aren’t covered by it, even if they host comparable or even identical content to Pornhub.

In addition, this law could push kids towards websites that do not comply with U.S. law and may host more extreme content. As the International Centre for Missing and Exploited Children wrote in their amicus brief, this is how laws like HB 1181 “expose minors to separate risks, such as malware, trafficking, and predation.”

And it's worth noting, as National Coalition Against Censorship does in its amicus brief, that minors aren't monoliths. A teenager may well benefit from seeing content deemed inappropriate for a toddler, including in Texas, where the legal age of consent is 17. This law could make it so that it’s legal for some minors to have sex in Texas, but not to learn about it online.

This isn’t a new issue. The ACLU and others litigated this exact same question–whether the government can make a website liable for publishing sexual content without first verifying the age of visitors–in the late ‘90s and 2000s, and we won.

In Reno v. ACLU, the ACLU challenged a provision of the Communications Decency Act that criminalized publishing “indecent” speech online if it was viewable by a minor. In its 1997 decision, the Supreme Court held that the provision "threaten[ed] to torch a large segment of the internet community” by placing the “theoretical but unproven benefit of censorship” above the constitutionally-guaranteed rights of adults.

In 2004, in Ashcroft v. ACLU, the Supreme Court struck down the Child Online Protection Act (COPA) which, among other things, made it a crime to knowingly post “harmful to minors” content online without verifying the age of those trying to access it. The Court concluded that COPA, too, was likely unconstitutional because the government could achieve its child-protection goals without burdening the rights of adults.

These cases followed decades of Supreme Court opinions protecting adults’ access to sexually explicit content even when the government argued restrictions were required to protect kids–in everything from drive-in movies to cable TV to phone messages.

Today the ACLU and our legal partners are building on this precedent to urge the Court to continue to protect our First Amendment rights online. More than two decades of precedent are at stake in Free Speech Coalition v. Paxton. And there are other things at stake, too — a free and open internet and the future of speech both online and off.