Congress, Not States or the Supreme Court, Should Lead the Way in Balancing Children’s Online Safety and Access to Adult Content

As concerns over children’s online safety continue to sweep the nation, 19 states have passed or proposed laws requiring certain websites to verify users’ ages to prevent minors from accessing adult content online. In January, the Supreme Court heard oral arguments over one of these laws—Texas’ HB 1181—which highlighted the difficult balance between safeguarding children online and protecting adults’ First Amendment rights. Regardless of the Court’s decision, Congress needs to step in to prevent a patchwork of state age-verification laws and establish a child-flag system that would better balance adults' access to legal content versus children's access to material intended for mature audiences.

Texas’ law requires adult websites to verify users’ ages before granting access and applies to any website where more than one-third of the content is sexual and deemed “harmful to minors.” However, defining what constitutes “harmful to minors” is challenging. While some material—such as obscene or violent content—is clearly harmful, other content—like mental health information or LGBTQ+ content—might be considered harmful to one minor while benefitting another. The vague language is vulnerable to misuse and could lead to further legal challenges. Additionally, nearly every major social media platform hosts sexual content in some form, whether intentional and explicit, like adult pornography allowed on X and Reddit, or unintentional and suggestive content found on Instagram.

If the Supreme Court upholds the Texas law, more states may introduce age verification bills, each employing different methods. For example, in South Carolina, HB 3405, the “App Store Accountability Act,” would put the onus on app store providers to obtain verifiable parental consent before allowing a minor to download, purchase, or use apps from its app store. Users would only need to verify their age once per app store. While this approach is less burdensome for users and better protects privacy than other age verification systems, it does not address age verification for websites, a considerable gap.

In contrast, Utah’s SB 287, requires adult sites to verify their users’ identities using facial recognition technology and government-issued IDs, such as driver’s licenses or state IDs. This approach is the most privacy-invasive, as platforms may store sensitive information from users’ IDs, such as their full name, home address, and photograph. It also poses accessibility issues, as some adults lack government-issued IDs. Furthermore, Utah—along with other states pursuing similar legislation, like Arkansas and Ohio—is facing lawsuits over First Amendment concerns. Ironically, searches to implement virtual private networks (VPNs) spiked drastically in Utah once SB 287 came into effect, showing users—including minors—will find ways to circumvent this approach to age verification.

More broadly, the outcome of the Texas case could influence how state legislatures approach kids’ online safety legislation beyond the 19 states focusing on adult content specifically. For instance, states like Maryland and California use age-appropriate design codes, which require online services to implement default privacy and safety features. However, these codes often serve as another form of age verification. In contrast, states like Florida take a more restrictive approach, choosing to ban kids entirely from social media to prevent them from accessing online content altogether.

At the federal level, policymakers have mirrored these approaches with laws like the Kids Online Safety Act or Kids Off Social Media Act. These bills would force users to verify their ages before accessing social media or could bar entire groups from using the platforms altogether. Similar to many state laws, both these bills try to arbitrarily determine what constitutes “harmful content” for children, further blurring the line between what is considered harmful for minors versus acceptable for adults.

An alternative approach to this tangled web of state age verification laws would be for Congress to establish a “child flag” system, requiring device makers and platforms hosting age-restricted content to implement this feature. Under this system, all users would be presumed adults unless marked as children, with platforms checking for this flag when accessing age-gated content. Users could designate an account as belonging to a child through their device’s operating system, preventing the download of age-restricted apps or access to age-gated websites unless the user meets the required age. This approach would be less burdensome for users and pose fewer privacy and security risks.

Congress should pass legislation to preempt the impending patchwork of state age verification laws and establish a standardized child-flag system, giving parents and guardians greater control over their children’s online safety. Platforms are increasingly caught in a tug-of-war between safeguarding adults' access to legal content and preventing children from viewing material intended for mature audiences. Congress is best positioned to ensure this balance is achieved, not individual states.