Supreme Court wrestles with Texas age-verification requirement for pornography websites
Washington — The Supreme Court on Wednesday grappled with states' efforts to require pornography websites to verify their visitors' ages amid a surge of laws that proponents say are aimed at protecting children from accessing sexual content on the internet.
The requirement at the center of the case was enacted by Texas in 2023 as part of a wave of similar measures that have been passed in 18 other states. Under Texas' law, a website must use "reasonable age verification methods" to confirm visitors are at least 18 years old.
Entities must comply with the law if more than one-third of its web content is "sexual material harmful to minors," which is considered to be content that is prurient, offensive and without value to minors. Covered companies have to verify users' ages through digital identification or a government-issued ID.
Violators of the age-verification requirement face civil penalties of up to $10,000 per day, or fines of up to $250,000 if a violation leads to a minor accessing sexual material. Internet service providers, search engines and social media companies are effectively exempt from the law.
During more than two hours of arguments, the justices seemed to agree that the government has an interest in restricting minors' access to harmful sexual material. Justice Amy Coney Barrett, who has young children, acknowledged that advancements in technology have made it easier for kids to access pornography through gaming systems, tablets and smart phones. Chief Justice John Roberts, too, said technological access to pornography has "exploded," and there has been a "dramatic change" in how it can be accessed.
But the justices also expressed concern that age-verification laws like those enacted in 19 states burden adults' access to content they are legally allowed to consume and could lead to more regulations based on content.
Derek Shaffer, who argued on behalf of a trade group representing the adult entertainment industry, said Texas' law is the worst among those that have been passed in recent years and called the state a "hostile regulator."
The case arrived at the Supreme Court after a federal district court granted a preliminary injunction blocking Texas' age-verification requirement. The U.S. Court of Appeals for the 5th Circuit then froze that decision, allowing the law to take effect. The Supreme Court in April declined to temporarily block enforcement of the law, but agreed to take up the legal battle months later.
Challengers to the age-verification measure — a group of companies that operate pornography website and the Free Speech Coalition, the trade group — are asking the Supreme Court to toss out the 5th Circuit's ruling and restore the district court's injunction. They argued the measure violates the First Amendment because it burdens adults' access to protected speech.
The posture of the case was an issue raised by several members of the court, and particularly what would happen if they wiped clean the 5th Circuit's decision. The question before the high court is whether the 5th Circuit applied the correct standard of judicial review when it evaluated Texas' age-verification law.
The appeals court applied the least-stringent level of review, known as rational-basis review. Using that standard, the 5th Circuit said the law survives because of evidence showing "the sort of damage that access to pornography does to children." But the law's challengers and the Biden administration argue that the appeals court should've applied the most demanding level, strict scrutiny, because it impedes adults' access to constitutionally protected speech.
Rational-basis review requires laws to serve a legitimate governmental purpose and be reasonably related to that purpose. Under scrutiny scrutiny, however, the government bears the burden of showing that a law is narrowly tailored to serve a "compelling government interest."
"This case matters because it's about how the government can treat speech it doesn't like, and pornography is often the canary in the coal mine for free speech. And it also matters because it's about the future of free speech online," Vera Eidelman, a lawyer with the ACLU, said in a press call.
Opponents of the Texas law argue that if it is allowed to stand, it could have a chilling effect on adult visitors to regulated websites. Additionally, it could open users' to privacy and security risks like data breaches, which don't arise when having an ID checked in-person, they argued in court filings.
Already, Pornhub, one of the largest adult content websites, blocked access in Texas last year and did the same in Florida at the start of this year after its own age-verification law took effect.
"When an adult site tries to do age verification, most people coming to that site refuse to do a face scan, biometrics, ID upload, whatever it is. There's a huge chilling effect. People don't want to do it," said Mike Stabile, director of public policy for the Free Speech Coalition.
The trade group argued in court papers that Texas could have employed a less-restrictive way of protecting children from sexual material: content-filtering software, which the Supreme Court backed in a 2004 decision blocking the federal Child Online Protection Act. Additionally, they said the law regulates more speech than is necessary, since it applies to an entire website if more than one-third of its content is considered sexual material harmful to minors, and sweeps in material like romance novels and R-rated movies.
For example, they said, "a website that contains 65% core political speech and 35% sexually suggestive content would be 100% subject to H.B. 1181's restrictions. That is paradigmatic overinclusivity."
But the law is also underinclusive since search engines and social media sites do not have to comply with age-verification requirements, even though minors can access the content there that Texas is trying to shield them from, the Free Speech Coalition argued.
But conservative members of the court said the landscape has changed considerably since the court's 2004 decision and content-filtering has become less effective at keeping minors from accessing sexual material.
"We're in an entirely different world," Justice Clarence Thomas said.
The Biden administration argued the law is subject to the most demanding form of judicial scrutiny and urged the Supreme Court to toss out the 5th Circuit's decision and send the case back to the appeals court to apply strict scrutiny.
But in doing so, the Supreme Court should clarify that Congress and states can adopt appropriately tailored measures to keep children from accessing harmful sexual content online, Brian Fletcher, principal deputy solicitor general, told the justices.
Meanwhile, Texas Solicitor General Aaron Nielson, who argued for the state, said its age-verification requirement is "simple" and "safe."
He wrote in a filing that state officials were responding to a public health crisis sparked by kids' easy access to "hardcore pornography" through smartphones and other devices when they enacted the restriction.
The age-veritification requirements, he said, "protects children from that which is obscene by [adults'] standards, by requiring the purveyors to check whether their viewers are children — leaving adults able to access pornography by engaging in a process that they must complete potentially only once and that applies equally to viewing pornography, buying wine, or renting a car."
Backing Texas in the dispute is a group of 24 states, officials from which are urging the Supreme Court to uphold the lower court's decision.
The states wrote in a friend-of-the-court brief that age-verification laws are a routine exercise of their authority to protect children from being exposed to sexual violence and explicit images. They noted that most online pornography is not constitutionally protected, as it is considered obscene to minors and adults under a Supreme Court standard set in 1973.
"Texas's age-verification law effectuates the state's deeply important interest in protecting minors from the psychological, physical, and social harms wrought by the hardcore internet pornography petitioners purvey — an interest all agree is compelling, and that this court should hesitate to override," the states, led by the attorneys general of Ohio and Indiana, wrote.
A decision from the Supreme Court is expected by the end of June 2025.