The U.S. Supreme Court seemed inclined on Jan. 15 to allow a Texas law requiring age verification to access porn websites to stand.
The court heard more than two hours of oral argument in Free Speech Coalition Inc. v. Paxton.
The petitioner, the Free Speech Coalition, describes itself as the “nonprofit non-partisan trade association for the adult industry.” The respondent, Ken Paxton, is the attorney general of Texas.
In August 2023, a federal district court temporarily blocked the age verification requirement, as well as a requirement that the affected websites post health hazard warnings about pornography use.
The U.S. Court of Appeals for the Fifth Circuit reversed in March 2024, upholding the law’s hazard warning mandate and overturning the lower court’s injunction against the verification provision.
The coalition argues that the Fifth Circuit erred when it held that the law needed only a “rational basis” instead of “heightened scrutiny” to pass constitutional muster. The two phrases refer to standards that courts use when reviewing laws that impose limits on speech.
In its petition, the coalition said the Supreme Court has held that if a law enacted to protect minors from sexually explicit content “also burdens adults’ access to constitutionally protected speech, the law can ‘withstand constitutional scrutiny’ only if it is ‘narrowly drawn … to serve those interests without unnecessarily interfering with First Amendment freedoms.”
The online age verification procedure required by the state law makes users identify themselves by presenting government-issued identification, and this creates a “‘substantial chilling effect’ by exposing adults to the ‘risk of inadvertent disclosures, leaks, or hacks,’” the petition states.
Users may be “more willing to pay to keep that information private,” and that information may be “targeted by identity thieves and extortionists,” according to the petition.
In a brief, Paxton said the coalition does “not dispute that if they were brick-and-mortar bookstores or sidewalk magazine stands, Ginsberg v. New York would permit Texas to require them to check the age of their customers before selling them pornography.”
In Ginsberg, the Supreme Court ruled in 1968 that even if the material is not deemed obscene, its marketing may still be regulated because it may be harmful to children.
Paxton said the coalition was basically arguing that because its members’ businesses are operated online, “the First Amendment allows them to provide access to nearly inexhaustible amounts of obscenity to any child with a smartphone.”
During oral argument on Jan. 15, Justice Clarence Thomas said the Ginsberg ruling, which allowed a state law to require magazine sellers to verify the age of prospective buyers, may not control this case.
“Ginsberg sounds simple, but in the tech cases we’ve had recently, we’re talking about hundreds of millions of members to certain sites—billions of visits, multi-billions, if not trillions of exchanges,” he said.
“How much of a burden is permissible on adults’ First Amendment rights?”
Justice Neil Gorsuch asked coalition attorney Derek Shaffer if there was “a compelling government interest in keeping obscene materials from minors.”
Shaffer answered, “yes, unequivocally.”
Thomas asked Shaffer, “can age verification ever be constitutional?”
Shaffer said, “the government should start with content filtering as a less restrictive alternative.”
The Supreme Court need not “close the door” on age verification, “but it would need to be tailored age verification” that is “different from what Texas’s law permits,” the lawyer said.
Chief Justice John Roberts said pornography has changed over the last 35 years.
Does this mean the court should revisit “the standard of scrutiny … as opposed to keeping a structure that was accepted and established in an entirely different era?” Roberts said.
Shaffer replied, “I’d respectfully urge you not to, Mr. Chief Justice.”
Justice Sonia Sotomayor said applying the highest level of scrutiny used in cases related to adult entertainment would likely lead to the Texas law being struck down.
“We have at least five precedents that have answered that question directly. … For us to apply anything else would be overturning at least five precedents,” she said.
Justice Amy Coney Barrett said voluntary screening measures by the porn industry aren’t effective.
“Kids can get online porn through gaming systems, tablets, phone, computers,” she said.
“Let me just say that content filtering for all those different devices, I can say from personal experience, is difficult to keep up with,” said Barrett, who is a mother of seven children.
“The explosion of addiction to online porn has shown that content filtering isn’t working.”
Texas Solicitor General Aaron Neilson said the coalition doesn’t dispute that its members’ websites “are not meant for children, that they harm children, and that children are watching.”
“Age verification today … is simple, safe, and common, including non-identifying means,” Neilson said.
“We’ve tried content filtering for decades, and the problem has only gotten worse.”
The Supreme Court is expected to rule on the case by the end of June.
