Washington – The Supreme Court will weigh in on Wednesday the states’ efforts to force pornography sites to verify visitors’ age. This comes amid an increase of laws intended to protect children from sexual content online.
Texas passed the requirement that is at the heart of this case in 2023, as part of an avalanche of similar laws in 18 other states. According to Texas law, websites must use “reasonable methods of age verification” in order to verify that visitors are over 18 years old.
Entities are required to comply with the law when more than one third of their web content is “sexual content harmful to minors.” This is content that is offensive, prurient and has no value for minors. Companies covered by the law must verify that users are over 18 years old using digital identification or government-issued ID.
Violations of the age verification requirement can result in civil penalties up to $10,000 a day or fines up to $250,000. The law does not apply to Internet service providers, social media companies or search engines.
A group of companies operating pornography sites and a trade association representing the adult entertainment industry sued Texas’ age verification law in federal district courts, claiming it violated the First Amendment by restricting adults’ access protected speech.
A federal judge blocked the enforcement of the measure after finding first that the provisions for age verification were subject to the strictest scrutiny. This is the highest level of judicial review. The court ruled that the age verification requirements did not meet this standard, as they were unclear and both too inclusive and underinclusive.
The federal appeals court then suspended the district court order and allowed the age-verification laws to go into effect. The U.S. Court of Appeals, 5th Circuit, said that the lower court had erred in applying strict scrutiny and should instead have evaluated the laws under the least stringent level. The 5th Circuit based its decision on evidence that “access to pornography causes children harm.”
The Supreme Court declined to block the law’s enforcement temporarily in April. The high court took up the legal battle months later.
In this case, the question is more procedural: did the lower court apply the wrong standard when assessing the constitutionality Texas’ law? The 5th Circuit examined the measure using what is called rational-basis scrutiny, which is the lowest level of judicial review that defers to the government. It found that it met that standard.
The law’s opponents and the Biden Administration argue that the court of appeals should have applied the strictest level, as it restricts adult’s access to constitutionally-protected speech.
The rational-based review is a process that requires that laws serve a legitimate government purpose and are reasonably related to this purpose. The government must prove that the law is tailored to meet a “compelling interest of the government” under scrutiny.
The Supreme Court can either uphold the decision of the lower court, leaving the age verification law in place, or it can rule that the 5th Circuit used the wrong standard and order them to review the law again under the correct standard of review.
This case is important because it shows how the government treats speech that it does not like. Pornography can be the canary in a coal mine when it comes to free speech. It’s also important because it concerns the future of online free speech,” Vera Eidelman said during a press conference.
The opponents of the Texas law claim that it will have a chilling impact on adult website visitors if allowed to remain in place. In court documents, the opponents argued that it would expose users to security and privacy risks, such as data breaches. These do not occur when IDs are checked in person.
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 website tries to verify age, the majority of people who visit that site will not do a biometric, ID upload or face scan. The chilling effect is huge. “People don’t want it,” said Mike Stabile. He is the director of public policy at the Free Speech Coalition.
In court documents, the trade group argued that Texas could’ve used a less restrictive way to protect children from sexual content: content-filtering programs. The Supreme Court supported this in its 2004 ruling blocking the federal Child Online Protection Act. They also said that the law restricts speech beyond what is needed, as it covers entire websites if they contain more than a third of sexual content harmful to minors. This includes material such as romance novels and R rated movies.
They said that, for example, “a site that contains 35% sexually suggestive material and 65% of core political speech would be subject to H.B. 1181’s restrictions. “That is a paradigmatic overinclusivity.”
The Free Speech Coalition said that the law was also not inclusive, as search engines and social media websites do not need to comply with age verification requirements, yet minors are able to access content on these sites, which Texas is trying to protect them from.
In a brief filed as a friend of the court, the Biden Administration argued that the law was subject to the strictest form of judicial review. Elizabeth Prelogar, the Solicitor-General, said that the Supreme Court should throw out the 5th Circuit decision and send the matter back to the appellate court for strict scrutiny.
Prelogar, however, said that in doing so the Supreme Court should “make clear that the First Amendment doesn’t prohibit Congress and the States adopting appropriately tailored steps to prevent children accessing harmful sexual materials on the Internet.”
The administration has not taken a position as to whether Texas’s law is constitutionally sound and can withstand a strict scrutiny. Brian Fletcher is scheduled to take part in Wednesday’s arguments.
In a document, Texas Attorney-General Aaron Nielson stated that the state was responding to a “public health crisis” sparked because of children’s easy access to “hardcore pornography” via smartphones and other devices.
He said that the age verification requirements “protect children from what is obscene to [adults] standards by requiring purveyors of pornography to check if their viewers are children – leaving adults to be able to view pornography through a process they may only have to complete once, and which applies equally to watching pornography, purchasing wine, or renting cars.”
A group of 24 state officials are backing Texas in this dispute, urging the Supreme Court’s ruling to be upheld.
In a brief for a friend of the court, states wrote that age verification laws are a routine use of their power to protect children against sexual violence and explicit pictures. The states noted that the majority of online pornography was not protected by constitutional law, since it is considered offensive to both minors and adults according to a Supreme Court standard established in 1973.
The states, led in part by the attorneys general from Ohio and Indiana wrote: “Texas’s age-verification laws effectuate the state’s deep and important interest to protect minors against the psychological, physical and social harms caused by the hardcore Internet pornography petitioners — an interest that all agree is compelling and this court should hesitate overriding.”
The Supreme Court will make a decision by the end June 2025.
