Supreme Court Takes On Texas Adult Websites Age Verification Restriction

WASHINGTON — The Supreme Court on Wednesday heard a challenge to a Texas law aimed at preventing young people from accessing pornographic content online, with the justices expressing principled support for government action on the issue .

The 2023 law aims to restrict minors’ access to sexual material, but a challenge from a pornography industry group called the Free Speech Coalition says it violates the free speech rights of adults who want to access the same content.

During oral arguments, several justices expressed concerns about how technological advances, including the rise of smartphones, have made it easier than ever for children to access pornography. This could mean that existing Supreme Court precedent on free speech restrictions affecting children might not be relevant, they suggested.

“We are in a totally different world,” Justice Clarence Thomas said.

“Technological access to pornography has obviously exploded,” Chief Justice John Roberts acknowledged.

Justice Amy Coney Barrett, who has school-age children, cited her own life to question the value of alternative measures to prevent minors from accessing adult material, such as content filters.

“I can say from personal experience that it’s hard to keep up,” she said.

The measure requires adult websites to verify the age of all users, typically by looking at government-issued IDs, such as driver’s licenses.

Supported by the American Civil Liberties Union, opponents say the law violates the Constitution’s First Amendment because it imposes a “content-based burden” on adults’ access to speech.

They cite a 2004 Supreme Court ruling that found a federal law also aimed at restricting access to pornography, called the Child Online Protection Act, was most likely unconstitutional.

Among the questions before the justices is whether the Texas law is subject to “strict scrutiny,” a mode of judicial review that requires judges to analyze whether a government action that infringes on the liberty expression serves a compelling interest and has been “narrowly tailored” to meet that purpose.

The justices have discussed this issue at length, with some suggesting that age verification laws should not be subject to strict scrutiny but instead could be enforced under less strict standards.

But if the court finds that strict scrutiny should apply, it will likely send the case back to the lower courts for further review, because the 5th U.S. Circuit Court of Appeals, in its ruling in favor of the The State has not adopted this approach.

Whatever the court does, it seems likely that the law will remain in effect as long as the litigation continues.

It is also possible that Texas law will be followed even if the stricter standard is applied.

Texas relies in part on Supreme Court precedent — a 1968 decision that approved states’ power to prevent minors from accessing material deemed harmful to them.

In the new case, a federal judge ruled that the provision at issue was problematic because it did not simply limit access to minors.

The New Orleans-based Fifth U.S. Circuit Court of Appeals later agreed with Texas and declined to stay its ruling pending further review.

After the appeals court’s decision, several online pornography platforms, including Pornhub, blocked Texas people from accessing their sites, fearing the entry into force of this provision.

In April, the Supreme Court refused to block the law while protesters appealed.

The Biden administration filed a brief urging the court to send the case back to the appeals court so the law can be analyzed under strict scrutiny. Solicitor General Elizabeth Prelogar wrote that even under this standard, it would be possible to adopt an age verification requirement.