CNN
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A majority of the Supreme Court signaled Wednesday that Texas could be allowed to require some form of age verification for porn sites, but left open the possibility that deeper First Amendment questions remain unresolved immediately.
After two hours of oral arguments, the Court’s conservatives appeared to agree that states should be able to impose some sort of requirement to ensure that minors cannot easily access obscene material online, while that several judges expressed their concerns. about their decision spilling over and affecting other First Amendment rights.
The Texas law is similar to more than a dozen others across the country that require users to submit some form of proof of adult age. But the porn industry has challenged the law, saying it hinders adults’ ability to access protected content.
Although the court seemed skeptical of this argument, it also seemed It is likely that some of the thorniest First Amendment questions will be deferred to a lower court. The 5th U.S. Court of Appeals — as well as the Supreme Court itself, on an emergency basis — allowed the law to take effect last year.
A decision is expected by this summer.
Here are the key takeaways from Wednesday’s arguments:
Several conservatives on the court appeared to cast a chill over the adult entertainment industry’s proposed solution to the problem of minors accessing pornography online: content filtering software.
Such a solution, a lawyer representing the industry argued in court, would restrict minors’ access to explicit material without burdening adults’ access to the same material.
But at least three justices suggested that approach was insufficient, including Justice Amy Coney Barrett, who relied on personal experience when she told counsel that the software was far from infallible. Barrett has seven children.
“Children can obtain porn online through gaming systems, tablets, phones and computers. Let me just say that filtering content for all these different devices, I can say from personal experience, is difficult to keep up with,” she said.
“And I think the explosion of online pornography addiction has shown that content filtering doesn’t work,” Barrett added.
Justices Brett Kavanaugh and Samuel Alito also expressed doubt that content filtering is a feasible solution.
“Do you know many parents who are more tech-savvy than their 15-year-old children? Alito at one point asked the attorney representing the adult entertainment industry. ” Come on. Be real.”
This skepticism is important because part of the legal calculus the court may need to address is whether the Texas law was an appropriate response to the state’s interest in protecting minors from this material.
In a related case from 2004, the High Court said content filtering software “could be” an “effective” tool to address the problem when ruling against the Children’s Online Protection Act , a federal law that attempted to criminalize content on the “global network.” Web” which was harmful to minors.
Roberts and Alito: not your grandfather’s Playboy
Chief Justice John Roberts, in a series of compelling questions, repeatedly questioned the usefulness of decades-old precedents given that the nature of technology and pornography has changed. The issues at stake, he seemed to be saying, were not like the “girl’s magazines” that the court grappled with when applying the First Amendment’s broad protections in the 1960s.
It’s a theme raised by several conservative justices, comparing explicit videos on the Internet with more innocuous images once published by Playboy.
Are these changes, Roberts asked, the kind of thing that should force the court to reconsider how it thinks about applying the First Amendment in such cases?
“Technological access to pornography has obviously exploded,” Roberts said. “It was very difficult for 15-year-olds… to have access to the kinds of things that are available today at the push of a button. »
Is this something “we should at least consider,” Roberts asked, “as opposed to maintaining a structure that was accepted and established in an entirely different era?” »
This approach, if the court adopted it, would suggest a victory for Texas.
Derek Shaffer, representing the adult entertainment industry in the case, quickly responded to Roberts: “I respectfully urge you not to do so, Mr. Chief Justice. »
Alito invoked the old joke that people read Playboy for the articles, asking the adult industry lawyer whether Pornhub, a major porn site, offered trials to visitors.
“What percentage of the content is not obscene? » asked Alito. “Is it like the old Playboy – you have essays on that by…. Gore Vidal and William F. Buckley Jr.?
Although the justices appear to generally support the Texas law, how the court resolves the case could prove complicated.
The Supreme Court was specifically asked what level of “scrutiny” should be applied to the law. It is a legal term that normally decides a First Amendment case. If the highest level of control – known as “strict control” – applies, it becomes almost impossible for a law restricting protected free speech to stand. The lowest level of control, in this case “the rational basis,” almost always works in favor of the government.
It was not entirely clear, based on the arguments, whether the Supreme Court would make that decision. Some justices suggested they might be willing to let a lower court sort this out or seek a middle ground. Others seemed to suggest that the Texas law might be the rare speech ban that could survive scrutiny.
“Is the statement of First Amendment principle you are looking for at a general level: ‘Age verification requirements are permitted, provided they are not overly burdensome for adult access? ‘” Kavanaugh asked the Texas attorney general. Aaron Nielson.
Nielson agreed.
“Whatever you call it,” Kavanaugh said, “it can’t get too heavy.”
That prompted Justice Ketanji Brown Jackson, a liberal, to intervene.
“I think it’s important what you call,” Jackson said.
The adult entertainment industry appeared to have at least one ally on the high court: liberal Justice Sonia Sotomayor, who was quick to offer a lifeline to Shaffer, the lawyer representing the law’s challengers. , after facing a series of difficult questions from the court. rest of the bench.
Sotomayor noted that the court has repeatedly applied the highest level of legal review when deciding similar cases. If the court did so in this case, it would almost certainly result in the invalidation of Texas’ age verification law.
Both parties agreed that children should not have access to obscene material. The question is how courts analyze First Amendment issues when a law that prohibits pornography from children may also prevent it from adults who have a right to view it. Sotomayor noted that, in the past, the court has looked at adults whose First Amendment rights would be affected and applied the highest degree of legal oversight.
“We have at least five precedents that have directly answered this question,” the judge noted. “For us to apply anything else would be to overturn at least five precedents.”
CNN’s Tierney Sneed contributed to this report.
