Washington — Amid a proliferation of laws aimed at preventing children from accessing sexual content on the Internet, the Supreme Court on Wednesday grappled with state efforts to require pornography websites to verify the age of visitors.
The requirements at the center of the case were enacted in Texas in 2023 as part of similar measures passed in 18 other states. Texas law requires websites to use “reasonable age verification methods” to verify that visitors are 18 years of age or older.
Institutions must comply with the law if more than one-third of web content is “sexual material harmful to minors,” which is considered obscene, offensive and not of value to minors. The company must verify the user’s age through a digital ID or government-issued ID.
Anyone who violates the age verification requirement can face civil penalties of up to $10,000 per day, and fines of up to $250,000 if the violation results in a minor accessing sexually explicit 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 limiting minors’ access to harmful sexual material. Justice Amy Coney Barrett, who has young children, acknowledged that technological advances have made it easier for children to access pornography through gaming systems, tablets and smartphones. Chief Justice John Roberts also said there had been an “explosion” in technological approaches to pornography and a “dramatic change” in approaches.
But the justices also expressed concerns that age verification laws, like those enacted in 19 states, could burden adults’ access to content they can legally consume and lead to more regulation based on content.
Derek Shaffer, who made the argument on behalf of a trade group representing the adult entertainment industry, said the state’s law was the worst law passed in recent years and called the state a “hostile regulator.”
The case reached the Supreme Court after a federal district court issued a preliminary injunction blocking Texas’ age verification requirement. The U.S. Court of Appeals for the Fifth Circuit then froze the decision, allowing the law to take effect. Last April, the Supreme Court declined to temporarily block law enforcement but agreed: agreed to accept A legal battle a few months later.
Opponents of adult verification measures, including companies that run pornographic websites, the Freedom of the Press Coalition, and trade groups, are asking the Supreme Court to overrule the 5th Circuit ruling and reinstate the district court’s injunction. They argued that the bill violates the First Amendment because it burdens adults’ right to access protected speech.
The tone of the case was an issue raised by several members of the court, particularly what would happen if they wiped the Fifth Circuit’s decision cleanly. The question for the high court is whether the Fifth Circuit applied the correct standard of judicial review in evaluating Texas’ age verification law.
The appeals court applied the least stringent level of review, known as rational-basic review. Using this standard, the 5th Circuit said the law survived because evidence showed “the harm that access to pornography causes to children.” But opponents of the law and the Biden administration argue that the appeals court should have applied the toughest level of scrutiny. Because it impedes adults’ access to constitutionally protected speech.
Rational basis review requires that a law achieve a legitimate governmental purpose and be reasonably related to that purpose. But upon close scrutiny, the government bears the burden of proving that the law is narrowly tailored to serve a “compelling government interest.”
“This case is important because it’s about how governments can deal with speech they don’t like. Pornography is often the canary in the coal mine for free speech. It’s also important because it’s about the future of free speech online.” ACLU attorney Vera Eidelman said at a news conference.
Opponents of the Texas law argue that if left in place, it could have a chilling effect on adult visitors to regulated websites. It could also expose users to privacy and security risks, such as data breaches, that do not occur when verifying IDs in person, they argued in court papers.
Pornhub, already one of the largest adult content websites, was blocked in Texas last year. It was like that in Florida too. Earlier this year, after the Self-Verification of Age Act came into effect.
“If you try to verify age on an adult site, most people who come to that site will refuse to scan their face, biometrics, upload their ID, whatever. It has a huge chilling effect. People don’t want that,” he said. Mike Stabile, public policy director at the Free Speech Coalition.
The trade group argued in court papers that Texas could have adopted a less restrictive method to protect children from sexually explicit material: content filtering software. This supported the Supreme Court’s decision to block the federal Children’s Online Protection Act in 2004. They also said the law regulates more speech than necessary because it applies to entire websites if more than a third of the content is deemed sexually explicit and harmful to minors, and sweeps in material such as romance novels and R-rated movies.
For example, “a website that contains 65% core political speech and 35% sexual content would be 100% subject to HB 1181’s restrictions. This is classic overinclusivity,” they said.
But the Free Speech Coalition argued that the law is not comprehensive because search engines and social media sites are not required to comply with age verification requirements, even though minors can access content that Texas seeks to protect.
But conservative members of the court said things have changed significantly since the court’s decision in 2004 and that content filtering has become less effective in preventing minors from accessing sexual material.
“We are in a completely different world,” Judge Clarence Thomas said.
The Biden administration argued that the law is subject to the toughest form of judicial scrutiny and urged the Supreme Court to overrule the 5th Circuit and send the case back to the appeals court for rigorous scrutiny.
But to do so, the Supreme Court must make clear that Congress and states can adopt appropriately tailored measures to prevent children from accessing harmful sexual content online, Chief Solicitor General Brian Fletcher wrote for the justices. said to
Meanwhile, Texas Attorney General Aaron Nielsen, who argued for the state, called the age verification requirement “simple” and “secure.”
He wrote in the report that when state officials enacted the restrictions, they were responding to a public health crisis triggered by children’s easy access to “hardcore pornography” through smartphones and other devices.
He said the age verification requirement “protects children from pornography by (adult) standards by requiring vendors to verify that the viewer is a child. It ensures that adults can access pornography by engaging in procedures that adults must do.” .You can potentially only complete it once, and the same applies to watching pornography, buying wine, or renting a car.”
Twenty-four state governments supporting Texas in this dispute are urging the Supreme Court to uphold the lower court’s decision.
The state wrote in its attorney brief that age verification laws are a routine exercise of power to protect children from exposure to sexual assault and explicit images. They noted that most online pornography is considered pornographic for minors and adults under the 1973 Supreme Court standards and therefore not constitutionally protected.
“Texas’ age verification law serves the state’s very important interest in protecting minors from psychological, physical, and social harm caused by hardcore Internet pornography petitioners. It is an interest that everyone agrees, and this court is reluctant to ignore. “I have to do it.” It was written by state governments led by the attorneys general of Ohio and Indiana.
The Supreme Court’s ruling is expected to come out at the end of June 2025.
