U.S. Supreme Court weighing constitutionality of Texas’ age-verification requirement for porn sites

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The U.S. Supreme Court on Wednesday appeared conflicted over whether a Texas law regulating adult entertainment websites infringes upon First Amendment free speech rights of adults seeking to access online pornography.

At issue is a 2023 Texas law requiring companies that operate websites where more than one-third of the material is harmful to minors to use “reasonable” age verification measures to ensure users are at least 18 years old. More than a dozen other states have passed similar laws, but Texas’ is the first to be looked at by the nation’s highest court. The U.S. Supreme Court’s decision could determine the fate of other states’ laws and set new precedent on how the government can impose age-related content regulations.

More than two hours of arguments on Wednesday concluded with a lawyer for adult entertainment websites contending that the internet is “free” and that it is incumbent upon parents, not websites, to screen out content inappropriate to their kids. Derek Shaffer, the attorney, also pointed out the particular features of Texas’ law compared to that of other states.

“This is the worst of the laws,” Shaffer said. “Texas is telling these targeted speakers that pornography is, among other things, contributing to prostitution. You have a hostile regulator who is saying to adults, ‘You should not be here.’”

Texas Attorney General Ken Paxton disputed that characterization during a press conference held outside of the U.S. Supreme Court following oral arguments. Paxton said the law was intended to protect children, and he expressed confidence the high court will rule in Texas' favor.

"We are not going to lose," Paxton said. "We are going to have the right to enforce this. I have no doubt about that."

State lawmakers passed House Bill 1181 in 2023 as part of a broader push to prevent children from being exposed to sexual materials. The law quickly drew scrutiny from free speech advocates and adult entertainment websites like Pornhub, who said the law would place undue burden on adults by forcing them to jump through hoops and endanger their privacy to access legal content. Critics also said the law was overly broad and could apply to websites providing information on reproductive rights resources, sexual education and LGBTQ+ literature. The law was initially blocked from going into effect after a federal U.S. District Court Judge found it unconstitutional.

The 5th U.S. Circuit Court of Appeals reversed that decision in November 2023, allowing the law to go into effect. The law carries fines of up to $10,000 per day that a website operates without age-verification requirements and up to an additional $250,000 if a minor accesses sexual material harmful to them. Pornhub has disabled access to Texans since last March, when the 5th Circuit formally vacated the lower court's ruling.

U.S. Supreme Court justices on Wednesday were asked to consider whether the appeals court applied proper legal reasoning in upholding age-verification. The Free Speech Coalition, a trade group representing adult entertainment websites, argued that the proper standard of review is strict scrutiny, the most stringent standard that is used in cases pertaining to fundamental rights such as freedom of speech. The 5th Circuit relied on rational basis review, a less strict review which considers only whether there’s a legitimate state interest for the law.

Texas’ solicitor general Aaron Nielson argued on behalf of the state and told justices that the law would satisfy any level of scrutiny.

“Age verification today is simple, safe and common,” Nielson said. “Even if heightened scrutiny applies, Texas easily satisfies it.”

The U.S. Supreme Court is expected to issue a decision on the case this summer. They appeared open to the idea of an age-verification requirement, but some justices seemed concerned about the possible First Amendment implications of a broad ruling. In two separate cases, the Supreme Court has previously ruled that laws aimed to prevent the distribution of obscene materials to minors were unconstitutional restrictions of free speech.

Texas' law requires people visiting porn websites to prove their age by either uploading government-issued identification or by using a"commercially reasonable method" such as bank information. The bill states that neither the website nor the party performing the verification can retain identifying information. And Nielson, arguing for the state, said biometric scans could confirm a person's age without them uploading personal information.

Critics of the law have raised privacy concerns and said the law could make it dangerous for adults to access legal content.

"Texas completely failed to appreciate the substantial privacy and security risks at issue, and continued to incorrectly suggest that online age verification – which requires millions of internet users to upload and submit identifying information – is no different than quick, one-on-one, in-person ID checks," Electronic Frontier Foundation attorney Lisa Femia said in a Wednesday statement. The Electronic Frontier Foundation filed an amicus brief arguing that Texas' law violates the First Amendment.

Shaffer, the lawyer representing the Free Speech Coalition, also pointed to a part of Texas’ law that requires websites to impose a health warning that states: “Pornography is potentially biologically addictive, is proven to harm human brain development, desensitizes brain reward circuits, increases conditioned responses, and weakens brain function."

The 5th Circuit overturned that piece of the legislation, ruling that it is unconstitutional compelled speech. Still, Shaffer argued that it demonstrates Texas’ intent to limit adults’ access to pornography.

“It brands websites with stigmatizing unscientific so-called health warnings that, despite being enjoined, evidence Texas’ intent to deter adults,” Shaffer said.