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The Supreme Court will hear oral arguments Wednesday over a Texas law that requires pornography websites to verify the ages of their visitors, a case over salacious content that might influence the power of Congress and states to regulate minors’ access to the internet.
In Free Speech Coalition et al. v. Paxton, a group of challengers are set to urge the justices to overturn the Texas law as an unconstitutional infringement on free speech rights of adults in Texas.
They argue in court filings that Texas’ effort to prevent minors from accessing sexual content online chills the rights of adults to access the online content they want, and requiring verification information exposes those adult visitors to potential identity theft, fraud and other risks.
The law, signed by Gov. Greg Abbott in 2023, requires that pornography websites verify the identity of their users through use of documentation like a government-issued ID, and imposes a $10,000 fine per violation or $250,000 fine if that involves a minor.
The law is currently in place in the state because of a ruling from the U.S. Court of Appeals for the 5th Circuit, and major pornographic websites such as Pornhub have announced they would no longer provide access in the state.
Eugene Volokh, a UCLA law professor who specializes in free speech issues, said a key issue in the case will be how the justices handle the 5th Circuit decision, which upheld the Texas law by relying on a 1960s case requiring that New York bookstores verify the age of their customers before selling adult material.
Using that case, the 5th Circuit applied a more lenient test that didn’t consider any potential chilling effect on adults’ access to sexual material online. Showing an ID to a store clerk is fundamentally different than providing it online — which opens up the dangers of identity theft or tracking of their browsing habits, the challengers argue.
Volokh said a more recent case, called Ashcroft v. ACLU, tossed a federal law imposing criminal penalties on any website that allowed minors to access obscene content.
In that case, the Supreme Court said less-restrictive measures like content-filtering software would be constitutional. “That decision would suggest that age verification requirements are unconstitutional on the internet,” Volokh said.
Texas has defended the law in court filings, arguing that requiring pornography websites to verify the age of their users can help protect minors from inadvertently accessing lurid images and videos.
“Texas has addressed only websites dedicated to pornography, has allowed them to comply by using common age-verification technology, and has not imposed criminal penalties. Such a modest but important law satisfies any level of scrutiny,” Texas’ brief said.
Sen. Mike Lee, R-Utah, emphasized those stakes in a court brief filed along with four other Republican Senators and 18 Republican House members urging the justices to uphold the Texas law.
“Congress and state governments have a critical role to play in protecting America’s youth from this ever-growing commercialization of sex through electronic devices,” the brief said.
The brief argued that the two decades since the Ashcroft decision showed the error in an “optimistic assumption” that content-filtering software could prevent minors from seeing pornography.
Upholding the Texas law “affords policymakers the breathing room they need to protect our nation’s children while preserving our First Amendment freedoms,” the lawmaker brief said.
That would also keep the door open for national legislation like a bill Lee introduced last Congress that would require age verification on any website hosting content “harmful to minors,” the brief said.
The Biden administration asked the justices to overturn the 5th Circuit decision, but not necessarily rule in favor of the law’s challengers. In its own brief, the Biden administration said the lower court used the wrong test in evaluating the law.
The justices should instead send the case back to the 5th Circuit, the Biden administration brief states, but “the Court should make clear that the First Amendment does not prohibit Congress and the States from adopting appropriately tailored measures to prevent children from accessing harmful sexual material on the Internet—potentially including age-verification requirements analogous to those that have long been applied to the distribution of such material in the physical world.”
In a press call earlier this month, an ACLU staff attorney said the Supreme Court’s decision in the case could ripple far beyond pornography. The ACLU represents the petitioners in the case, seeking to overturn the Texas law.
“This case matters because it’s about how the government can treat speech it doesn’t like, and pornography is often the canary in the coal mine for free speech, and it also matters because it’s about the future of free speech online,” Vera Eidelman said.
Eidelman pointed out that the Supreme Court’s opinion on the constitutionality of age restrictions could also impact ongoing efforts in the states and in Congress to regulate minors’ access to social media.
In their Supreme Court brief, the challengers argued the Texas law sweeps in any website that contains any “salacious material,” not just porn, and includes massive loopholes for social media websites and search engines.
Upholding the low standard used by the 5th Circuit could open the door to broader bans on sexual material, the challengers said. Using a higher standard, as the Supreme Court has done in the past “would not render states powerless to protect minors. It would merely require them to do so through a carefully tailored law.”
Volokh said that there are factors around pornography and “obscene” content in free speech cases that he thinks would limit the fallout of the justices’ decision in the Texas case.
“Any decision in this case is likely to be limited to porn,” Volokh said. “Even if restrictions on distributing porn to minors can be upheld then it may not apply to other material,” including the purported harms to minors from social media use.
Volokh also said the Supreme Court may focus on technicalities of the Texas law, such as how websites identify the age of their visitors, rather than issue a broader decision concerning free speech rights online.
Eric Chaffee, a law professor at Case Western Reserve University, said that while the justices have issued sweeping decisions changing gun rights, administrative law and other issues recently, “remaking the law in terms of free speech doesn’t seem to be a priority for this court.”
However, he pointed out that numerous conservative organizations and lawmakers, such as the members of Congress led by Lee, have weighed in could push the court in the other direction.
Chaffee said that he thinks the court will likely end up sending the case back down to the 5th Circuit with instructions to apply a more exacting legal test that requires the state to justify any burdens it places on the rights of people effected by the law.
“The protection of children is a compelling state interest, but the question is whether there is a more narrow way of achieving this particular goal,” Chaffee said.
