States can make porn sites check IDs

Just minutes before the Supreme Court recessed for the summer, justices on Friday upheld a Texas law requiring pornography sites to verify users’ ages. The court’s 6-3 ruling concluded that state laws aimed at protecting children from obscenity do not violate the First Amendment.

“No person—adult or child—has a First Amendment right to access such speech without first submitting proof of age,” Justice Clarence Thomas wrote in the majority opinion in Free Speech Coalition, Inc. v. Paxton. “States have long used age-verification requirements to reconcile their interest in protecting children from sexual material with adults’ right to avail themselves of such material.”

Thomas added that Texas’ law “simply adapts this traditional approach to the digital age.”

Signed into law in June 2023, the Texas measure requires pornographic sites to verify users’ ages in an effort to protect children from viewing it. Texas Attorney General Ken Paxton compared the regulation to customer ID checks at brick-and-mortar “adult stores.”

The law requires websites with more than one-third of content that is “sexual material harmful to minors” to allow access only to users 18 and older. Users can either provide digital information to verify their identity, comply with a third-party verification system that uses government-issued identification, or utilize a “commercially reasonable method that relies on public or private transactional data to verify the age of an individual.”

The state can fine pornography sites up to $10,000 each day they operate without age verification, and it can levy an additional $250,000 against a site if a child views explicit content due to the lack of verification.

The Free Speech Coalition, a trade association for pornography producers, sued Texas over the law in August 2023, claiming the age verification requirement is invasive, burdensome, and in violation of the Constitution. It causes “adult users to incur severe privacy and security risks,” the group stated in its Supreme Court appeal.

While a federal judge sided with the producers in 2023, the 5th U.S. Circuit Court of Appeals reversed the decision later that year, allowing the law to take effect. The producers appealed to the Supreme Court in April 2024.

During oral arguments in January, the debate centered on whether the 5th Circuit incorrectly applied rational basis review of the law, which is deferential to governmental concerns, as opposed to a higher level of review called strict scrutiny.

Courts typically hold that laws curbing free speech need to pass strict scrutiny, meaning the law serves a compelling government interest in the least restrictive way possible.

In Friday’s ruling, the Supreme Court found that the law is constitutional on a middle ground of review, called intermediate scrutiny. Under this standard of review, the law must “advance important governmental interests unrelated to the suppression of free speech and … not burden substantially more speech than necessary to further those interests.”

Thomas wrote that ruling on strict scrutiny would “call into question” all formats of age-verification requirements, including in-person ones, while rational basis review does not account for the burden these verifications put on free speech.

Intermediate review allows states to protect minors from content while not overly burdening adults’ First Amendment rights, Thomas concluded. States need to have the ability to regulate the sites because nearly all teens have smartphones and can access the internet at almost any time and place.

Thomas said that requiring proof of age is an “ordinary and appropriate means” of protecting minors without impeding adults’ access to obscenity. “Age verification is common when laws draw age-based lines, e.g., obtaining alcohol, a firearm, or a driver’s license,” Thomas said. “Obscenity is no exception.”

Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson dissented from the majority and argued that Texas’ law should have been reviewed under strict scrutiny.

Writing on behalf of the three, Kagan said that the majority’s opinion was, “to be frank, confused” and would cause a chilling effect on First Amendment and privacy rights.

“It is not, contra the majority, like having to flash ID to enter a club,” she wrote. “It is turning over information about yourself and your viewing habits—respecting speech many find repulsive—to a website operator, and then to … who knows?”

Paxton lauded the ruling as a major victory for children and parents.

In a statement to WORLD, Alison Boden, executive director of the Free Speech Coalition, called the ruling “disastrous” and said the government should not be able to require that individuals “sacrifice our privacy and security to use the internet.”

Bob Corn-Revere, an attorney at the Foundation for Individual Rights and Expression, echoed Boden’s concerns. He told WORLD that the law gives people pause because websites are prone to data breaches.

“The impact [of age verification] is wildly different on the internet than it is in the brick-and-mortar context,” Corn-Revere said. “This is dangerous for the future of speech online if there isn’t a constitutional protection against requiring people to identify themselves to get access to speech.”

He said he was surprised by the court’s decision to go against previous precedent. In similar, older cases, the court had leaned on strict scrutiny—which Kagan also pointed out.

John Bursch, an attorney at Alliance Defending Freedom, agreed that Friday’s ruling represents a shift from precedent. As the internet continues to grow, this decision makes clear that states can pass laws to protect minors from explicit content.

According to the Supreme Court’s ruling, at least 21 other states have similar laws for pornographic sites. Now, more states have a green light to implement these age-verification requirements, Bursch said.

Texas’ law has already affected residents statewide, he added. Last year, the site Pornhub suspended operations in the state due to the regulation.

“We may be able to see a reduction in the amount of porn in this country,” Bursch said. “There are all kinds of terrible downstream societal effects that come from pornography, and so to see this [ruling] makes a big difference.”