Supreme Court considers age verification for porn sites

The Supreme Court heard arguments Wednesday on an age-verification law in Texas. The justices will deliberate whether the state’s law, which requires pornography sites to verify users’ ages, violates First Amendment rights. Texas Attorney General Ken Paxton contends the regulation protects children from explicit material, but challengers argue it restricts protected speech.

While the justices initially keyed in on the effects of pornography on children, the oral arguments boiled down to what standard of review the court should use to evaluate the law’s constitutionality.

Signed into law in June 2023, Texas’ law requires pornography sites to verify the age of their users before providing access. Paxton compared the regulation to how brick-and-mortar “adult stores” require customer age checks.

The law mandates that only users 18 and older may access websites if more than one-third of their content is “sexual material harmful to minors.” To verify age, sites must require users to either provide digital information to prove their identity, comply with a third-party verification system that uses government-issued identification, or use a “commercially reasonable method that relies on public or private transactional data.”

The Free Speech Coalition, a trade association for pornography producers, filed a lawsuit in August 2023 challenging the law. The association alleges the age verification requirement causes “adult users to incur severe privacy and security risks,” according to the group’s Supreme Court appeal.

Senior U.S. District Judge David Alan Ezra sided with the producers in 2023 and issued an order that temporarily barred the state from enforcing the requirement. Ezra ruled that Texas’ law was nearly identical to the Child Online Protection Act, which the Supreme Court deemed likely unconstitutional in the 2004 case Ashcroft v. American Civil Liberties Union.

The 5th U.S. Circuit Court of Appeals reversed the lower court’s decision later that year, allowing Texas’ regulation to take effect. The producers then appealed to the Supreme Court in April.

The case centers on whether the 5th Circuit erred by applying a category of review known as rational basis, as opposed to the higher-level category called strict scrutiny. Courts have held that laws burdening free speech must pass strict scrutiny, meaning they use the least restrictive means to serve a compelling government interest.

While the 5th Circuit agreed that the age-verification regulation was “very similar” to the Child Online Protection Act, it ruled the Texas law only needed to be rationally related to a legitimate government interest, a standard known as rational basis review.

The 5th Circuit leaned on the Supreme Court’s 1968 decision in Ginsberg v. New York, when the high court used rational basis review to determine that states can restrict children’s access to harmful sexual materials.

Even if Ginsberg does not apply to this case, Texas argued that its law still meets strict scrutiny as it is the least restrictive way to achieve the state’s aim to shield children from pornography.

The producers argued otherwise, claiming that Texas could use less restrictive alternatives, such as content-filtering software, to limit children’s access to inappropriate material “without burdening adults’ access to speech they have a right to receive.”

In Wednesday’s two-hour-long arguments, the justices initially expressed concern for how pornography sites affect children. “The explosion of addiction [to] online porn has shown that content filtering isn’t working,” said Justice Amy Coney Barrett.

Justice Samuel Alito noted that the high number of states with age-verification requirements—20 states have enacted similar laws since 2021—seems to indicate content-filtering doesn’t work.

Attorney Derek Shaffer, representing the producers, contended that these laws chill speech and have skipped over less restrictive options such as content filtering.

Justice Sonia Sotomayor reeled the arguments back to the question of strict scrutiny or rational basis review. She pointed out that if the court rules in favor of rational basis review, that would overturn precedent from at least five cases.

Arguing for the Biden administration, principal deputy solicitor general Brian Fletcher said that Texas’ law could meet the standards of strict scrutiny under a slightly different interpretation of it.

“It seems to me that there are possible spillover dangers,” Justice Elena Kagan countered. “You relax strict scrutiny in one place and all of a sudden strict scrutiny gets relaxed in other places.”

Fletcher replied that this case isn’t “watering down” strict scrutiny, it’s just applied differently because of Texas’ concern for children.

Texas Solicitor General Aaron Nielson said the justices should uphold the 5th Circuit’s interpretation of Ginsberg, as it establishes that laws can burden adults’ rights to protect children.

Justice Ketanji Brown Jackson disagreed, stating that Ginsberg established the burden states could put on children’s rights, not adults. The Texas case looks at how burdensome the state’s law is on adults, and strict scrutiny is the test used to evaluate that.

“Because the adults have a certain scope of First Amendment rights, you can only impose a burden that is the least restrictive way of reaching your compelling interest,” Jackson said.

Ari Cohn, lead counsel at the Foundation for Individual Rights and Expression, told WORLD that, if Texas’ law only affects children’s rights, the standard of scrutiny would be low. Because the law affects adult speech, the standard is raised to strict scrutiny. Just because Texas’ law aims to protect minors, doesn’t mean it necessarily escapes that standard, Cohn added.

“Every time the state wants to restrict something for children (that they can restrict for children), if they can then curtail adults’ rights … that could lead to severe degradation of adults’ First Amendment rights,” Cohn said. “It’s a dangerous proposition.”

Cohn expects that justices will send this case back to the 5th Circuit and likely ask it to review the case using strict scrutiny. He doesn’t anticipate the justices will decide on the law’s constitutionality.

However, supporters of Texas’ regulation worry that a decision upholding strict scrutiny could hurt children. Brent Leatherwood, president of the Ethics and Religious Liberty Commission, said that in the oral arguments, the justices seemed to recognize this harm.

“The porn industry’s attorney seemed to envision a world where hardcore websites are somehow beyond the government’s compelling interest to protect children from harm,” Leatherwood said in a statement. “A majority of justices were having none of it.”