Supreme Court to hear online age-verification case

To Texas Attorney General Ken Paxton, the concept seems simple enough: Online distributors of pornography should check customers’ ages just like brick-and-mortar “adult stores” do. But checking someone’s ID in the internet age brings up legal questions so contentious and complex that the Supreme Court has decided to get involved.

Last week, the U.S. high court agreed to review a lower court’s ruling upholding a Texas law requiring pornographic websites to verify the age of users.

Gov. Greg Abbott signed the bill into law in June 2023 to protect minors from accessing pornography. Several free speech organizations contend the regulation violates First Amendment rights.

The law states that only users 18 or older may access websites with “sexual material harmful to minors.” It applies to sites with more than one-third of content deemed harmful.

To verify age, users must provide digital information to verify 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 to verify the age of an individual.”

The state can fine porn sites up to $10,000 for every day they operate without age verification and levy an additional $250,000 against a website if a minor accesses sexual material on it because of a lack of verification.

The Free Speech Coalition, a trade association for pornography producers, filed a lawsuit in August 2023 challenging the law. The producers allege the age verification requirement is invasive, burdensome, and impedes constitutional rights.

While a U.S. district 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.

In April, the porn industry group appealed to the Supreme Court, and last Tuesday the high court decided to review the case.

“Despite proponents’ claims, online age verification is simply not the same as flashing an ID at a checkout counter. The process is invasive and burdensome, with significant privacy risks for adult consumers,” Alison Boden, executive director of the trade group, said in a statement. “Sexual expression is the canary in the coal mine of free speech, and we look forward to defending the rights of all Americans to access the internet privately and free from surveillance.”

The 5th Circuit’s reversal went against decades of Supreme Court precedent, said Bob Corn-Revere, chief counsel at the Foundation for Individual Rights and Expression (FIRE), which filed a brief in support of the Free Speech Coalition.

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. The 5th Circuit ruled the Texas law only needed to be rationally related to a legitimate government interest, a standard known as “rational basis review.”

“Keeping children safe is important, no doubt. But the means used to achieve this worthy end matter, and the government must bear the burden of proving their constitutionality,” FIRE wrote in its brief. “Requiring adults to verify their ages before accessing protected content imposes a significant burden on the exercise of First Amendment rights online.”

Texas Attorney General Paxton maintains the law and the 5th Circuit’s ruling don’t go against court precedent.

“[The law] simply requires the pornography industry that makes billions of dollars from trafficking in obscenity to take commercially reasonable steps to ensure that those who access the material are adults. Nothing about that requirement is exceptional,” Paxton said in a court brief. “What is exceptional is petitioners’ request that this court nullify Texas’s ability to protect minors from hardcore pornography based on nothing but a thin preliminary-injunction record.”

The brief added that more than a million Texas youth have had unwanted online exposure to sexually explicit material.

State Rep. Matt Shaheen, the bill’s author, said he is confident the high court will uphold the law.

“[The law] is no different than other websites around the world that require age verification to protect children from harmful materials such as alcohol or tobacco, let alone adult content,” he said in a statement on X, formerly known as Twitter.

At least eight states have laws requiring adults to submit to age verification before accessing pornographic content, including Florida, Kentucky, and Louisiana, according to FIRE’s brief. Eleven other states have considered similar legislation in the last year.

At the end of June, a district court in Indiana blocked a pornography age verification law from going into effect this month. The court’s decision came just weeks after porn trade association sued the state.

In Utah, the legislature passed a law this year to restrict social media use and access for minors. Corn-Revere said state lawmakers partially relied on the 5th Circuit’s decision to implement the law.

Last week in Mississippi, a federal court temporarily barred a law from taking effect that would require digital service companies to verify users’ age and require parental consent for minors to register.

The Supreme Court will hear arguments on the Texas case sometime after its next term begins this October, with a ruling expected by July 2025.